2024 Law Letter Autumn/Winter - Issue 143

#143 - AUTUMN/WINTER 2024

LAW LETTER JOURNAL OF THE LAW SOCIETY OF TASMANIA

Ceremonial Sitting

200th Anniversary of the Supreme Court of Tasmania Parens Patriae To Will and

Ceremonial Sitting

Positive Duty

Preference: The Evolution of

The Honourable Associate

to Eliminate Workplace

the Guardianship Framework

Michael Daly

Sex Discrimination and Harassment

in NSW and Tasmania

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LST.ORG.AU

SUBMISSION OF ARTICLES AND ADVERTISING Contributions to the Law Letter are always welcome. For further details or advertising rates please contact Shelley Harwood on (03) 6234 4133 or shelley.harwood@lst.org.au. Further details including writing guidelines and advertising rates can be viewed on the Society’s website.

Views expressed by contributors are not necessarily endorsed by the Law Society of Tasmania. No responsibility is accepted by the Law Society of Tasmania, the editor or the printers for the accuracy of information contained in the text and advertisments.

Editor:

Phone: Email: Web:

Luke Rheinberger Executive Director GPO Box 1133, Hobart, Tasmania, 7001 28 Murray Street, Hobart, Tasmania, 7000 (03) 6234 4133 info@lst.org.au lst.org.au

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From The President

04

DNA Wrongful Conviction in 2024

30

Ceremonial Sitting

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Plea in Mitigation - An Overview

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From Convicts to Computers

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Cartel Conduct: The $50 Million Risk

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Parens Patria To Will and Preference:

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No Child Was Harmed:

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Ceremonial Sitting

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An Introduction to Expert Evidence

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Judicial Independence 101

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Duty to Eliminate Workplace

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Early Career Lawyer Committees Opinion Finance Family Law Case Notes

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to Mark the Occasion of the 200th Anniverary of the Supreme Court in Tasmania

Two Hundred Years of The Tasmanian Supreme Court

The Evolution of the Guardianship Framework in NSW and Tasmania - Malcolm Schyvens

Honourable Associate Michael Daly

The Honourable Justice Stephen Estcourt AM

Discrimination - Craig Green

Helen Roebuck

The Honourable Justice Tamara Jago, Magistrate Jackie Hartnett and Magistrate Marica Duvnjak

Madelaine Holt

The Emergence of Child Sexual Abuse Offending Using AI Technologies - Dr Georgina O’Donnell

Professional Witnesses - Avoiding the Smoke and Mirrors Christopher Shanahan SC

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From The President 2024 has proven to be an extremely busy year for the Law Society of Tasmania.

On behalf of the Council of the Society I am pleased to congratulate the five practitioners who were recently appointed Senior Counsel: Christopher Noel Dockray; Leigh Kathryn Mackey; Matthew James Verney; Thomas David Cox; and Mark Cameron Rapley. The appointments are a fitting recognition of each practitioner’s skill, integrity, honesty, diligence, and experience. I also had the honour of representing the Law Society of Tasmania in Melbourne to speak at the Ceremonial Sitting of the judicial appointment of Kate Cuthbertson to the Federal Court of Australia. This is certainly an appointment to be congratulated.

One of my highlights for this year has been participating in the Supreme Court bicentennial celebrations. As a profession, we should be proud to be able to say we have the oldest Supreme Court in the country. I acknowledge the hard work of the staff at the Supreme Court along with the Chief Justice in relation to those events.

As you are aware one of my key concerns and objectives has been focusing on attraction and retention of early career lawyers. This is an issue throughout Australia and there is no short-term solution. The Attraction and Retention of Early Career Lawyers Working Group has now completed presentation of the CPD event, “Basics of Practice: Information for Early Career Lawyers” across the state. We had good participation rates for attendees in each region including law students working in firms as paralegals. This also allowed an opportunity for our early career practitioners and paralegals to be able to meet members of the Law Society Council Executive and engage in a less formal environment.

This year I have also attended at the Legal Practice Training Course to meet students to talk about practice in Tasmania. Those students have now completed the course and I congratulate them on their admission. The Executive Director, Luke Rheinberger attended the Course. The expansion of the students to be able to travel to Launceston along with the Northwest Coast to meet the profession has proven successful and I am aware of several

private firms and government organisations being able to recruit students for graduate roles.

Various members of the Attraction and Retention of Early Career Lawyers Working Group have participated in career expos hosted by colleges. This will continue in 2025 and we are looking for opportunities to do this in the regions.

As you are aware one of my key concerns and objectives has been focusing on attraction and retention of early career lawyers.

We have also been engaged with Tasmanian University Law Society (TULS), particularly around development of a policy in relation to internships. We want the Tasmanian profession to have priority over interstate firms. We want students to obtain exposure to working in Tasmania so they will stay. We have also had discussions with TULS around less formal work experience options, engaging with practitioners in the North and Northwest, engaging with the early career lawyer’s committees in each region, along with making them aware that there are a lot of opportunities in Tasmania for students to work at law firms while they are studying. We are hopeful that this information sharing and expanding communications will assist in filling much needed positions.

Many of you are aware that the University of Tasmania hosted the Australian Law Students’ Association competitions recently. I was one of the many practitioners who assisted with judging. The Legal Practice Training Course had a stall there with information available for interstate students to encourage them to undertake their training in Hobart and then look at job opportunities in Tasmania.

The Executive Director and I have been heavily involved in the Justice Forum meetings which are attended by various head of Tasmanian jurisdiction and chaired by the Attorney General. The primary focus has been the development of the Judicial Commission bill which has been released for public consultation. The next meeting is early August, and we look forward to review of the feedback received in relation to the draft bill. The Law Society of Tasmania does support the creation of a Judicial Commission in Tasmania.

The other focus at the Justice Forum and for me has been around the Burnie Court Complex and whether it will include a fifth Court which can be used for family law. I am hoping to receive an update in August in relation to discussions between the state and the Commonwealth. This is a serious to justice issue and if the Burnie Court Complex does not have a fifth court, then we need to know what other options are available for family law cases.

We will continue to be busy over the next couple of months. The Executive Director and I will travel to Melbourne to attend the 2024 Victorian Legal Sector Dinner and then in early September travel to Perth to meet with other Presidents and to attend the annual Western Australia dinner. In September 2024, Tasmania will be hosting the High Court of Australia.

I lastly want to acknowledge the work of staff at the Law Society over the last couple of months. The work and resources applied to the task of PC renewals is significant.

JULIA HIGGINS

President

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6 | LAW LETTER

Ceremonial Sitting in The Supreme Court of Tasmania To Mark The Occasion of The 200th Anniversary of The Supreme Court - 10 May 2024

TRANSCRIPT OF PROCEEDINGS

when we die we go back to the land.

BLOW, CJ: I’ll begin by inviting Dewayne Everettsmith to present the Welcome to Country. Dewayne is the cultural education officer within the Tasmanian Aboriginal Centre, and he’s an accomplished musician and composer.

So Country, which includes sky, land, and waterways, is everything to us. It’s our education system, it’s our health system, it’s our church, it’s our temple, it’s our justice and legal system. I’m descendent of Mannalargenna and Tanganutura who are both traditional people from the north-east nation of lutruwita Tasmania. And in 1810, as part of the kidnapping of Aboriginal women and girls who were taken to lungtalanana Clark Island and trowunna Cape Barron Island, my greatgrandmother Isobel Beaton and my greatgrandfather George Everett were both born and raised on trowunna Cape Baron Island, as well as my grandfather Benjamin Everett.

WELCOME TO COUNTRY – MR EVERETTSMITH: Nayri nina-tu. Thank you very much for coming along and providing a Welcome to Story, or as we like to call it, a Statement of Country, to celebrate Western law here in lutruwita Tasmania. I’m a proud palawa. My name is Dewayne Everettsmith, I’m a proud palawa, proud Tasmanian Aboriginal man, and my existence as a proud Tasmanian Aboriginal man continued until 1995, where it was maintained that Truganini was the last Tasmanian Aboriginal person, and there were no Aboriginal people left. I was eight years old when I was finally acknowledged as a Tasmanian Aboriginal person. Yet my education system taught me there was none – none of us left.

And so my creation as a palawa man begins with panupiri the sun, and withi the moon, and moinee, the great southern star, who reached down and took soil from this Country here in lutruwita Tasmania and took it back up to wurangkili, sky country, where he combined our body with our spirit. And he sent us starhopping all the way down in the stars until we made it back to this beautiful island, lutruwita Tasmania. And we believe, as palawa people, that we’ve been here for always. That we come from the land, we live as part of the land, and

And it was in the 1940s, 50s, where the then Tasmanian government had an assimilation policy to force Aboriginal people off Cape Baron Island into mainstream Tasmania; into suburbs like Invermay, Penguin, and West Moonah.

And there are stories where the Aboriginal parents would walk their children down this particular track on Cape Baron Island, and on this particular day they walk their children to a particular part of this track, they wave goodbye to their children, “We’ll see you after school here.” And only the parents to return to pick up their children where the government have come in, forcibly removed those children, and put them in homes on mainland Tasmania. And that was in the 1950s, post-World War I, World War II. And quite often, what we hear from the system is, “Get over it. It happened a long time ago.”

But yet, that’s what we were facing in the

1950s. I fast-forward that to 1970, a beautiful ten years, because that’s when my mother was born. In 1963 she was born, but in 1970 she returned to lutruwita Tasmania with her father, my grandfather Benjamin Everett, and my great – and my grandmother Stella Hood, who was a Gunaikurnai woman from Victoria.

And they returned to pataway Burnie, and they were living homeless in a tent in pataway Burnie. And it was at this time the Tasmanian government then forcibly removed my mother and my aunties off my grandfather and put them in a home in Launceston. So, my mother is a member of the Stolen Generation. And my grandfather fought the government for many years to have his children returned to his custody, and he won that battle eventually, and the children returned to him, and he brought the family here, to nipaluna Hobart.

And that’s where my living stories begin. I was born at the royal nipaluna hospital, and I first – spent the first six weeks of my life in that hospital because my mother was a drug addict.

She was addicted to speed because of her many years of trauma and trauma within her story. And so she collected me eventually after six weeks when I went back to Bridgewater and I lived with her until I was about 3, 4 years of age. And then she handed me over, she gave me up as – willingly. And she gave me to a beautiful family, the Smith family. Fanny Cochrane Smith’s family.

So I was brought up strong in culture. I was very lucky. Many children at that time, let alone today, did – don’t get adopted into other Aboriginal families, and I was one of the

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with you another quick story about – we call him Uncle Cracker. He’s my uncle, Michael Everett, and he was a phenomenal football player, but he had experienced many levels of trauma.

And Franklin Square was a place where our people would hang out right up until the early thousands, was the only place they could go to hang together as a community. They would drink, get arrested, and locked up. And my Uncle Cracker was part of those stories. And so he had children, my cousins, who then went on to fall into the system of incarceration.

My Uncle Cracker had a life of incarceration.

That’s all he knew. So when he came out of that, he ended his life, because incarceration was all he knew. And my cousins have fallen into that pattern of behaviour.

lucky ones. And so I was brought up strong in culture. And my mother gave me to my grandmother, Bev Smith, who married an Aboriginal man, Stan Smith, who is the greatgrandchild of Fanny Cochrane Smith. And she’s a proud non-Aboriginal woman, and my mother handed me over with a Purity bag.

Those who remember Purity – yeah, yeah, not Woolworths. It’s Purity. Yeah, yeah.

She handed me over with a Purity bag and said, “Here, I want you to have him.” And from that moment on, Bev Smith, who’s my grandmother, who’s technically my mother, took me home and raised me to be the person I am today. She introduced me to education, she introduced me to love, unconditional love, but it also – she also introduced me to music. That became my version of a psychologist. Free, because I don’t have to pay for it.

And so, it was in 1803 the first massacre of Aboriginal people occurred in Tasmania at piyura kitina Risdon Cove. And Risdon Prison overlooks that massacre. In fact, Risdon Prison is not only built on a heritage site, it’s built on the continuation of where that massacre occurred. And so not only are we the most incarcerated people in the world, here in lutruwita Tasmania we’re locked up on a massacre site that overlooks another massacre site. And so that is cultural safety not in action.

That’s cultural safety not considering our needs as Aboriginal people.

And so this is where you become our cultural ally. This is where you can understand these stories, learn these stories, and that’s what truly bridges the gap of understanding when moving forward meaningfully and as a collective. So, in my language, I’ve just gathered us for ceremony to exchange knowledge, and the gift of knowledge with each other. And to finish this off, I’d like you to sing – sing you a song in my language called milaythina nika mana-mapali. And I would like you to join me for the chorus, if that’s all right.

Nah, I’m just joking. I just wanted to make you nervous. That – that was – that was for me.

Nayri nina-tu. Thank you.

And so the importance of that story is because my grandmother became the great cultural ally of our family within the Smith family. Because my grandfather, he was a bit of a larrikin.

Anybody familiar with the top, middle, and bottom stories of Cygnet? Of pub – the pubs down there? Yep? Well, my grandfather was at the centre of those stories. And so he was a bit of a larrikin. And so my nan raised eight children, including my auntie Belinda, who was disabled and who needed 24 hour care. And I became her ninth child.

BLOW, CJ: Thank you very much, Dewayne.

I follow Dewayne by acknowledging the traditional owners of the land on which the Hobart buildings of the Supreme Court stand, the muwinina people. Tragically, the muwinina people have no known living descendants.

I acknowledge the palawa people, today’s Tasmanian Aboriginal community and pay my respects to their elders, past, present and emerging. And thank you very much, Dewayne, again for your Welcome to Country.

And if it wasn’t for my grandmother and the allyship that she took in standing and being our advocate for our culture and identity as Aboriginal people, we wouldn’t be here, who we are today. And so this – I want to share

I’d like to welcome all the visitors who have come here this morning. There are too many distinguished visitors for me to acknowledge all of them, individually, but I particularly welcome four visiting Chief Justices, Grant

CJ, from the Supreme Court of the Northern Territory; Ferguson CJ from the Supreme Court of Victoria; Bell CJ, from the Supreme Court of New South Wales; and Mortimer CJ, from the Federal Court of Australia. I’m very pleased that you’ve all made the journey to Hobart for this significant occasion. I also welcome two of my predecessors, the tenth Chief Justice of Tasmania, Sir Guy Green and the 11th, the Honourable William Cox. Her Excellency, the Governor and Gageler CJ, the Chief Justice of Australia are both unable to be with us this morning, and both have sent their apologies. Today marks the 200th anniversary of the first sitting of the Supreme Court of Van Diemen’s Land on the 10th of May 1824. On that day it appears that the proceedings commenced with the first Registrar of the Court, William Sorell, reading aloud the Charter of Justice of the 13th of October 1823 by which the court was established. My predecessor, John Pedder CJ, admitted four gentlemen as practitioners of the court; the Registrar, the Solicitor General and the Attorney General swore the appropriate oaths; and that was the extent of the proceedings. The Hobart Town Gazette reported that: The deep interest excited by the opening of a court of judicature with competent power in criminal as well as civil causes, was evinced by the court being crowded upon this occasion with the most respectable inhabitants of Van Diemen’s Land.

It’s gratifying to see so many respectable inhabitants here this morning. Hobart Town had been established 20 years previously. By 1824 it had a white population of about 12000.

About 6000 of those were convicts serving sentences. A new court building was erected at the corner of Macquarie and Murray Streets, across Murray Street from the original Hobart Gaol. That building was used by the court until 1860. It’s still standing, forming part of the Treasury buildings, but there’s nothing there now to indicate that it was once a freestanding courthouse.

It ceased to be used after the criminal courts were established at the Hobart Penitentiary site in Campbell Street and new civil courtrooms were established at the other end of the Franklin Square complex, adjacent to the park. In 1824, Van Diemen’s Land was still part of the colony of New South Wales.

Although the new Court had full civil and criminal jurisdiction, the New South Wales Act 1823 required criminal cases to be tried by a judge with a jury of commissioned officer of his majesty’s Sea or Land Forces. The establishment of the Tasmanian Parliament was still 32 years away. Even when it was established in 1856, no women had the right to vote, nor did many men.

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Over the last 200 years, Van Diemen’s Land has made the transition from being a remote part of a penal colony in the empire of a distant motherland to being a state in an independent nation with a democtractic federal system of government and an independent jucidiary.

Throughout those 200 years there’s been widespread respect for the rule of law, without which our society wouldn’t function. The court is greatly indebted to my colleague, Stephen Estcourt J, who has written its history. His book, From Convicts to Computers: Two Hundred Years of the Tasmanian Supreme Court is being published today. It will be launched after the court adjourns and refreshments have been served.

The court has a proud history, although, it must be said that some of the changes over the last 200 years could have been effected earlier. Juries of civilians didn’t replace juries of military officers until 1840. Legislation allowing women to practise law was enacted in 1904, but it wasn’t until 1935 that the first female legal practitioner was admitted.

Women were permitted to volunteer for jury duty from 1939, but it wasn’t until 1959 that the first female juror was empanelled. The first female judge, Shan Tennent J, who’s here today, wasn’t appointed until 2005. Purely by chance, the first sitting of our Court took place seven days before the first sitting of the Supreme Court of New South Wales. It will be celebrating its bicentenary next Friday, the 17th of May. Although Gageler CJ has been unable to attend today, he has posted the following message on the High Court’s website in relation to the two courts: Letters Patent pursuant to the New South Wales Act 1823 explained their establishment

to have been for the “better administration of justice” and “more effective government” in the colony then known as New South Wales.

Their establishment furnished the stable legal foundation for the ensuing creation and development of institutions of representative and responsible government in New South Wales and Tasmania. Their foundational roles were expanded when each took its place as one of the six state Supreme Courts within the indissoluble system of national government agreed to by the Australian people and established by the Australian Constitution.

Their nationally expanded roles endure.

They have facilitated the realisation of Alfred Deakin’s prediction in 1902 that “the natural development of the Australian judicial system” would make the unity of our courts “more pronounced, and the gradation more perfect.”

The Australian judiciary, as a whole, joins with the Supreme Court of Tasmania and the Supreme Court of New South Wales in celebrating this significant milestone in our shared national journey.

Over two centuries, this Court has grown and developed in parallel with the growth and development of the Australian judiciary, the Tasmanian population and modern Tasmanian society. We’ve made the transition from quill and parchments and javelin men to computers, audiovisual links, and security screening devices. There have been legal and political controversies along the way, but respect for the rule of law and Tasmania’s independent judiciary has been reasonably constant throughout the journey.

The ways in which this court functions today could hardly have been foreseen 50 years ago, let alone 200 years ago. It seems likely that the pace of change will continue to accelerate as the court continues on its journey into its third

century. I think we can be confident that the court will meet the challenges. I now invite the Attorney-General for Tasmania, the Honourable Guy Barnett MP, to address the Court. <MR BARNETT: May it please the Court.

Today we gather at this ceremonial sitting to both look back into history, and look forward to the future. 200 years ago, on this very day, the oldest Supreme Court in Australia, the Supreme Court of Tasmania, commenced its work as one of the three anchors of constitutional government in this state. This important institution has played a pivotal role in shaping the Tasmania that we know today.

It is decisions made there that have impacted how we live our everyday lives for the better.

While most aspects of life in Tasmania have changed markedly over the last 200 years, the important role the Supreme Court plays as Tasmania’s highest court remains unaltered.

This is a testament to our stable and thriving democracy. The Supreme Court is, of course, an essential and core element in upholding and strengthening that democracy and the rule of law.

Created by an act of the Sovereign under the Third Charter of Justice in 1824, the court is a key element of an unbroken thread that connects us to the British legal and democratic tradition, and the Judeo-Christian ethic of which it – on which it rests. Chapter 40 of the Magna Carta, the founding document of the Rule of Law and part of the so-called invisible cargo of the first fleet states: To no-one will we sell; to no-one will we refuse or delay right or justice.

That ancient principle is an essential legal and constitutional inheritance from the British Empire and forms the foundation of the court

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and its role as an independent and impartial tribunal. This court anchors our ship of state.

It lets its – lets is rest upon 200 years of constant existence that has given us confidence in our stability, but it also lets us respond to the new situations that are and will constantly be emerging as the years progress. By the very definition, courts embrace both constancy and change. Rules and laws that cannot adjust to change – changes in our society trap us in a past that denies change.

But change on its own without a connection to the past can only promote a sense on inconsistency, of fickleness and uncertainty in changing times. There must be change, but there must also be stability. Stability is brought about by a continuous thread that runs through our history and our lives and that thread is this court. For 200 years it has kept us on an even keel, and it has slowly changed us. As new cases are decided, they create change in our lives, some in small ways and others more significantly. By preserving the rule of law, this court creates a safe harbour and in doing so, allows society to progress in a measured manner.

There can be no more important purpose for the Court than bringing about justice, because in justice there is peace and there is no greater gift that can be given to us. It is an unhappy truth that although we all have a sense of justice, too often our definition of injustice is: I didn’t get what I wanted.

That is not the justice of a Court. Justice is impartiality, fairness, reasonableness. It is independent, patient, honest and objective.

Those are the high ideals to which our courts aspire. Without justice we could say, as did the poet, William Butler Yeats: Mere anarchy is loosed upon the world.

This is the point at which justice of our Supreme Court of Tasmania stands. It is the still centre of the storm and the rock upon which our society is founded. For 200 years now, it has been woven into the web of our society and today we celebrate its birth as we celebrate its protection of our birthright, our justice, our rights, and our advance into the future. May it please the Court.

It’s easy to imaging a court as just another organisation, divorced from the reality of the lives of ordinary Tasmanians, referred to occasionally in the media at the time as:

BLOW, CJ: Thank you, Mr Attorney. Next, I invite the president of the Australian Bar Association, Mr Phillip Dunning KC, to address the Court.

A set of snapshots, only occasionally touching the attention of those who live here.

<MR DUNNING KC: Blow CJ, Justices of the Supreme Court, former Chief Justices of South – of Tasmania and Justices – former Justices of the Supreme Court of Tasmania, Chief Justices of – many of the Australian jurisdictions, it is my privilege and my pleasure in equal measure to rise on behalf of Australia’s more than six thousand barristers to offer their appreciation and congratulations to the Supreme Court of Tasmania on this most historic day. Historic is of course a much overused word but not on this occasion.

But to do that is a mistake to the superficial for the meaningful. This court is the quiet defender of all Tasmanians against unwarranted interference with their rights and its fierce independence protects us all. As Aristotle said: It is injustice that the ordering of society is centred.

We come together today to recognise a remarkable institution that has a remarkable legacy and it is very fortunate the Bar gets to address today because in a practical sense this is really where it all began for the Australian Bar together with the Supreme Court of New South Wales. The creation of a judicature and the move from military justice has had far reaching impacts in Australia and beyond. It is the creation of a superior court of record here and in New South Wales that became instrumental in the protection of the individual, marked out that most important judicial function of standing between the State and the citizen, promoted an economic prosperity which we all enjoy and became the building blocks of our liberal democracy.

As Blow CJ acknowledged earlier, the Supreme Court of Tasmania predated the parliament in this state and the parliament in the other colonies and later in the federation and the states. Yet, the creation of the Supreme Court in Tasmania and the Supreme Court in New South Wales was one of the essential integers for that occurring. The Supreme Court is not only an institutional requirement of our modern life it is one of its institutional safeguards. The vital role of an independent judicature served by judicial officers of integrity and competence cannot be overstated. The contribution that the Supreme Court of Tasmania has made for the last 200 years is appropriately celebrated today.

And indeed the role that this court ultimately paved the way for federation in 1901 and the creation of the High Court in 1903 by the standards it set and the developments it made are properly to be recognised on a day like today. It’s also proper to recognise on a day like today the court, as have all other aspects of our democracy, not been perfect. It is right that we recognise that the interaction between our legal system and our First Nations People has been imperfect and Dewayne spoke

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eloquently and poignantly to that today. Yet, in its failings is its ultimate strength.

The fact that courts have been able to address and redress wrongs of the past, to recognise the need for that to be a matter that is continuing, demonstrates the important place that courts play in bringing peace to our relationship with our First Nations People. Blow CJ, Justices of the Court, today is a justifiable – a day of justifiable pride for all Tasmanians. Your contribution to the creation of the Australian liberal democracy today, as it was 200 years ago has been as profound as it has been emphatic.

I wish the court the very best for the next 200 years and offer the warmth and congratulations of the Bar nationally. May it please the Court.

BLOW, CJ: Thank you, Mr Dunning. Next I invite the President of the Law Society of Tasmania, Ms Julia Higgins to speak.

MS HIGGINS: Thank you, your Honour. I also want to acknowledge the traditional owners of the land on which we are meeting today. I acknowledge Aboriginal people here who are present, Elders past and present. On behalf of the Law Society of Tasmania I congratulate the Supreme Court on this wonderful milestone.

The Law Society is immensely proud to be able to say we have the oldest Supreme Court in Australia here in Tasmania. Over the years, the Law Society have been very fortunate to enjoy a close and cordial relationship with the supreme court.

The Rules establishing the Law Society’s predecessor, the Van Diemens Land Law Society dated 29 October 1845 included the following objects: to promote fair and honourable practice among members of the profession; to attend to applications for admission and to

impose improper applications; to offer from time to time such suggestions respecting the practice in any of the courts and expecting alterations of the same as may appear useful.

It seems that over the intervening 179 years that those important aspects of the relationship between the court and the Law Society have continued.

The Law Society wants to acknowledge the present members of the judiciary of this court and past members who have assisted in providing education to our – to members of our profession through when they were students at the university, students at the Legal Practice Course and of course as practising practitioners. Today we acknowledge the existence of 200 years of what is an important institution for Tasmania and celebrate one of the key foundations of the rule of law. The very existence of a free society depends upon an independent judiciary operating through an independent court system that is respected by the Executive, the Legislature and the public.

The 200 year anniversary of the first sittings as noted means that this court has achieved many memorable milestones and events. I seek to highlight some of that information. As your Honour has pointed out, on 10 May 1924, the Supreme Court held its first sittings and it admitted to practice four practitioners, Joseph Tice Gellibrand is noted as number one on the Roll followed by George Cartwright, Hugh Ross and Frederick Doors. That same year, six more practitioners were admitted. Between 1824 and 1831 the Supreme Court admitted an additional twenty one practitioners.

As of yesterday, a review of the Supreme Court Roll indicates that over the last 200 years there have been 5584 practitioners admitted to

practice. As your Honour has already pointed out, in the eighteen hundreds there was a practice enforced at the time which would not even comprehend female lawyers and there was certainly no precedent of women becoming lawyers in any of the Australian states.

Tasmania of course, was the second state to embrace this in 1904. But, as your Honour has pointed out, it was not until 1935 and February that the first female, Ms Nancy Helen McPhee was admitted to practice in this court. In 1969 the first female associate was appointed to Burbury CJ. And then that of course was followed by the second female associate, Professor Kate Warner. As your Honour has pointed out, the first female appointed to the bench was Tennant J. That followed, following in 2009 by Tasmania’s first magistrate, her Honour Wood J and then of course in 2021 Jago J. This court has provided over the years a platform for many Tasmanian female lawyers to achieve excellence in legal practice and advanced opportunities for the Tasmanian profession including women. Sir John Pedder was the first Chief Justice of the Supreme Court serving for some 30 years, 1824 to 1854. Since that time, there have been 13 Chief Justices presiding over this court. We note of course your Honour has been in that role since 8 April 2013.

The Law Society wants to acknowledge each and every Chief Justice of this court and particularly those who are here today for the contribution that they have made. And also acknowledge the significant responsibility that comes with that role. There of course have been 42 judges of this court over the last 200 years. And once again, the Law Society wants to acknowledge and thank each of this

11 | LAW LETTER judges, current judges and past judges for their contribution in that role. The office of Master of Van Diemens Land included an initial appointment of Joseph Horne in 19 – sorry, in 1824, the title of Master of course changed to Associate Judge in 2008.

There have been five Masters/Associate Judges in this court with the most recent appointment on 28 April last week for his Honour. Since 1824, there have been 18 Registrars of the Supreme Court. All those I have mentioned are pivotal in relation to the role of this court in securing a peaceful and free society governed by the rule of law. The Law Society acknowledges the significant workload of this court which has been constant over the years.

The first operation of the court back in 1824 was very busy with over 344 summons issued, 360 actions commenced, 25 tried and 62 judgments made on warrants of attorney.

Capital punishment was still very much alive and the gallows were inside the gaol which faced on to Murray Street, opposite the Supreme Court and coincidently the current site of the Law Society. It was in full view of the street outside and crowds often gathered to watch. It is reported that at least 203 criminals were ordered to be hung by this court between 1826 and 1842. The last hanging ordered by this court was 1946. Over the years, the Supreme Court has maintained a heavy caseload and in the reports for 2022 to 2023 there were 612 lodgement first instant criminal matters. 320 in Hobart, 140 in Launceston and 152 in Burnie. 652 civil matters were lodged that year.

The Supreme Court of course has not been restricted to sitting in Hobart. It has sat regularly in Launceston since about 1850. The court has occupied its present site in Cameron Street since 1929 although the Launceston Registry was not opened until 1940. Sittings of the Supreme Court on the North West Coast commenced in the nineteenth Century. We certainly acknowledge that justice in Tasmania would be unattainable without the creation of this court in 1924. 200 years later, society has become more complex, which my friends have addressed, and there are new challenges arising.

The constancy of the role of this court is important enduring theme of our democracy.

Over the past 200 years, this court has heard countless cases from deeply stressful events to deeply curious which has impacted lives across generations. The Law Society, its predecessor organisations and the Tasmanian profession is proud to have shared this significant event with you today and journey. The Society looks forward to facing the challenges of the future with the court as we work together.

Congratulations. May it please.

BLOW, CJ: Thank you, Ms Higgins. Next I call

on the President of the Tasmanian Bar, Mr Cox. <MR COX: If it please the Court. Well, on behalf of the Tasmanian Bar, it’s my very great pleasure to wish you happy birthday. Being the last speaker it’s probably best that I’m brief but I wanted to perhaps give a glimpse into the life of one of our earliest practitioners and what a day in court might look like 200 years ago and how it was reported in the media. Hugh Ross, who my friend just mentioned, was a lawyer, reached Hobart town in the regalia in December 1822 and admitted to the Lieutenant Governor’s Court on 1 April 1823.

A year later, 200 years ago to the day, he was admitted with three other practitioners to this honourable Court. Now, Ross became Acting Solicitor General and Acting Crown Solicitor by the early 1930s. He was paid five hundred quid a year but by 1840 he’d found himself on rough financial times. His family was increasing, his salary had fallen by a hundred pounds and was woefully in arrears and his residence in Hobart, that sold for a hundred pounds under its value.

Being in such a pickle and having the privilege of suing for and recovering Crown debts, Ross thought he might borrow some money from the Crown.

He took leave and absented himself from the colony upon which warrants issued immediately for his arrest. He made Singapore, Latvia which is now Jakarta, more presently known as Jakarta and by May 1941 landed in Western Australia where he was arrested and extradited back to Hobart in custody. It was to much regret to the colonists here who sympathised with Ross’s difficulties and those of his wife and family. He was committed for trial on 9 March 1842 charged with embezzling two thousand and twenty one pounds belonging to the Crown.

Now, it’s with much help from Deb Bowring, manager of the Tasmanian Law Library, that I can report from the Colonial Times of that week that the trial was started and concluded on the Wednesday before another infamous legal character of the times, Mr Justice Algernon Montague, and here are some relevant extracts: Mr Hugh Ross was placed at the bar and arraigned when he pleaded not guilty. He was defended by Mr MacDowell. Mr Ross took occasional notes and appeared to pay very great attention to the proceedings throughout.

Then followed the evidence and the closings: Mr MacDowell then addressed the jury for the prisoner and solicited their careful attention to the observation he should feel it his duty to make. On the evidence, he entreated them, as far as they were able to look at the case simply as it rested upon the evidence, and to put away all surmises, charitable or otherwise, which they may have heard or imbibed in respecting the prisoner at the bar.

He asked this not as a favour, but he demanded it as a matter of right to the accused, and left persuaded that he had demanded it not in vain.

The Attorney-General in reply: Begged them to rely upon the testimony of the witnesses and not upon statements they had heard from Mr MacDowell. Why, he would ask, had his learned friend sat down without producing any proof that the money had been paid to the second clerk, of whom they had heard much evidence, or indeed in the office at all?

Would a man of business habits like Mr Ross pay money into the hands of an unauthorised clerk without taking a receipt? There was an absurdity in the very idea.

After the closings, it was reported his Honour summed up with minuteness and impartiality, recapitulating the evidence and remarking upon it in the usual manner, expounding the law also in his customary plain way: The jury retired, and after an absence of about half an hour returned to the court and found the prisoner not guilty, which verdict was received with loud signs of approbation.

Hurrah. Mr Ross was then discharged and, bowing, left the court. Now, Ross was mighty lucky, I suggest. But he, once free, sailed for Sydney and on to New Zealand, where he set up as a lawyer and practised in Wellington in the 1840s and 1850s. But interestingly, in 1844, after a legal dispute, he mortally wounded a fellow lawyer in a duel. He retired in 1855 and died at a ripe old age of 73 in 1869. There have been many colourful characters of this court, and I hope that continues. That was just a snapshot. And on behalf of the Tasmanian Bar again, the warmest congratulations on your anniversary. If it please. <BLOW, CJ: Thank you, Mr Cox. The judge who tried that case had financial difficulties, too, and often heard cases involving plaintiffs to whom he owed money. Times have changed.

I’d like to thank all our speakers. I’d like to thank all the judges and court staff who have worked very hard to help us to celebrate this bicentenary today, particularly Karen Dean, Jo White, and Tracey Long from judges’ chambers, and our research officer Elise Histed, Deb Bowring from the library downstairs, our registrar Penny Ikedife, and particularly Estcourt J. I’ll invite you all, once the Court has adjourned, to refreshments in the foyer. And I also invite you to have a look at items that are on display here today. There are a few in the foyer and there are a lot more downstairs in the Andrew Inglis Clark Law Library. Photographs, robes, wigs, and documents, all sorts of interesting things. The Court will now adjourn.

12 | LAW LETTER

From Convicts to Computers:

Two Hundred Years of the Tasmanian Supreme Court Speech made by the Honourable Alan Blow AO, Chief Justice of Tasmania, on 10 May 2024, for the launch of Justice Stephen Estcourt’s book, From Convicts to Computers: Two Hundred Years of the Tasmanian Supreme Court.

As I mentioned earlier, my colleague and friend Justice Stephen Estcourt has written a book on the history of our Court. It is entitled From Convicts to Computers: Two Hundred Years of the Tasmanian Supreme Court. His Honour has kindly invited me to launch that book today, and it is a great honour to do so.

This is a history that we needed to have. It is a very thorough, very readable, and very

interesting account of the first two hundred years of the Supreme Court of Tasmania, its judges, its buildings, its controversies, some of its major cases, and the changing social and political context in which the Court has functioned.

to books, articles, reports and cases can be found in several pages at the back of the book by those who need them. It is a very readable account of the history of the Court – one that can easily be read and enjoyed by both lawyers and non-lawyers.

It is not an academic work. There are deliberately no citations or footnotes competing for space with the text. References

TWO HUNDRED YEARS OF THE TASMANIAN SUPREME COURT

FROM CONVICTS TO COMPUTERS Justice Stephen Estcourt AM

CONVICTS to COMPUTERS

From

This is a history that we needed to have. It is a very thorough, very readable, and very interesting account of the first two hundred years of the Supreme Court of Tasmania...

There are chapters relating to the periods of incumbency of the various Chief Justices – 14 of us so far. For example, there are chapters entitled “The Cox Court”, “The Underwood Court”, “The Crawford Court” and “The Blow Court”.

TWO HUNDRED YEARS OF

THE TASMANIAN SUPREME COURT Justice Stephen Estcourt AM

Some of the tales concerning personalities in the convict era are quite surprising. It could perhaps be the case that there was a tendency for badly behaved English gentlemen to be sent to particularly distant colonies. The second Charter of Justice for Van Diemen’s Land, which dates from 1831, provided for the Court to be constituted by Chief Justice Pedder and a puisne judge named Alexander Macduff Baxter. In chapter 4, Justice Estcourt explains why Baxter was never sworn in. He was a barrister who had never held a brief, and had been appointed as the Attorney-General for New South Wales. He was described Lieutenant Governor Arthur as an “insolvent

28 mm spine

13 | LAW LETTER

TWO HUNDRED YEARS OF THE TASMANIAN SUPREME COURT

FROM CONVICTS TO COMPUTERS

CONVICTS to COMPUTERS

From

CONVICTS to COMPUTERS

From

TWO HUNDRED YEARS OF

THE TASMANIAN SUPREME COURT Justice Stephen Estcourt AM

Justice Stephen Estcourt AM

A comprehensive history of the oldest supreme court in Australia: the Tasmanian Supreme Court, first convened in 1824.

It is an unrivalled account of the judges who served in the Supreme Court and a careful study of many of the most important cases.

The Tasmanian Supreme Court has discharged its work with disinterestedness and integrity and deserves its reputation as one of our most venerable institutions.

TWO HUNDRED YEARS OF

THE TASMANIAN SUPREME COURT Justice Stephen Estcourt AM

Large format hardback | 284 pages | $75.00 RRP

Available from fortysouth.com.au/shop

debtor, notorious sot and wife-beater”. Arthur postponed his swearing-in. Baxter returned to Sydney, and Pedder arranged for the AttorneyGeneral for Van Diemen’s Land, Algernon Sidney Montagu, to be appointed in his place.

Mr Justice Montagu was the only judge of this Court ever to have been sacked. He was amoved by the Legislative Council in 1847. Any Scrabble enthusiasts present should take note of that word. Judges do not get removed by Parliament – they get amoved.

The book contains some interesting information about Montagu. He held the high moral ground on one occasion in 1836 when the then Solicitor-General arrived late to Court and began to eat a sandwich and drink lemonade rather than opening his case. However Montagu was heavily in debt. When one of his creditors sued him in his own court he successfully applied to Chief Justice Pedder to have the summons set aside. He was amoved on the ground that he had used

his office to avoid paying a legally due debt.

However it appears from chapter 6, entitled “The Judge Storm 1847-1848”, that the real reason for Governor Dennison wanting him gone concerned a case about a dog tax. The Legislative Council had passed an Act in 1846 requiring every dog to be registered and requiring owners to pay a fee. When a journalist 2 refused to pay his dog tax and challenged its constitutionality, Chief Justice Pedder and Mr Justice Montagu held that it was “repugnant to the laws of England”.

...It could perhaps be the case that there was a tendency for badly behaved English gentlemen to be sent to particularly distant colonies.

The Honourable Justice Stephen Estcourt AM

Montagu was replaced by Mr Justice Horne. He also got into financial difficulty. In 1860, when he was hearing an equity suit, he asked the plaintiff to lend him £500. A complaint by that litigant was referred to the Executive Council.

At that stage Mr Justice Horne realised that one option was to resign before things went any further, and did so.

These are just a few of the very interesting stories to be found in the book. There are very interesting chapters on the battle for trial by jury, women and the law, the office of Master, the buildings, and notable cases. Chapter 29 looks to the future. It is entitled “The Next One Hundred Years – The First Robot Judge”.

Justice Estcourt has put an enormous amount of work into this excellent book over the last several years. I now declare it well and truly launched.

The Honourable Chief Justice Alan Blow AM

14 | LAW LETTER

Parens Patriae To Will and Preference: The Evolution of the Guardianship Framework in NSW and Tasmania

BY MALCOLM SCHYVENS A paper presented to the AAL/AIJA/ALJ “Enduring Courts in Changing Times” conference in Sydney on 9 September 2023

by Malcolm Schyvens, President, Tasmanian Civil and Administrative Tribunal (TASCAT)1]

Introduction A person’s ability to determine their own future and to make choices about their personal life circumstances strikes at the very heart of what it means to be human. So what happens when a person’s capacity to make decisions for themselves about important issues affecting their everyday life and the management of their assets is impaired? How are questions like these answered? “Where should the person live?”, “What medical treatment and services should they receive?” and “How is their money to be managed?” Who should provide the assistance that a person needs and in what circumstances should that assistance be provided?

These are not new questions but have their origins in the time of the Chancery where the common law started to try to find ways to answer these questions through formal legal structures. In recent times, these questions have received a renewed attention and focus, propelled by the UN Convention on the Rights of Persons with Disabilities. In both NSW and Tasmania, specialist tribunals predominantly exercise the power to answer these questions, using the framework of substitute decisionmaking. Such matters are only dealt with by the courts in small numbers.

The existing substitute decision-making model or ‘best interests’ model has been criticised for being too paternalistic and for taking away the right to self-determination too easily. Significant reforms have been recommended in both NSW and Tasmania, and some are on the pathway to implementation. Such reforms will not be without their challenges.

Historical Overview: Parens Patriae and Capacity In NSW and Tasmania The Court is placed in a position by reason of the prerogative of the Crown to act as

supreme parent of children, and must exercise that jurisdiction in the manner in which a wise, affectionate, and careful parent would act for the welfare of the child.2 Parens patriae translates to the ‘parent of the state’ which the High Court has referred to as the parental and administrative jurisdiction.3 The historical origins of the parens patriae jurisdiction in Tasmanian Courts was discussed in the case of Public Guardian v Guardianship Administration Board [2011] TASSC 31, as expounded upon by Blow CJ. His Honour noted the emergence of the initial legislative provisions pertaining to the guardianship of adults with disabilities within the Tasmanian jurisdiction only began after the 1920’s, despite the Supreme Court being established in 1824. Notably, Blow CJ makes reference to the Charter of Justice, a foundational document instrumental in bestowing jurisdiction over individuals deemed to be ‘natural fools’ and ‘lunatics’.4 The tenets of the original Charter conferred upon the Supreme Court of Van Diemen’s Land the prerogative to:

domain that extended its purview to the Court of Chancery. Subsequent advancement in this area came following the Tasmanian Parliament’s enactment of the Mental Deficient Act. This legislative enactment is notable as Australia’s inaugural statute dedicated to individuals with intellectual disabilities, departing from the use of derogatory language of ‘lunatics’ and ‘insane’, as had previously been used. This legislative progression marked a transformative juncture, signifying a paradigm shift towards the need to employ mindful language when referring to individuals with intellectual disabilities. Chief Justice Blow made the following remarks:

appoint guardians and keepers of infants and their estates according to the order and course observed in that part of our United Kingdom called England and also guardians and keepers of the persons and estates of natural fools and of such as are or shall be deprived of their understanding or ready by the act of God so as to be unable to govern themselves or their estates.

Under s24(3) of that Act, if a “judicial authority” was satisfied that a person was a “defective”, he could, amongst other things, make an order “appointing a suitable person to be his guardian”. Under s28(2), such an order conferred on the guardian “such powers as would have been exercisable if he had been the father of the defective, and the defective had been under the age of fourteen years”. That subsection also empowered the guardian “to warn persons against supplying intoxicants” to the defective. Under s49, the powers and duties of the Mental Deficiency Board included the exercise of general supervision, protection and control over defectives, and the visiting of persons under guardianship, either by Board members or officers or persons authorised in that behalf. That Act contained no provision for the giving of directions or advice to guardians.6

During this time, the Lord Chancellor exercised jurisdictional authority over individuals deemed as ‘idiots and lunatics’.5 The authority conferred on the Lord Chancellor originated from the Crown’s parens patriae function, a jurisdictional

Subsequent to its enactment, the Mental Deficient Act was repealed and succeeded by the Mental Health Act 1963. This revised statute established the Guardianship and Administration Board7 (the Board), a regulatory

15 | LAW LETTER

entity designed to facilitate the legal issues surrounding guardianship. The Board heard applications for guardianship by exercising its parens patriae jurisdiction. In 2021, the Board was amalgamated with other tribunals in Tasmania to form the Tasmanian Civil and Administrative Tribunal (TASCAT).8 Similar to Tasmania’s historical origins, the guardianship jurisdiction observed in New South Wales (NSW) was transposed from the English law of the ‘mentally unfit’.9 The NSW legislative framework employs an inherent protective prerogative, empowering the Court to undertake actions conducive to the welfare of an incapable person in need of safeguarding, given their inability to attend to themselves. This power was conferred on the NSW Supreme Court by imperial legislation under the New South Wales Act 1823 (UK).

This jurisdictional sphere is guided by its overarching protective purpose10, with the foundational tenets of its authority found in s 39 of the New South Wales Trustee and Guardian Act. 11 The Supreme Court of New South Wales was given specific jurisdiction by the Crown to: Appoint…guardians, and keepers of the persons and estates of natural fools and of such as are or shall be deprived of their understanding or reason by the act of God, so as to be unable to govern themselves and their estates…12 This statutory provision explicitly states that the paramount consideration must be the welfare and interests of the individual under protective care. The Lunacy Act 1878 in NSW established the position of the Master in Lunacy which later evolved into the Master in Protective Division in 1972. The enduring influence of the Lunacy Act persisted until its repeal, being replaced by the Mental Health Act 1958, a legislative manoeuvre driven by the parliamentary objective of aligning NSW statutes with contemporary societal attitudes. The reformulation of language used within the Act was particularly salient, as it replaced antiquated language such as ‘lunacy’, ‘idiot’, and ‘hospital for the insane’ with more contemporary terminology like ‘mentally ill’ and ‘mental hospital’. A pivotal transformation was the shift from conceptualising mental hospitals as facilities of confinement and restraint to institutions of therapeutic intervention – a reflection of evolving societal attitudes towards mental health and the concurrent push for deinstitutionalisation.

Crucially, the Mental Health Act 1958 addressed matters pertaining exclusively to individuals with mental illness, and therefore did not address adults or children with cognitive impairments. Subsequent legislative reform was seen in the enactment

of the Disability Services and Guardianship Act 1987, which was a response to perceived insufficiencies within the existing legal framework and a manifestation of society’s new conceptions regarding disability and guardianship. A foundational principle of this Act was substitute decision-making, wherein paramount consideration was given to the ‘welfare and interests’ of persons with disabilities during the decision-making process, which remains a core principle of the current legislation.

This protective function of the State has extended to fall within the purview of Tribunals, first the Guardianship Board of NSW, then the Guardianship Tribunal, and subsequently the New South Wales Civil and Administrative Tribunal (NCAT)13, by way of the Guardianship Act 1987 (NSW) which explicitly provides for the Tribunal’s jurisdiction to adjudicate on guardianship matters in conjunction with the Supreme Court. Lindsay J aptly defines this jurisdiction as the ‘parental and protective’ jurisdiction, signifying its fundamental function of making decision for the betterment of the protected person, which confers a broad assessment of what constitutes a ‘beneficial course of action’. 14

The Rise Of The Tribunal And The Current Framework Since the establishment of the former Guardianship and Administration Board in Tasmania and the Guardianship Board in NSW, there is no doubt that the vast majority of proceedings dealing with the appointment of substitute decision makers for those with a cognitive disability are dealt with in the respective Tribunals as opposed to the Courts.

The workload of the Tribunals has increased exponentially over this time.

An analysis of the workload growth of the respective Tribunals over the last 20 years illustrates a similar pattern in both jurisdictions. In 2002/2003 the former Guardianship Tribunal of NSW received 4200 applications15 at which time the population of NSW was 6,599,441.16 In the same period, the former Guardianship Board of Tasmania received 389 applications17 when the population was 475,998.18 Move forward to the 2021/22 period and the Guardianship Division of NCAT received 14,876 applications19 and the NSW population had grown to 8,238,801.20 The Guardianship stream of TASCAT received 1603 applications21 over that same period and the population had grown to 571,596.22 Interestingly, these figures illustrate that whilst applications had grown over 20 years by 254% in NSW and 312% in Tasmania, the population growth rate in each state was only 25% and 20% respectively. In rough terms, the rate of applications to each Tribunal grew tenfold compared to population growth.

There are most likely a number of contributing factors to this exponential growth in applications relating to substitute decisionmaking. One factor is simply greater community awareness of the need for legal authority to make decisions on behalf of someone when they lack capacity and a move away from “defacto guardianship” that was prevalent when many people with decisionmaking were institutionalised.23 Another factor is likely the ageing demographic of Australian society and the resultant increase of people with dementia.24 Whilst such workload growth has presented innumerable challenges to both the Tribunals in NSW and Tasmania, there are features inherent in both Tribunals which equip each to deal with such challenges.

For example, both jurisdictions maintain a long standing practice of allocating multimember panels to hear guardianship matters, consisting of relevant experts in addition to legal practitioners, such as geriatricians and psychologists. Further, both Tribunals have proactive and appropriately skilled registry staff who prepare matters prior to hearing, such as by triaging applications and engaging with the person at the centre of the application and their families. Both Tribunals also have the ability to appoint a separate representative to ensure the person with alleged disability has their views placed squarely before the Tribunal.25 The jurisdiction exercised today by both NCAT and TASCAT is often described as a “best interests” model of substitute decision-making, that is, those appointed to make decisions for others are required to make the decision which they subjectively believe is in the person’s best interests.26 The conceptual framework of legal capacity has experienced multiple changes, particularly in terms of the language used. In order to designate a guardian or an administrator, the Tribunal must be satisfied that the person in question, often referred to as the ‘protected person’ in New South Wales, and the ‘proposed represented person’ (PRP) in Tasmania, is rendered unable to independently make decisions for themselves.

This includes the inability to make decisions on matters of accommodation, financial management, life style decisions, and medical treatment, amongst an array of other determinations. As articulated by Lindsay J, the word ‘guardianship’ extends beyond mere custodianship and encompasses a more comprehensive meaning that extends beyond financial management.27 In Tasmania, the present legislative framework to ascertain the necessity for a guardian is three-pronged. The Tribunal must be satisfied that the proposed represented person (1) has a present disability, (2) lacks decision-making

16 | LAW LETTER

Image: Adobe Stock

ability due to the disability (this element is often referred to as capacity), and (3) is in need of a guardian or administrator.28 In addition to these three elements, the legislation guides decision makers to ensure they are satisfied that the decision is guided by the principles espoused by ss 6, 20 and 21 of the Guardianship and Administration Act 1995 (Tas). These provisions require the Tribunal to adopt means which are least restrictive of a PRP’s freedom of decision in the given circumstances, promote the best interests of a person with disability, and carry the wishes, direction, preferences, and values of a person with a disability into effect.29 In NSW, whilst some of the terminology used is different, such as the term financial management is used rather than administration, the legislative framework is largely the same. The only significant variations are that the presence of disability is not required in the test to appoint an administrator30 and the principles are more expansive, requiring the Tribunal to take into consideration matters such as the preservation of a person’s family relationships and cultural and linguistic environment when determining applications.31 Once the Tribunal is satisfied that the PRP lacks capacity for decision-making due to their disability, there is a need to fill this void. The vehicles available in Tasmania are a private guardian or the Public Guardian to make lifestyle decisions, and a private administrator or the Public Trustee to manage the person’s estate. The instruments available in NSW are

a private guardian or the NSW Trustee and Guardian, and a private financial manager or the NSW Trustee and Guardian. The respective statutory provisions governing the appointment of guardians in both NSW and Tasmania confers discretion upon the Tribunals to decide whether a full or limited guardian should be appointed, coupled with relevant conditions attached to their appointment as the Tribunal sees fit.32

Impetus and Proposals for Reform The prevailing model of decision-making exercised in both NCAT and TASCAT is a substitute decision-making model, consistent with the foundational principle of parens patriae. This style of decision-making exercised by guardians and administrators is often criticised for its overly paternalistic nature, signifying the changing attitudes towards the concept of capacity and guardianship.

Contemporary perspectives towards the appointment and function of guardians follows the rationale articulated in Article 12 of the United Nations’ Convention on the Rights of Persons with Disabilities (‘the Convention’): Article 12 – Equal recognition before the law 1. […]

2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

3. […]

4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate

and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body.

The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests. (emphasis added).

The Australian Law Reform Commission (ALRC) has stated that reform to state guardianship laws is critical in order to implement the convention.33 Subsequent to this call, both the NSW Law Reform Commission (NSWLRC) and the Tasmanian Law Reform Institute (TLRI) have released final reports recommending wholesale changes to the regimes in each state.

The NSWLRC released their report in May 2018.34 The Commission recommend that the current legislation, including both the Guardianship Act 1987 (NSW) and the Powers of Attorney Act 2003 (NSW), be replaced with a new Assisted Decision-Making Act35. The new Act would introduce formal supported decision-making whereby a person with “decision-making ability” could enter into a personal support agreement,36 or alternatively,

17 | LAW LETTER

before the Tasmanian Parliament. The recommendations of the TLRI were categorised by government into three tranches.

The first tranche of reforms were enacted in 2022 and introduced a legislative framework for the making and implementation of advance care directives. TASCAT has the role of maintaining the register,41 and can also make determinations upon application as to the validity and interpretation of directives42.

The second tranche of reforms are currently before the Tasmanian Parliament.43 In the second reading speech for the relevant reform bill, the Tasmanian Attorney General, the Hon Elise Archer MP outlined the key features and intentions behind the reforms:44 I will now provide an overview of some of the Bill’s key reforms, namely: •

NCAT could appoint a supporter to facilitate supported decision-making.37 Under further proposals, whilst NCAT could still appoint a substitute decision-maker, labelled a “representative”, it could only do so as a last resort if the person lacks “decision-making ability” to the extent that they cannot be supported to make certain decisions. The Act would prescribe that a person has “decisionmaking ability” for a particular decision if they can, when the decision needs to be made: (a) understand the relevant information (b) understand the nature of the decision and the consequences of making or failing to make that decision (c) retain the information to the extent necessary to make the decision (d) use the information or weigh it as part of the decision-making process, and (e) communicate the decision in some way.38 A representative appointed by NCAT would be required when making substitute decisions to: be guided by the person’s expressed will and preferences; if the person cannot express same, then be guided by the person’s likely will and preferences; if these cannot be determined then the person should make decisions that promote the person’s personal and social wellbeing; and the person’s will and preferences would not need be put into effect if to do so would create and “unacceptable risk” to the person.39 At the time of writing, the NSWLRC recommendations had not been advanced in the NSW Parliament. Conversely, certain recommendations for reform made by the Tasmanian Law Reform Institute in a report released in December 201840 have been enacted, and further reforms are currently

•

the Bill clearly establishes that the appointment of a guardian or administrator is to be considered once least restrictive alternatives are no longer considered sufficient. It requires the Tasmanian Civil and Administrative Tribunal (TASCAT) to consider the appointment of the Public Guardian or Public Trustee only in circumstances where another person is not available to undertake that role; the Bill establishes a decision-making framework which requires substitute decisionmakers to respect and promote a person’s decision-making ability, with support to help a person make decisions as far as practicable;

•

a decision-maker is to give effect as far as practicable to the wishes, preferences and rights of the represented person, except in limited circumstances such as avoiding serious harm to the person;

•

the Bill addresses issues raised by stakeholders, such as improving communication with proposed represented persons, particularly at the stage at which an application to the TASCAT is being considered;

•

best-practice concepts are included in the definition of decision-making ability, including identifying circumstances or criteria which in and of themselves must not be used as the basis for determining that decision-making ability is lacking; and

•

the Bill also improves arrangements for appeals to the Supreme Court in relation to decisions taken by the TASCAT. The Bill respects the voice of persons under guardianship or administration.

New objects and principles apply the

principles of the Convention on the Rights of Persons with Disabilities, the principle of supporting persons with impaired decision-making to make their own decisions, and promotes a person’s views, wishes and preferences, and their personal and social wellbeing. ….

The Bill places the person with impaired decision-making ability back in the centre.

It recognises that decision-making ability is something which may fluctuate according to the nature of the particular decision and the context in which it is being made.

Provisions in the Bill encourage those who have authority to make substitute decisions to only do so where the ability of the person, to make the decision with the aid of appropriate supports, is absent.

Importantly, it requires those who make substitute decisions to take into account the wishes and preferences of the person with impaired decision-making ability where they are unable to decide for themselves. This approach is a significant departure from the ‘best interests’ test that is embedded in the current Guardianship Act. The proposed reforms in the main replicate the proposed reforms in NSW in relation to the concept of “decision-making ability”45 and the requirement for substitute decision-makers to make decisions in accordance with the persons will and preference unless to do so would result in harm, or the risk of serious harm to the person or another person.46 The current proposed reforms would not establish a legislative framework for the appointment of formal supporters. If this were to proceed, this would form part of a third tranche of reforms stemming from the TLRI report. Of interest in this regard, in the recent second reading speech for the reform bill, the Attorney-General provided the following commentary on considerations relevant to the introduction of formalised supported decisionmaking in Tasmania: The proposal to establish a formal supported-decision making framework was recommended by the Australian Law Reform Commission (ALRC) in its 2014 report Equality, Capacity and Disability in Commonwealth Laws. It was also recommended by the TLRI Report. The TLRI recommended that the scheme extend to personal matters and consent to health care and treatment.

Since that time, supported decision-making as a concept has been given consideration across a number of areas where decisions may need to be made for or on behalf of persons with impaired decision-making ability – this includes aged care, disability support, Centrelink services, and the NDIS.

19 | LAW LETTER

Most recently, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability has commenced, examining best practice frameworks for supported decision-making.

The work that the Royal Commission is undertaking is comprehensive. Importantly, the Royal Commission acknowledges that there is currently no shared understanding of supported-decision making across Australia and no agreed approach to reform at this time.

A core principle underlining the current amendments to the Guardianship Act is the prioritisation of supported decisionmaking as a framework for decisionmaking. The Bill makes clear that when a guardian or administrator is appointed, the right to legal agency is not extinguished.

The represented person has the right to continue to make decisions where they have the capacity to do so and, where this is not the case, decisions made by substitute decision-makers are to be based on the will and preference of the represented person in all but limited circumstances. This approach is what the Disability Royal Commission refers to as ‘will and preference substitute decisionmaking’. It is a principled approach to substitute decision-making that recognises supported decision-making as a continuum of decision support. It includes people being supported to make their own decisions, as well as decisions being made by decision-makers based on an interpretation of the will and preference of the person to whom the decision relates.

Mr Speaker, there are various ways in which supported-decision making can be operational. Victoria, for example, has opted to enable the formal appointment of a supporter as an alternative to the appointment of a guardian or administrators. Whilst this approach embeds a legal framework for supported decision-making in their Guardianship Act, the option of officially appointing a supporters has had little take up in that jurisdiction. In fact, the Royal Commission reports indicate they may have had the perverse effect of deterring the more informal networks of support that surround individuals in many circumstances.

The option that our Government has selected, at this stage, is to embed a requirement that all practical support should be given to a person to assist them maintain their decision making ability whilst under a guardianship or administration order. That support may come in various forms, from the provision

of communication aids, to support that enables the person to continue to be in control of tasks associated with their dayto-day living.

As discussions mature at a national level, our Government will then give consideration to whether the Act should include a more formal legal framework for the appointment of a supporter. We also intend to consider options to embed supported decision-making into enduring instruments in a way that encourages the power of attorney or guardian to assist the person prior to the need for substitute decision-making. Consideration is also being given to how supported decisionmaking can be embedded in disability law and my Department of Justice is working with the Department of Premier and Cabinet for this purpose.

The proposed reforms are not without controversy. Some quarters have been critical of the reforms, labelling them as inadequate, particularly in relation to not introducing legislated supported decision-making. 47

The Challenges of Enduring Change The manner in which the various Australian jurisdictional frameworks operate in attending to the decision-making needs of people with cognitive disability is perhaps under more scrutiny now than at any time in the last 200 odd years since the concept of parens patriae took root in Australia. There has been significant media attention in recent times on what are perceived by many to be the failings of the current guardianship systems48.

There is no doubt that future reforms, such as those proposed by the TLRI and the NWSLRC, will focus upon the centrality of a person’s will and preferences, and optimising support mechanisms to allow the person in question to make their own decision whenever possible. It is hard to categorise this shift as anything but a welcome progression. However, like many reforms, the devil will be in the detail, and their success will be contingent on adequate resourcing being made available.

This paradigm shift is not without some risk.

The move away from formalised substitute decision-making to supported decision-making requires scrutiny to ensure the framework that is implemented genuinely enables a person to make their own decision, with support, rather than de facto substitute decision-making whilst standing in the shoes of a supporter. Put simply, true supported decision-making is key, not just a change in nomenclature. A particular challenge to achieve this will be adequate resourcing to ensure all those who require support receive it. In the current climate, this

challenge is not solely a financial one, but also a challenge due to their being a lack of skilled workers.

Another possible outcome associated with the formalisation of supported decision-making may be the perverse outcome whereby many people with cognitive disability are drawn into the Tribunals for orders to appoint a substitute decision-maker where such needs have previously been avoided. The vast majority of Australians living with a cognitive disability have never had a need to enter the “guardianship system”. Their family, friends and carers support them informally to attend to the necessities of day to day life, whether that be to lodge a claim with Medicare, make payment for utilities, or open a bank account.

Prudent organisations will understandably wish to be satisfied that such family members, friends or carers are formal supporters once such a concept is legislated. This in turn will shine a spotlight as to whether the person can indeed be supported to make their own decisions. There is the potential that this spotlight, rightly or wrongly, may force many families to seek formal substitute decisionmaking orders to attend to the usual support activities that they have attended to for years without question.

Finally, there are some areas of proposed reform where the focus on supported decisionmaking arguably seems incongruous with fundamental legal principles. A prime example of such is the use of “restrictive practices” by those providing care and support for people with disabilities. A restrictive practice is any practice or intervention that has the effect of restricting the rights of freedom of movement of a person with disability49.

Practices may include the use of medication to control behaviour amounting to chemical restraint, or physical restraint or seclusion. The practices need to be employed when a person if engaging in behaviours of concern which may harm themselves or others, such as the need to lock the doors of a group home to prevent a person with significant cognitive disability from being harmed by passing vehicles. At their core, such practices, without appropriate authorisation, would otherwise amount to assault or false imprisonment. The Tribunals in both NSW and Tasmania are regularly called upon to adjudicate as to whether substitute consent should be provided for these practices to occur50.

There are proposed reforms in the arena of restrictive practices in Tasmania which call for people with disability to be supported to provide their own consent for the use of restrictive practices when they are engaging in behaviours of concern. In a summary report issued by the Department of Communities

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Tasmania in 2022, outlining the findings of a consultant organisation, the recommendation is made “that the Tasmanian Government implements supported decision making frameworks within its restrictive practices authorisation processes and lead a national conversation relating to this approach.”51.

Whilst the obvious starting point is that a person with disability is presumed to have capacity to consent to such practices until the presumption is rebutted, the practical reality is that the majority of people who exhibit behaviours of concern in the context of the use of restrictive practices often have profound intellectual disability. Many are unable to communicate their most basic wishes. It is questionable as to the proportion of people who require the use of restrictive practices who could genuinely be supported to provide their own consent to the use of such practices.

There is also the quandary as to whether any such consent provided is withdrawn by the person’s actions at the time of exhibiting the behaviours of concern.

No matter what reforms are ultimately enacted in both NSW and Tasmania in the years ahead, there is no doubt that the adjudication task of the respective Tribunals will remain as it is now, a complex balancing act, characterised by Lindsay J as the “struggle for perfection in an imperfect world”.52

12. The Third Charter of Justice for New South Wales, Letters Patent (13 October 1823).

https://www.abc.net.au/news/2022-03-14/public-trustee-four-corners-investigation/100883884.

13. The former Guardianship Board commenced operations in August 1989 and was subsequently renamed the Guardianship Tribunal in 1997. The Guardianship Tribunal was abolished on 1 January 2014 upon the formation of the NSW Civil and Administration Tribunal (NCAT).

49. S 9 of the National Disability Insurance Scheme (NDIS) Act 2013 (Cth)

14. C v W (n 10) [29].

51.

15. New South Wales Guardianship Tribunal, Guardianship Tribunal Annual Report 2002-2003 (Report, 2003).

16. Australian Bureau of Statistics, National, State and Territory Tables: Dec 2022, Table 3 (31 December 2022) 17. Tasmanian Guardianship and Administration Board, Annual Report 2002-2003 (Report, 2003).

18. Australian Bureau of Statistics (n 16).

19. New South Wales Civil and Administrative Tribunal, NCAT Annual Report 2021-2022 (Report, 2022).

20. Australian Bureau of Statistics (n 16).

21. Tasmanian Civil and Administrative Tribunal, TASCAT Annual Report 2021-2022 (Report, 2022).

22. Australian Bureau of Statistics (n 16).

23. New South Wales, Parliamentary Debates, Legislative Assembly, 12 November 1987.

24. Deloitte Access Economics, Dementia Across Australia, (Report, 9 September 2011) 16. According to this study, NSW had 91,308 people with dementia in 2011, projected to increase to 303,673 by 2050.

25. TASCAT Act (n 8) s 98(4)(c), 98(5)(b); Civil and Administrative Tribunal Act 2013 (NSW) (‘NCAT Act’) s 45(4), s 45(4A)(b).

26. Guardianship and Administration Act 1995 (Tas) s 6(b) (‘GA Act Tas’); Guardianship Act 1987 (NSW) s 21A(2) (b) (‘Guardianship Act NSW’).

27. Justice Geoff Lindsay, ‘A Struggle for Perfection in an Imperfect World: Dignity of the Individual, Incapacity for Self-Management, Rights, Duties and Conflicts of Interest’ (Conference Paper, Incapacity Conference, 26 October 2018).

28. GA Act Tas (n 26) s 20.

29. Ibid s 20(2), 20(3).

30. Guardianship Act NSW (n 26) s 25G. 31. Ibid s 4.

32. GA Act Tas (n 26) pt IIII div 3; Guardianship Act NSW (n 26) part III div 3.

MALCOLM SCHYVENS

President President, Tasmanian Civil and Administrative Tribunal

33. Australian Law Reform Commission (ALRC), Equality, Capacity and Disability in Commonwealth Laws (Report No 124, 24 November 2014) 27.

34. NSW Law Reform Commission Report (n 9).

35. Ibid xxii.

36. Ibis xxvi.

1.

The assistance of my associates, Mr Muhammad Fawwaz Bin Abdul Aziz and Ms Cassendra Pinto, in the preparation of this paper is acknowledged.

37. Ibid xxi to xxvii.

2.

R v Gyngall (1893) 2 QB 232, 241 (Lord Esher MR).

39. Ibid xxiv.

3.

Hogan v Hinch (2011) 243 CLR 506, [21] (French CJ).

4.

Public Guardian v Guardianship Administration Board [2011] TASSC 31, [19].

40. Tasmanian Law Reform Institute, Review of the Guardianship and Administration Act 1995 (Tas) (Report No 25, 26 March 2018).

5.

Ibid [20].

6.

Ibid [21].

7.

The former Guardianship Board commenced operations in September 1997 and was subsequently abolished in November 2021 upon the formation of the Tasmanian Civil and Administration Tribunal (TASCAT).

8.

Enabling legislation being the Tasmanian Civil and Administrative Tribunal Act 2020 (Tas) (‘TASCAT Act’).

9.

New South Wales Law Reform Commission, Review of the Guardianship Act 1987 (Report No 145, May 2018) 8 (‘NSW Law Reform Commission Report’).

10. C v W (No 2) [2016] NSWSC 945, [26] (‘C v W’).

11. Ibid [27].

38. Ibid xxv.

41. GA Act Tas (n 26) s 35X. 42. Ibid s 35ZK. 43. Guardianship and Administration Amendment Bill 2023 (Tas) (‘GA Bill 2023’).

44. Tasmania, Parliamentary Debates, House of Assembly, 15 August 2023, 2-3.

45. GA Bill 2023 (n 43) s 11.

46. Ibid s 9.

47. Advocacy Tasmania, Submission to Tasmanian Parliament, Guardianship and Administration Amendment Bill 2022 (October 2022).

48. Anne Connolly, Ali Russell and Stephanie Zillman, ‘Trapped, stripped of assets, and silenced. And it’s all perfectly legal’, ABC News (online, 14 March 2022)

50. For example, see HZC [2019] NSWCATGD 8 and CBE (Application for Guardianship) [2021] TASCAT 5 (19 November 2021) Department of Communities Tasmania, Review of state-based authorisation processes for use of restrictive interventions: A consultation for the Government of Tasmania, February 2022

52. Justice Geoff Lindsay, ‘A Struggle for Perfection in an Imperfect World: Dignity of the Individual, Incapacity for Self-Management, Rights, Duties and Conflicts of Interest’ (Conference Paper, Incapacity Conference, 26 October 2018).

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Ceremonial Sitting Honourable Associate Justice Michael Daly A Ceremonial sitting was held in the Supreme Court of Tasmania on 29 April 2024 to mark the occasion of the appointment of the Honourable Associate Justice Michael Daly

HIS HONOUR: I’m honoured to announce that this morning I was appointed by her excellency the Governor as the Associate Judge of the Supreme Court of Tasmania. Let the appointment be read.

being appointed as a magistrate, and your Honour has always taken on leadership roles within the profession, and you have always been at the cutting edge of new developments in the law.

<REGISTRAR: Instrument of appointment. I, the Honourable Barbara Baker, companion of the Order of Australia, Governor in and over the state of Tasmania and its dependencies in the Commonwealth of Australia, in exercise of the powers conferred upon me by s4 of the Supreme Court Act 1959 and acting with the advice of executive counsel, hereby appoint Michael Frances Daly as Associate Judge of the Supreme Court of Tasmania, on following terms and conditions.

Typically, and reflecting the way that you operate, the level of research that you put into consideration of any new proposal is exceptional. You have always – you’ve always have to hand the latest academic research, have often attended conferences or seminars in relation to the topic, and are always very likely to have directly contacted the pre-eminent experts in the particular field to ensure that you have gained a full understanding of the area and can make the best possible assessment of it.

This appointment commences on 29 April 2024. Remuneration and allowances are to be paid in accordance with the Supreme Court Act 1959. Given under my hand at Hobart in Tasmania on 13 February 2024, signed by her excellency the Governor, and counter-signed by her excellency’s command by the Honourable Guy Barnett, Attorney-General and Minister for Justice.

HIS HONOUR: Thank you, registrar. Mr Attorney. <ATTORNEY-GENERAL: Thank you, your Honour. On behalf of the Tasmanian Government and the people of our State, I have the privilege today of welcoming you to your role as the Associate Judge of the Supreme Court of Tasmania. Your Honour is well-known as the Deputy Chief Magistrate, a role you have held for 13 years, having previously been a magistrate for four years, starting with a year as a full-time temporary magistrate.

You began your practice in the law in 1994 in Launceston, then three years later you moved to Hobart with the same firm as managing practitioner. Your practice as a barrister and solicitor was a broad one and it stood you in good stead for your move to the bar in 2001.

You worked as a barrister for six years before

An example of Your Honour’s commitment to developments and improvements in the justice system is Your Honour’s role in developing the Youth Justice Division in the Magistrates Court. The changes to the Youth Justice Division were made with a view to improving timeliness, developing specialist expertise, better co-ordination of youth justice services to the Court, and increasing collaboration between government and non-government agencies.

It is hard to imagine a more successful pilot which has resulted in a highly successful division of the Magistrates Court.

Your Honour has also enthusiastically supported other therapeutic approaches such as a court-mandated diversion to improve the approach to offenders whose criminal behaviour arises from their drug use. Your Honour has even been willing to step outside what might be regarded as the comfort zone of a judicial officer and agree to appear in a television documentary on the CMD program with a view to educating the public about drug treatment orders and the benefits they can provide.

You will be the first Associate Judge of the Supreme Court to exercise both criminal and civil jurisdiction, and in doing so, will

assist in the case management of a broad range of matters. Your experience in the Magistrates Court places you very well to deal with this work, and your commitment to ensuring that every appearance before you is meaningful, progresses the matter and will play a significant part in the effective case management of both civil and criminal matters.

The position of Associate Judge was previously entitled ‘Master’. The change of name to Associate Judge occurred in 2008. The Supreme Court of Tasmania is celebrating its bicentennial this year, having been created by the third charter of justice in 1824. And despite the long and proud history of this Court, which I was pleased – which I am pleased will be celebrated next month, your Honour will be only the second Associate Judge of this Court, and the fifth to hold the position, however described.

The reason so few have held this role is that the office of Master of the Supreme Court was abolished in 1858 and was not revived until the commencement of the Supreme Court Act in 1959. With the reinvigoration of the position in 1959, legislative amendment empowered the Masters sitting in chambers to deal with an expanded civil jurisdiction. So, the stated hope at that time was to relieve pressure on the judges, and to expedite the hearing of chamber applications.

That remains a goal, albeit in circumstances where the workload of the Court has increased considerably, and I have no doubt that your Honour will play a significant role in the achievement of that aim. So, on behalf of the Government, I congratulate you on your appointment as Associate Judge of the Supreme Court of Tasmania, and I wish you a long, distinguished, and satisfying career. If your Honour pleases.

HIS HONOUR: Thank you, Mr Attorney. Ms Higgins. <MS HIGGINS: On behalf of the Law Society

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a hard worker. You were supportive to the younger practitioners, particularly as they were undergoing their apprenticeship and studying through the legal practice course.

In fact, Ms Kerrison can still remember being asked as she handed you her work, whether it was her work or that of her mentor, Mr Daly. You were described as being a great believer and supporter of collegiality in the profession, and as a result, you embraced social opportunities, including circuit dinners in Launceston. I did receive a number of stories, but unfortunately they’re not for sharing with the Court today.

You sought advice from your colleagues and were encouraged to go to the bar, and in 2001 you commenced at Malthouse Chambers. You were initially concerned about the possible lack of work, but your Honour should have had no reason to have been concerned, because I’m told you absolutely thrived. You act as a junior counsel at the Gilovich Royal Commission, and senior counsel was very impressed by you so you ended up taking over, and he still can recall how impressed he was today when I spoke to him.

of Tasmania, I congratulate your Honour on your appointment as Associate Judge of the Supreme Court. In seeking information from members of the Tasmanian profession, members of the Tasmanian judiciary, and in fact this Court and Magistrates, I noted a very consistent theme and description of your Honour. Your Honour has been described as kind, passionate, determined, engaged, interesting, and enthusiastic. Those comments and statements about your Honour were consistent in relation to your legal career, which has now spanned over three decades.

Like my friend, I was reminded that law was your second career path, and many in Launceston can still recall with fondness when you were working as a hairdresser. In fact, Mr Tucker, who’s known for having a bit of a cheeky persona, stated to me only on Friday that you were his hairdresser and perhaps that is the reason why he has very little hair. I am told though that it was those early days that when you were working as a hairdresser that your social paths crossed with several Launceston practitioners. That was the beginning of what have been lifelong friendships as well as a development of your interest in law.

You were described as being a listener, very easy to talk to, as initially they shared their stories with you about practicing law. You showed interest and were enthusiastic about what they were doing. These practitioners, and

now your colleagues, were impressed by your knowledge, and one has described you as being a very impressive young person.

You spoke to the Launceston practitioners about a career change. You were encouraged to study law and encouraged to go on this career path. This, of course, led to you going on to study law yourself, and you were observed by many to be a very hard worker.

And that determination shone through as you were at university. You graduated in 1993, as stated by my friend, and then were admitted to practice on the 9th of September 1994. As stated, you commenced your career at Rae & Partners in Launceston and then Hobart.

You are described as being popular among your peers in Launceston. And in fact, I am told that you were inducted into the profession at a long lunch at Shrimps Restaurant in Launceston. It was a very long day, and apparently the next day when you arrived at the office, you only had one shoe. Your other shoe apparently went missing that night, and I was told it is perhaps your wife who might be able to assist with an explanation as to where that missing shoe is.

You were very much embraced by your colleagues at Rae & Partners, as well as Launceston. And in fact, Mr Ross Hart is here today, and Ms Kerrison, who I’ve spoken to, spoke very fondly of their time of working with you. You were described as being consistent,

You were again supported by your colleagues when the opportunity arose for you to take on the position as magistrate, and a position now you’ve held since 2007, some 17 years.

You are highly regarded by magistrates and practitioners. Magistrate Stanton shared with me that you have extensive IT knowledge and you’ve played a significant role in relation to the Justice Connect program, which of course included travelling to South Australia to look at their systems.

You are going to be missed in relation to your input with that and particularly your enthusiasm, which of course is consistent with the feedback that you always give one hundred per cent. Mr Stanton fondly describes the trip to South Australia, and it wasn’t just because of your knowledge of the IT system, but also of your knowledge of the area and apparently the shops, and in particular a desire to find a specific hat that you were looking for while there.

Outside of the law, you are known for your passion for your family who are here today to support you, as well as your passion for music and your music career which has spanned even longer than your legal career. Your love for music and playing in a band is an interest you’ve retained throughout your legal career.

Practitioners from Archer Bushby who – which was on Charles Street, can still recall very early on hearing band practice from the old C.H. Smith warehouse when they were working, particularly on Sunday afternoons, and then later found out that that was in

24 | LAW LETTER

fact your band. You are an inspiration to the Tasmanian profession, and once again, congratulations on behalf of the Law Society of Tasmania. May it please.

HIS HONOUR: Thank you, Ms Higgins. Mr Read. <MR READ SC: If it please, your Honour.

On behalf of the Tasmanian bar, it is my privilege to congratulate your Honour on your appointment to Associate Justice of the Supreme Court. I rise today in the absence of our President, Mr Cox. You can tell the Court that he’s been detained, but happily not at his Majesty’s pleasure.

Your Honour, I recall when you arrived at Malthouse Chambers in 2001. At the same time in Malthouse Chambers, there were two – by then, still perhaps young gentlemen, known as Sealy and O’Farrell. Both of them went on to become Solicitor-General. We remember well that you’d come down to what we called Malthouse South, from your office in the upper storey, and that you’d be on your way down to the Magistrates Court.

Sealy would ask you for some details about the case, and in typical fashion, he’d say, “Hm, yes, yes, I think you could argue the Magna Carta on that.” So off your Honour would go, down to petty sessions as we called it. And over a red wine in the evening, Sealy would say to you, “How did you get on, Daly?” “Oh, not so well, Magna Carta argument didn’t go so well.”

Now, your Honour is very much your own man these days, and certainly very quickly became your own man in Malthouse Chambers and had

an outstanding career as a barrister before moving to the bench.

I won’t delve any deeper into your pocket, your Honour, except to say a few things. That you have been an excellent judicial officer for many years. The Attorney spoke about the work you’ve done in the Youth Justice Department.

I read the Commission of Inquiry report. Not too many people escaped from that smelling of roses. One Magistrate Daly did, for the work that you have done for youth justice. And that is very important. Your Honour brought a real trauma-informed approach to that aspect of your task.

Your demeanour and temperament is second to none. You are well regarded in respected by all the profession, especially, I would say, that those of our members who appear before you. Solutions rather than obstacles, I suggest, is your mantra. And those who appear before you from the profession, receive a fair and courteous hearing and a just result. No more should and could be expected at the positions you have held.

Outside the confounds of the court room – the confines, I should say, of the court room, although there are some confounds – you are a friendly and well-liked member of the profession, happy to have a laugh and a joke.

And of course, you are famous for your lengthy involvement as the guitarist in the band the 120 Years. I suspect that that is an old name and it might now be about the 240 Years. Your Honour, you will be missed in the Magistrates Court, but you certainly have bigger fish to fry in this most important job that you are going

into. You will have many challenges ahead in organising the criminal list, but I notice that the Director of Public Prosecutions is laying in wait for you already.

Your Honour, I’m old enough to remember three Masters. His Honour Mr BrettinghamMoore, who became a judge of this Court, was well known as ‘Bretty’, very fondly known as ‘Bretty’. He was then followed by Rick Southee as Master, and he was perhaps more irreverently known as ‘Harry the Horse’. Not quite sure where Rick got that name from. And then came your predecessor, Holt AJ, who was known to some at least, as ‘the Weapon’. Your Honour will work for your own nickname, no doubt, but you may never know what it is.

Your Honour, I should finish by formally recognising you are a former member of the Tasmanian Bar, and we welcome your appointment warmly and proudly, and wish you all the best in your new and well deserved commission. If it please. <DALY AsJ: Thank you, Mr Read. The Court acknowledges the original people of the land here on which the Court sits, the muwinina people. And I pay my respects to the Aboriginal people of lutruwita/Tasmania, the palawa people.

The Court today is honoured, as I am, by the presence of her excellency, the Governor, the Honourable Barbara Baker, AC and Emeritus Professor Chalmers, Chief Magistrate Geason, Magistrates Webster, Marron, and Duvnjak, Terry McGuire J of the Federal Circuit and Family Court, former Chief Justices the Honourable Sir Guy Green and the Honourable Bill Cox AC who personify the rich legacy of the Court and the high standards which I must uphold as the Associate Judge.

I’m also honoured by the men and women of the Tasmanian legal profession, too many to name or honour individually. I welcome honoured guests, family, and friends. Mr Read and Mr Cox – sorry, Mr Read and Ms Higgins, I hope you’re both insured by policies of insurance extending to misleading statements.

Mr Attorney, I can extend no such admonition to you, only my thanks. I’m very grateful for the generous and kind remarks which, given the occasion, will have to remain on the record, undisturbed by the truth.

I commence by making special mention of the attendance of my family, my mother Elizabeth, my brother Mark and his partner Kelly, my wife Becky, my sons Christopher and James, my daughter Amy was prevented from being here by illness, my nieces Ashley and Georgina, her partner Elle, and my aunt Margaret and my

25 | LAW LETTER

mother-in-law Pauline. My father passed away in 2020 and his absence is keenly felt today.

spend a bit more time with his files than might otherwise have been the case.

While this is the fourth time I’ve taken the judicial oath, it is my first ceremonial sitting, so I hope you’ll all excuse my nerves. These ceremonies mark continuity and change within the legal profession, and I’m pleased to be able to share such an occasion today with you all.

Some of you have travelled a great distance to be here, and it means a great deal to me. I’m grateful for the many messages of support that I’ve received from my colleagues and the judiciary, legal profession, and more widely, which have provided me with very welcome encouragement.

Michael Brett, now Brett J of this Court, had recently commenced in that firm, having relocated from Queensland. And he at least tried to teach me a lot about the law, but particularly the practice of the criminal law.

And it was an enormous privilege to work with him and with Ross Hart, but particularly, we were all impressed by Michael Brett’s highly ethical and intellectually rigorous approach to the law, and it was also a huge privilege to observe up close his quiet and effective advocacy. Working with him as a magistrate also taught me a great deal.

I am the fifth person in the 200 year history of the Court to fill the role previously called ‘the Master’. Sadly, from my son’s perspective, no longer called the Master. But I feel a sense of improbability in relation to the whole affair.

As a result of a lamentable lack of application at school and a resulting lack of any pretertiary qualification, my working life began, as Ms Higgins said, with me whiling away four carefree and wonderful years in Launceston training and qualifying as a hairdresser, during which time I learned a great deal about life in general, and the skill of effective communication in particular, in addition to mastering the skills of that most useful trade.

Becky and I moved to Hobart in 1997 and as you’ve heard, in 2000 2001 or thereabouts, I was invited to join Malthouse Chambers as a junior barrister. Unlike today, there wasn’t much of a junior bar to speak of at that time, but it was a wonderful six or seven years at Malthouse, and there was a very high level of collegiality as you’ve heard, and I acknowledge the support and assistance I was given there

by David Porter, Stephen Estcourt, Leigh Sealy, Ken Read, Michael O’Farrell. And it was a pretty magical time, really.

During that time, I met the people who deserve credit for fostering my interest in the law and influencing me to return to study, particularly David Porter and John Kable. After completing my degree, it was my further good fortune that David Porter was the director of my legal practice course, a course I really loved and which imparted a great deal of practical learning and a great deal of enthusiasm in me for the practice of law at a critical early stage of my career.

It was an interesting class of people. Also in that year were former Premier and AttorneyGeneral Will Hodgman, former AttorneyGeneral the late Vanessa Goodwin, Elise Archer, Jago J of this Court, O’Rourke J of the District Court of New South Wales, recently appointed Neskovcin J of the Federal Court of Australia, Deputy DPP Linda Mason, among others. David Porter wrote at the end of that that he hoped at least some of what had been taught to us would stand us in good stead, and it appears that it probably did.

As you’ve been told, I went to work in Launceston at Bishop Gunton Rae, which soon after became Rae & Partners. I was apprenticed to Ross Hart, who I see here today.

He had a vastly varied practice and I learned a great deal from him. He was the president of the Law Society at the time, so I probably got to

My career as a judicial officer commenced as a magistrate with my appointment only having expired last night, midnight. I owe a very great deal to the former Chief Magistrate Michael Hill, from whom I learnt much about judicial administration, particularly specialist Courts and the problem-solving methodology integral to their success. I must also mention the dear departed Peter Dixon who was also a great example and mentor to me and other new magistrates, and a wonderful colleague from whom I learnt so much about court craft and judicial decision-making.

The Magistrates Court of Tasmania is a very collegiate court to work in, it’s magistrates highly productive, it’s work is rightly respected.

It was a privilege to serve the people of Tasmania as a magistrate and especially as Deputy Chief Magistrate, particularly with the Chief I worked with most closely over the last seven years or so, Catherine Geason.

It was very pleasing for me, at least, or is very pleasing for me at least, to be able to work again with the judges of this Court who were appointed from the Magistracy, Wood, Pearce, Brett, and Jago JJ. I would like to express my thanks to the Registrar, Ms Ikedife, and your staff, particularly Gordon Taylor and Karen Dean for all the warmth and thorough assistance that I’ve been given in making the transition to this Court.

I’ll say something brief about the new

dimensions to the role that the attorney has adverted to. The evolution of the Associate Judge’s jurisdiction to include crime is a significant development, and introduced as part of the – well, part of ensuring the increased efficiency of the Court. There’s obviously much interest in what this all means in a practical sense.

The change to the criminal code conferring the additional jurisdiction said nothing, of course, about the practice and procedure, which will take some time and some care to develop.

While the development of any new procedures will eventually entail the responsibility for the listing of matters being transferred from the DPP to the Court, it is acknowledged that such a change an associate – associated changes are significant and they’re ones which will have a wide impact.

I can safely say that any change will be the result of a careful and collaborative approach.

A good lesson I learned at the Magistrates Court was that chaos theory can operate in a judicial system, just as it does in nature.

In judicial systems, as in – or in judicial administration as in meteorology, the butterfly effect is real. A small change in the airflow caused by a butterfly flapping its wings can influence the subsequent tornado.

Little changes can have large consequences, and so recognising all of that before any dramatic changes are made, there needs to be an understanding of the impact of any such changes on the resources of the Court, the resources of those working in and around it.

From my perspective, I’m anxious to ensure that any change is sustainable and doesn’t unnecessarily add to the already high levels of stress under which we all work in the judicial system, particularly in the criminal justice system.

I think that I can give hope to those who want to see that any change will be well thought out and executed, and hopefully some comfort to those who fear that reform in court proceedings isn’t always involving improvement. I’m confident that the expanded jurisdiction of the Associate Judge can be developed and exercised in a way that will increase the confidence with which the community has in the administration of justice in Tasmania.

I’m truly honoured to have been appointed as the Associate Judge of this Court. Thank you all for your attendance. I will now adjourn. <THE COURT ADJOURNED

26 | LAW LETTER

Judicial Independence 101

BY THE HONOURABLE JUSTICE STEPHEN ESTCOURT AM

Judicial independence is a fundamental component of the rule of law, that is, the very important rule whereby the law is applied equally to all persons (and entities) by an impartial judiciary.

The Concept

Judicial independence is a fundamental component of the rule of law, that is, the very important rule whereby the law is applied equally to all persons (and entities) by an impartial judiciary.

Judicial independence shields judges from inappropriate influences, be they from the government or other external actors, enabling them to make decisions based solely on the law and the evidence.

Additionally, it protects judges by shielding the courts from executive or legislative influence when deciding on human rights breaches by branches of the state itself.

Council, the Executive is the Premier and Cabinet Ministers and those people employed in the State Service and other officials appointed by the State. The Judiciary, for present purposes, is the seven judges of the Supreme Court.

So, under the doctrine of the separation of powers the judges must be independent of Parliament and the Executive.

Why should this be? Well Parliament makes the laws under which we live and the Executive manage them and enforce them, for example via the police force for criminal laws. But it is the Judiciary which must say what the laws mean, how and when they may be applied and when they have been broken.

The protections afforded through genuine independence are critical to a properly functioning judicial system.

To understand judicial independence you first need to understand what is known as the doctrine of the separation of powers and you need to know what the legislature and the executive and the judiciary are.

The doctrine of the separation of powers holds that the legislature and the executive and the judiciary are three wholly separate and wholly independent arms of government, each confined to its own role.

Let us stay here with the Tasmanian Government and to the Supreme Court of Tasmania.

The legislature is the two houses of parliament – the House of Assembly and the Legislative

Judicial independence also operates amongst the Judges. The Chief Justice is not my boss. He is what is known as the first among equals.

This can only be done by judges who are wholly independent of the law makers and the law enforcers. Like a football umpire. Someone who can decide a case between two opposing sides,

fairly and impartially, without being influenced by anyone in government or elsewhere.

Judges must make a personal decision based on the law. The buck stops with them. So if they could be pressured to favour one side or the other, the result would be unfair and unjust. Corrupt in fact.

So judges must be incorruptible. But how do you achieve that. Well in this country, unlike some, where judges are popularly elected, it is achieved by ensuring security of tenure and conditions.

That is achieved partly by legislation – a statute – and partly by a long standing convention inherited from our British past via the Westminster system.

James II of England who ruled from 1685 – 1688 sacked 10 judges in three years, so when he was overthrown by Parliament and replaced by William III, the Act of Settlement was passed in 1701. That statute held that the Kings and Queens of England could not be Roman Catholic and that judges could only be removed from office by the vote of both houses of Parliament.

In Tasmania security of tenure is guaranteed by the Supreme Court Act 1857 which says that judges can sit until they are 75 years old and that it shall not be lawful for the Governor, either with or without the advice of the Executive Council, to suspend, or for the Governor to amove, any judge of the Supreme Court unless upon the address of both Houses of Parliament.

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A further layer of protection is provided by a convention, derived from the Act of Settlement and backed up in case law, that a judge’s salary and entitlements cannot be reduced during the judge’s period of office.

to the Chief Justice about a judge being rude or being too slow or about sexual harassment or bullying. If the complaint is actually about the Chief Justice it is made to the next most senior judge.

That does not stop Parliament from doing things to reduce the entitlements of future judges as it did when the government of the day abolished judicial pensions 20 odd years ago, leaving Tasmanian judges as the only judges in Australia without pensions in retirement.

Some other States have judicial commissions comprising retired judges and other appointed members who deal with complaints against judges and may report to the Attorney General up to and including recommending that Parliament should consider removing the judge. Contrary to some beliefs, they do not oversee the operation of the court system.

We will no doubt have a judicial commission in the not too distant future and it will be welcomed by the Court. The judges of my court have been considering for some time the various models in other jurisdictions and are agreed on a form of commission which is suitable for us as a small State.

The Way It Works In practice the judges encounter many cases where the government is one of the parties before the Court. Environmental cases are good examples. The Bob Brown Foundation is often opposed in Court by the environment minister or Timber Tasmania, over disputes about mining or logging in the Tarkine. These are hotly contested cases where the judge’s decision is going to be unpopular with one side or the other whatever it is.

One can see how a judge must be totally independent and unable to be threatened by anyone, however subtle the pressure may be.

So that a judge is never tempted to even think – oh I must look after the government or my salary might be cut or not increased.

Judicial independence also operates amongst the judges. The Chief Justice is not my boss. He is what is known as the first among equals. It is his job to organise the business of the Court but he cannot give orders. Everything that happens as to work-sharing between judges and serving the people of Launceston and Burnie and so on, happens as a result purely of co-operation between the judges and the Chief Justice.

The system of appeals also has a part to play in reinforcing judicial independence. No irrational or biased decision of a judge could ever go unchecked, because the unsuccessful party has a right of appeal to a Full Court of three judges in civil cases, involving money or property, or to a Court of Criminal Appeal of three or more judges in criminal cases. And above those Courts of course sits the ultimate appeal court, the High Court in Canberra, which can sit a court of up to seven judges.

Judge’s decisions can be reversed by those appeal courts and in criminal cases a retrial can be ordered or a verdict of not guilty entered.

The Need For A Judicial Commission Now, all of this judicial independence does not mean that judges cannot be complained about.

Systems or protocols exist within the Court and between the Court and the Bar Association and the Law Society where complaints can be made

I should add that only one Tasmanian judge has ever been removed by Parliament. He was Justice Montagu who was only the second judge was appointed to the Court after the first Chief Justice John Pedder was appointed 199 years ago in 1824. Two further attempts at removal were unsuccessfully made in the Tasmanian Parliament in the case of Justice Thomas Horne in 1860 and Justice John McIntyre in 1907.

Montagu spared the legal profession little more than the press. The Colonial Times of 12 July 1836 reported that when the Solicitor-General, Alfred Stephen, arrived late to court and began to eat a sandwich and drink lemonade rather than opening his case, Montagu railed: … in your official capacity, I shall always treat you with the courtesy and the respect due to you. Were you elsewhere, I should treat you, after your conduct, with even less courtesy than a dog or a cur, as your conduct richly deserves.

His ire extended in April 1840 to the then Lieutenant-Governor, Sir John Franklin, who had advised Montagu that the cottage in Launceston ordinarily reserved for judges on circuit would be unavailable because the Franklins required it because an official ball was to be held in the town. Montagu wrote to Franklin complaining that it was an affront to him and the Court that Franklin and his suite should occupy the cottage at the time of a Court circuit.

On 27 October 1847, Thomas Young, a solicitor acting on behalf of his client, Anthony MacMeckan, wrote a letter of demand to Justice Montagu seeking payment of a debt of £283 within seven days. Montagu begged for time to allow him to sell securities he had offered for the debt, but Young, who apparently held a grudge against Montagu, pressed on and issued a summons against him in the

Supreme Court. Montagu offered a cheque in full settlement of the debt, but less the legal costs of the summons, which Montagu claimed was illegal. This offer was also refused.

On 17 November, Montagu obtained a summons from Chief Justice Pedder calling upon MacMeckan to show cause why his summons should not be set aside for illegality.

Pedder heard the application and a few days later he found in Montagu’s favour on the basis that each judge formed an integral part of the Supreme Court and that neither of them could sue or be sued in it Ultimately Lieutenant – Governor Denison obtained advice from his law officers that it was lawful for him to suspend a judge under a statue known as Burke’s Act in circumstances where the judge had used his office to avoid paying a legally due debt. Montagu was removed from office on 31 December 1847 by an order of the Lieutenant-Governor and the Executive Council.

Conclusion As the American Bar Association has recently noted, the complex and ever evolving nature of judicial independence means it is constantly under threat. The twentieth century has seen an increased political significance of the courts with cases of judicial review—where judges determine the legality of laws passed by the legislative branch — on the rise, along with a growing trend of courts being politicized by politicians and the media.

Additionally, rapid technological development changes the way courts work and what people’s expectations are as to the meaning of access to justice and timely delivery of justice.

For these reasons, the independence of the judiciary needs to be kept under constant review.

THE HONOURABLE JUSTICE STEPHEN ESTCOURT AM

Judge Supreme Court of Tasmania

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Positive Duty to Eliminate Workplace Sex Discrimination and Harassment

BY CRAIG GREEN To prevent sexual harassment in the workplace, it’s important to understand the key underlying drivers of sexual harassment. Sexual harassment is a social problem. Stopping it is not just about altering the behaviour of individuals; we need to change the culture and environment of workplaces in which it occurs. To prevent sexual harassment from happening in the first place, we must recognise the systemic and contextual issues that drive these behaviours. Primary prevention is all about addressing the root causes (or drivers) of sexual harassment.1

In December 2022, a positive duty on employers and persons conducting a business or undertaking (PCBU) to eliminate workplace sex discrimination and harassment commenced.

Law firms, other legal practices, sole practitioners, barristers, chambers, and legal professional organisations need to carefully consider their legal obligations arising under these new provisions.

This article discusses a number of issues that arise with respect to the positive duty and provides some information about how to prevent sex discrimination and harassment occurring and some advice on how to make sure that you comply with the positive duty.

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) amended the Sex Discrimination Act 1984 (Cth) (SD Act) by introducing a positive duty on employers and PCBUs to eliminate: • •

•

workplace sexual harassment, sex discrimination and sex-based harassment; conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex; and victimisation.

This important change requires employers to shift their focus to actively preventing workplace sex harassment and discrimination, rather than responding after it occurs.

New regulatory powers have also been provided to the Australian Human Rights Commission (AHRC) to investigate and enforce compliance with the positive duty.

have been sexually harassed in connection with work are now able to take action to address that harassment through a range of different ways.

The focus on prevention of workplace sexual harassment and discrimination shifted responsibility from those who experience discrimination and harassment to those who are best placed to prevent it: employers and PCBUs.

Workers now have the choice to take action under the FW Act, or under existing provisions in the SD Act or the AD Act. Unions also now have the right to pursue a claim on behalf of a member or the FWO can take action as a regulator.

Provisions that relate to compliance with the positive duty, including the ability of the AHRC to conduct inquiries into compliance with the positive duty, issuing compliance notices, the enforcement of compliance notices and entering into enforceable undertakings, commenced on 13 December 2023.

The rationale for including these provisions in the FW Act is one of the key findings in the Report that the “… current regulatory framework fails to incentivise employers to create harassment-free workplaces. Instead, our laws place the burden of addressing harassment almost entirely on the individual.”

The new provisions are also designed to alleviate the burden on individuals having to address sexual harassment in the workplace by enabling other parties to represent the person making the allegations or to otherwise take action in relation to what a person has experienced in relation to their work.

These provisions in the FW Act apply to sexual harassment which occurs on or after 6 March 2023.

The provisions put into practice Recommendation 28 of the Respect@Work Report (Report) which recommended that, “the Fair Work system be reviewed to ensure and clarify that sexual harassment, using the definition in the Sex Discrimination Act, is expressly prohibited”.

The provisions summarised below about the prohibition against sexual harassment in connection with work commenced on 6 March 2023.

These provisions do not replace the existing prohibition on sexual harassment in the SD Act or the Anti-Discrimination Act 1998 (Tas) (AD Act). However, persons who allege that they

Positive Duty to Prevent Sexual Harassment Most employers and PCBUs will already have in place a number of measures that are required to enable them to comply with the positive duty. The amendments provide

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employers and PCBUs with an opportunity to review and, if necessary, update the measures they have in place to address sex discrimination and sexual harassment.

What Is Required Under the Positive Duty?

An employer or the PCBU must take reasonable and proportionate measures to eliminate, as far as possible, specified forms of unlawful sex discrimination, including: sex discrimination; • • •

sexual and sex-based harassment; hostile work environments; and victimisation.

The focus of the positive duty is on prevention and taking action early.

Steps to take to build positive workplace culture include: Be aware of heightened risk factors for sexual harassment. Consider circumstances where power imbalances exist and legal-services industry systemic factors such as low diversity, inequality, gender imbalances in relationships, isolated working environments and instances of poor workplace culture.

Assess and manage risks. Identify risks inside and outside your practice or workplace, drawing on relevant guidance, evidence, and past experiences to develop an understanding of what they are and what actions you can take to reduce or eliminate them. If you are not able to eliminate risks, minimise them so far as is reasonably practicable.

Foster a positive workplace culture. Build a culture of openness, trust and respect that is supported by policies, human resources practices, staff education and training.

This helps to minimise the risk of sexual harassment and supports a culture where any instances are either reported or dealt with in a way that minimises harm to workers. Ensure that a “culture of silence” or acceptance of inappropriate behaviour does not exist.

Show strong leadership. Principals, partners and senior managers should set a strong example of the types of behaviours and cultures which prevent workplace sexual harassment.

Provide information, training and education.

Adopt new and better approaches to workplace education and training that shows workers, managers and supervisors how to prevent and respond to sexual harassment, actions to take if they experience or witness it and how to report an incident.

Measure your effectiveness. Like any other workplace hazard, employers should measure and understand the prevalence, scope and

impacts of sexual harassment and monitor and share the effectiveness of their workplace initiatives to prevent and respond to it.

The positive duty will align with the vicarious liability provisions in the SD Act where an employer may be found liable for the unlawful acts done by their employees or agents if an employer has not taken “reasonable steps” to prevent conduct occurring.

• • • • •

Guidelines An Information Guide A Quick Guide A Resource for Small Business Factsheets

The Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) will be used by the AHRC in assessing compliance with the positive duty.

Most employers have already taken some steps to make it clear that sex discrimination and sexual harassment are unacceptable in the workplace and have adopted a number of practical measures to reinforce this. There are already positive duties under WHS laws to eliminate or minimise, so far as is reasonably practicable, risks to health and safety, which include risks of sexual harassment, victimisation and other risk causing sex discrimination.

A leading objective of the AHRC is to help employers and PCBU’s to improve their own practices.

1.

Implement appropriate policies and procedures on bullying, discrimination and harassment including sexual harassment which meet the extensive legislative and case law requirements. Review existing policies to ensure that they are up to date.

The new positive duty is intended to operate concurrently with existing duties in WHS laws.

2.

Ensure that all employees attend antibullying, discrimination and harassment training, including information about what constitutes sexual harassment and ensure workers understand avenues for reporting cases of this type of conduct.

3.

Outline the types of behaviours, attitudes and language that disrespect or exclude people based on gender, gender identity, sexual orientation or assumptions about dominant gender stereotypes and socially prescribed gender roles.

4.

Provide details about what will occur if policies are breached.

5.

Act promptly and document any investigation process and provide support to all parties involved during any investigation process.

What Should You Do Now:

Enforcement of Positive Duty The AHRC is empowered to monitor and assess compliance with the positive duty. These powers include options to: •

•

•

•

conduct inquiries into compliance with the positive duty and provide recommendations to achieve compliance; give a compliance notice specifying the action to be taken, or refrain from taking, to address their non-compliance; apply to the federal courts for an order to direct compliance with the compliance notice; and enter into enforceable undertakings.

The AHRC may initiate an inquiry into a person’s compliance with the positive duty if it “reasonably suspects” that a person is not complying.

The AHRC has been resourced to enforce compliance with the positive duty including: •

•

•

to educate employers about the positive duty to prevent workplace sexual harassment and assess their compliance; to facilitate a disclosure process for historical incidents of sexual harassment to support victim-survivors and identify improvements to systems and processes; and to ensure the AHRC is the central point of contact for information on workplace rights and responsibilities and provides a coordinated referral service.

The Commission has published comprehensive resources for employers and PCBUs about how they can comply with the positive duty, including:

CRAIG GREEN

Counsel Dobson Mitchell Allport Lawyers craig.green@doma.com.au 1.

www.respectatwork.gov.au/individual/understanding-workplace-sexual-harassment/what-causes-workplace-sexual-harassment

2.

Comcare – Workplace Sexual Harassment: Practical Guidance for Employers: www.comcare.gov.au

3.

See Resources on Positive Duty (humanrights.gov.au)

30 | LAW LETTER

DNA Wrongful Conviction in 2024

BY HELEN ROEBUCK In 2014, the High Court quashed the Fitzgerald conviction which erroneously relied upon the DNA evidence to place the defendant at the crime. The scientific theory and principles remain largely unchanged, making a repeat DNA wrongful conviction on the same evidence possible in 2024.

A deeper expert analysis of the DNA evidence in the High Court judgment can be read here: DNA wrongful conviction.

The murder conviction and resultant life sentence turned on the question as to whether the defendant directly deposited his DNA onto the didgeridoo within the premises, or whether it was transferred innocently by Grant Sumner.

Crucially, the crown relied upon DNA expert witness testimony whilst the defence did not.

The prosecution expert did correctly acknowledge the scientific fact that Daniel Fitzgerald’s DNA could have been transferred into the scene by Mr Sumner, whilst she did also proffer oral opinion that ran contrary to this fact.

Dr Henry opined support for the prosecution hypotheses variously as “most likely”, “more likely, and “much more likely”. “ Expert witnesses, however skilled or eminent, can give no more than evidence.

They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court.” 1 The Appeal Court was apparently influenced by the expert oral probabilities when unanimously rejecting the Fitzgerald appeal; “ in light of Dr Henry’s evidence, the alternative hypothesis of a secondary transfer of the appellant’s DNA to the

didgeridoo by Sumner was “extremely unlikely”’. 2 The Fitzgerald High Court judgement did not point to any evidence, data, or explanation by the expert witness as to the basis or theory that was relied upon in the formulation of the likelihoods. “an expert witness must “explain the basis of theory or experience” upon which the conclusions stated are supposed to rest, for, as Sir Owen Dixon said in an extra-judicial address quoted by Fullagar J, “Courts cannot be expected to act upon opinions the basis of which is unexplained”. 3

It simply is not the case that an expert witness can apply a likelihood that is based merely on personal opinion, even should that person happen to be an experienced, credible and reputable expert.

DNA Likelihoods in Court It is correctly acknowledged within the

forensic sciences, that likelihoods in evidence are not arbitrary, subjective nor speculative.

Likelihoods must be formulated and evidenced using a validated body of knowledge.

“Validation of scientific techniques is a key component in regard to the integrity and admissibility of scientific evidence within the courtrooms.” 4 It simply is not the case that an expert witness can apply a likelihood that is based merely on personal opinion, even should that person happen to be an experienced, credible and reputable expert.

The International Society of Forensic Genetics (ISFG) has provided further guidance to practitioners stating that verbal scale cannot be used in isolation of a numeric likelihood ration.

“The verbal scale is optional but cannot be used by itself. If it is used, then the numeric equivalents must also be available/ provided. In practise, one would provide first one’s likelihood ratio, then the verbal equivalent is applied afterwards”. 5 The European Network of Forensic Science Institutes (ENFSI) Guideline provides support to this rational, going further to remind practitioners as to their obligations before the courts. 6 “These probability assignments shall still be expressed by a number between 0 and 1 rather than by an undefined qualifier (such as frequent, rare, etc.). Such personal

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Image: Adobe Stock

probability assignment is not arbitrary or speculative, but should be based on a body of knowledge that should be available for auditing and disclosure.”

In 2020, the matter was considered in some detail in the Wrongful Conviction Law review published paper titled Dealing with DNA evidence in the courtroom, in which Weathered et al formulated opinions as to the reliability of the evidentiary relationship around DNA transfer and the assignment of likelihoods. “it is suggested that forensic biologists need to more clearly articulate the assumptions, limitations and sources of error associated with activity level DNA evidence - or alternatively, not provide an expert opinion of this form of evidence.”

Weathered et al, went further to say; “ this case [Fitzgerald] nevertheless highlights a question for criminal justice systems more broadly as to whether DNA transfer evidence is properly understood and evaluated, whether there is an appreciation of the limitations and potential error involved in this kind of evidence,

and whether there is an awareness of the underlying assumptions used by scientists to rank the DNA transfer scenarios.”

Over the last 20 or so years in the courts, I have found prosecution oral likelihood opinions to be common, though less frequently tendered when I have been instructed, for obvious reasons.

Such unsupported likelihoods tend to be run at hearing, with them not having been tendered in written expert evidence. Meaning to some extent, defence is denied the opportunity to weigh and substantially challenge such evidence.

Juries can find themselves readily persuaded by the casual and subtle application of “more likely” or “extremely likely”, particularly when delivered by an unchallenged expert who may well appear to the jury as skilled, credible, and impartial.

HELEN ROEBUCK Principal Forensic Scientist DNA expert witness Roebuck Forensics helen@roebuckforensics.com.au

1.

Makita (Australia) Pty Ltd v Sprowles

2.

Fitzgerald v The Queen [2014] HCA 28 (13 August 2014)

3.

51; [1949] VLR 277 at 303, Fullagar J 4.

Dealing with DNA evidence in the courtroom, published in the Wrongful Conviction Law Review in 2020

5.

Absent of a disclosed and auditable body of knowledge in support, and a numeric qualifier, such verbal likelihoods are scientifically invalid.

R v Jenkins; ex parte Morrison [1949] VicLawRp

Gill, P., et al., DNA commission ISFG. Evaluation of biological traces considering activity level propositions. Forensic Sci Int Genet, 2020.

6.

ENSFI Guideline for Evaluative Reporting in Forensic Science. 2015.

32 | LAW LETTER

Plea in Mitigation An Overview

BY THE HONOURABLE JUSTICE TAMARA JAGO MAGISTRATE JACKIE HARTNETT AND MAGISTRATE MARICA DUVNJAK This paper addresses the considerations of advocating following a plea of guilty. The aim of this paper is to explore ethical and professional obligations in presenting a plea in mitigation to the Court. It covers: • Key considerations in advocating in a plea in mitigations.

• The ethical obligations and duty of care as an advocate in criminal proceedings.

Introduction

From a court’s perspective, a plea in mitigation is a crucially important aspect of the sentencing hearing. It is trite, but the role of defence counsel is to get the least punitive measure available. It is the responsibility of solicitors and counsel, not of the Court, to ensure that all necessary submissions and evidence in mitigation of penalty are placed before the Court. (Banfield v Tasmania [2024] TASCCA 1).

A judge or magistrate must make his or her decision strictly and exclusively upon material placed before them in open court. Additionally, the sentence imposed by a judge or magistrate must be one that is proportionate to the seriousness of the offence and the culpability of the offender. It is therefore fundamentally important that submissions/material that addresses these matters is put before the Court. It is the role of counsel to not simply be a mouthpiece for the client.

The points covered in this paper are a guide to address your mind to certain points. You will not need to address all these points in each plea. In some cases, you will not need to address many of these points. But you must assess for yourself whether each point has relevance in your case.

Make your plea, wherever possible, an engaging narrative, constructive, balanced, and something that lets the Court write down a pathway to what you want and, above all, being persuasive in achieving the proper sentence.

After Instructions/or Advice To Plead Guilty are Given A plea of guilty is a solemn confession of the

ingredients of the crime and an admission of all the facts essential to the offence (Marlow v R (1990) TasR 1 @ [35]). A finding of guilt is, likewise, a finding that the elements of the offence have been made out, not the particulars. Make sure you have carefully considered the facts to be relied on by prosecution. Any conduct referred to in the facts which may amount to another offence for which the offender was not charged should not be before the Court. The Court should not have regard to those matters in any event, but it would be better if they are not before the Court in this first place.

often, findings of fact are made which place the offending in a context which may give rise to mitigating or aggravating features for sentencing purposes.

Preparation For Sentencing Hearing The preparation for the sentencing hearing is of upmost importance. Take instructions, rather than being told things by your client, that include the following (where applicable): Personal circumstances • Age, marital status and dependents, residence, employment status and history, and family history, if relevant -

Consider: Are there any disputes on the facts to be asserted? Identify any disputes: Are they material? Is there an explanation for different versions? What evidence is there in support of alternative versions? Does the statement of facts fairly relate to aggravating and mitigating factors?

This is important because if adverse facts sought to be put before the Court by prosecution are challenged by defence, a disputed facts hearing may be required.

A challenge to prosecution facts must be considered and determined by the judge or magistrate after hearing sworn evidence.

Prosecution, based upon that sworn evidence, must establish that matter beyond reasonable doubt before the Court may take the disputed matter into account. Another important factor is to have careful recourse to the findings of fact made by the Court if the sentencing hearing follows a finding of guilt rather than a guilty plea.

There may be findings of fact made which may not be consistent with your instructions. Quite

“.. the circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less in the culpability of an offender his formative years have not been marred in that way”. Bugmy “… The effects of profound childhood deprivation did not diminish the passage of time and remain relevant notwithstanding that the person has a long history of offending…” Banfield

• •

“Lifelong damage that is the result of childhood exposure to violence, abuse, or neglect may elevate the weight to be given to rehabilitation is a sentencing consideration. See Bergman v the Queen [2021] VSCA 148 at [100]” at [8] in Banfield.

Prior criminal history.

Impact of potential penalty on client and others.

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•

Suitability for community service, capacity to pay fines, need for supervision (where appropriate).

Response To Charge •

•

Was it an early plea of guilty? Were there admissions, is there evidence of remorse (do not make the bold assertion unless there is evidence of it)? Was there cooperation? What was Response to offending – an apology or booked into course?

Consider rehabilitation undertaken relevant to the offending, details of programs, independent evidence of engagement, motivation, completion or partial completion. Note – Banfield – Justice Jago – “… The sentencing judge was told nothing about the extent of any rehabilitation program she had undertaken. He was given no information, for example, as to whether she had attended regularly, the extent of her engagement, or the effectiveness of the program for the appellant. Given the appellants long history of drug addiction, and the obvious inference that earlier sentencing orders had failed to deter or rehabilitate the appellant, more cogent material was required if the sentencing judge was to properly give rehabilitation greater prominence in the sentencing exercise.”

an offender in prison if they suffered from mental impairment at the time of sentencing.

4.

You should obtain the necessary expert opinion regarding the extent of the impairment and what flows from it.

2.

3.

Reduce the weight given to deterrence as a purpose of sentencing. This would depend on the nature and severity of the mental impairment and how this impairment affected the mental capacity of the offender at the time of their offending and at the time of sentencing.

Increase the hardship experienced by

Obtain any victim impact statement or presentence reports and take instructions from client.

•

Consider whether you need a Pre-Sentence Report (PSR) – will it assist?

•

How are they going on any current order or any past order? Talk to Community Corrections.

•

Time in custody – contact the Tasmania Prison Service. Have the days and date to backdate to.

•

What have they done in custody?

What factors are at play? What is focus?

•

•

Retribution/punishment/denunciation – serious offending – where culpability of the offender is high as - serious violence, family violence, offending against young victims, sexual violence.

General Deterrence – to deter others from so offending – less relevant where an offender suffers from a mental disorder or severe intellectual disability.

•

Specific Deterrence – to dissuade the individual offender from repeating the offending.

•

Rehabilitation - prevention or reduction in future offending or reforming the offender – Rehabilitation efforts. Note the particular focus on rehabilitation with respect to young offenders (generally until an offender is 21) when dealing with Youths – see objectives in the section 4 of the Youth Justice Act 1997

•

•

Mental Impairment Could: Reduce the offender’s moral culpability (but not their legal responsibility) for the offence. This could affect the weight given to just punishment and denunciation as purposes of sentencing the offender.

1. Influence the type of sentence that could be imposed and the conditions in which the sentence could be served.

•

Aims of Sentencing

Subjective Matters Explanation for offending; disinhibited by alcohol (is this mitigating or make it worse), provocation, personal use (drugs), opportunistic/spur of the moment, voluntarily ceased the conduct, assistance to police, personal crisis, out of character etc. Basis of criminal responsibility/moral culpability - if you are seeking to rely on impaired mental functioning as a relevant sentencing consideration carefully consider R v Verdins [2007] VSCA 102.

Justify a less severe sentence where there was a serious risk that imprisonment could have a significant adverse effect on the offender’s mental health. Sentencing Advisory Council (Victoria).

purposes. A glowing reference from an independent person of good character is worth many from close friends and family (Fama v Tasmania [2015] TASCCA 27).

What Is Your Realistic Destination?

After considering all of the above, what is it you want or are aiming for?

The aim is to get best result open to the Court; Clearly say in simple language what they should get at the end and have pathway to why it is appropriate or supported. If you are aiming for no conviction or home detention or fine prepare with that in mind but be realistic. You need to be realistic as the consequence of indicating an unrealistic outcome reflects poorly in general, and perhaps poorly on your client’s understanding of the seriousness of their conduct.

•

Proportionality – sentence imposed is proportional to the gravity of the offending for which the defendant is been sentenced.

9. Conviction or non-conviction ◊ In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including –

Totality – principle of totality operates to ensure the sentence reflects the overall criminality of the offending behaviour, rather than strictly adhering to the imposition of the penalty for each offence.

Make a habit of browsing through Sentencing in Tasmania (second edition), Warner, and the Criminal Code Act 1924 to get comfortable and familiar with the proper use of sentencing law terminology.

Obtain Collateral Information •

Psychiatric or psychological reports;

•

Medical reports;

•

Counselling or courses reports;

•

References – character and work history.

It should be apparent on the face of the reference that the referee is aware of the crimes and that the reference is for Court

If you are asking the Court to consider that no conviction be recorded, be prepared to address those matters identified in section 9 of the Sentencing Act:

•

◊

the nature and circumstances of the offence; and

◊

the offender’s antecedents and character; and

◊

the impact that a conviction would have on the offender’s economic or social wellbeing or employment prospects.

Familiarise yourself with section 7 of the Sentencing Act, or the specific penalty provided for with respect to the offence/ crime before the Court (if there is one) in case you are asked by the judge or magistrate to make submissions regarding a different penalty than that which you

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have submitted may be appropriate the circumstances.

•

•

You should consider section 80 of the Sentencing Act. Prosecution can draw to the attention of the Court any aggravating circumstances and can comment on the appropriateness of sentencing options and recommend the Court impose one of those options. You should therefore be in a position to address/respond to those in your plea in mitigation.

the prosecution beforehand and highlight portions you rely on to the Court after allowing it to be read.

•

◊

Be familiar with your client’s prior convictions, particularly those that are relevant to sentence. If you do not want undue weight to be given to what appears to be a relevant prior you may want to give the Court some detail about the offending.

Based upon your instructions and the defendant’s prior convictions consider whether a submission should be made to the Court that a Pre-Sentence Report should be obtained. If you consider your client may be facing a custodial sentence, consider asking that a home detention assessment be undertaken. If, having regard to your instructions, the nature of the offending, and the prior matters suggesting a relationship between drug use and offending, and if a custodial sentence is likely, consider submitting that a drug treatment order assessment would be appropriate.

◊

• ◊

Presenting A Plea In Mitigation •

On the day, have your own style and do not copy. Develop a structure that works for you. But if you hear someone using a line in a plea in mitigation that you like copy that mercilessly (if it went down well with the bench).

You may consider a structure that includes the following:

•

•

You should be familiar, however, with the contents of the Pre-Sentence Report. You should ensure that there is nothing in the Pre-Sentence Report that is inconsistent with what is put in mitigation. If there are inconsistencies between your instructions and the contents of the PSR they should be addressed or explained.

Speak clearly and to the bench. It is not engaging watching someone look at a phone or computer.

•

Be mindful of the use of the phrases such as ‘my instructions’, or ‘the defendant’.

•

If you have material to tender during your plea in mitigation provide these to

•

The offence itself Provide an explanation for the offences or say nothing.

Provide a response to the offence.

◊

Consider whether the offence is out of character by reference to prior matters and your client’s background generally.

•

A plea in mitigation is your responsibility and it is not one that should be sought to be given to Community Corrections. Do not rely on a PSR to do your work.

Provide a background of the accused/ defendant – humanise your client – and aim is to set scene to help the Court understand motivations and so on.

Relevant information includes: • Age • Family background • Educational history • Work history • Relationships • Dependants • Health issues (including mental health) • Substance abuse issues • Financial details (if a fine is penalty sought or realistically open)

◊

◊ •

Introduction – (this depends on your audience /experience). Either signal the result that you are aiming for, and in the plea enumerate the reasons why - i.e., “Fall short of actual imprisonment”. Or consider weaving your aim into your plea.

What has happened since the offence Mention rehabilitation efforts and/ or counselling, medical/psychological interventions.

◊

Indicate reparation efforts (where applicable).

◊

Provide a future focus, i.e. point to matters that can help assure Court that there will not be repeat of the conduct.

Additional matters to consider for inclusion as part of the sentencing hearing Sentencing hearings can often include consideration and determinations by magistrates or judges with respect to – •

A prosecution application to breach a suspended sentence previously imposed by the Court.

•

An application to breach a corrections order previously imposed by the Court.

With respect to an application to breach a suspended sentence you need to carefully consider section 27 of the Sentencing Act. If the defendant has breached a condition of order suspending a sentence of imprisonment, the judge or magistrate must activate the suspended sentence unless it is the opinion of the Court that to do so would be unjust.

If there is a breach application before the Court, you should be in a position to advice the Court whether: •

Cause is shown with respect to the breach.

•

The defence position is that it would be unjust to activate the suspended sentence.

If the defence position is that it would be unjust, detailed submissions should be made to the Court having regard to those factors identified by Justice Wood in Tanner v Brown [2011] TASSC 59, and Justice Pearce in Cannell v Hughes [2014] TASSC 41.

Submissions should be included on what defence counsel asserts would be the appropriate way for the matter to be dealt with by the Court if it is found that it would be unjust to activate the suspended sentence. See section 27 (4C) of the Sentencing Act. If there is a community corrections order breach application raised at the sentencing hearing, you should be in a position to address the Court with respect to that application having regard to section 36 of the Sentencing Act, and in particular section 36 (6).

Summary (consider whether you need to, or would it diminish early points) ◊ Briefly summarise the key mitigating factors and why the outcome being advocated for your client are appropriate. ◊

Refer to relevant law and sentencing precedents where necessary to justify the approach being sought.

Do not make a plea in aggravation - Think carefully about what you say.

THE HONORABLE JUSTICE TAMARA JAGO

SUPREME COURT OF TASMANIA

MAGISTRATE JACKIE HARTNETT AND MAGISTRATE MARICA DUVNJAK

MAGISTRATES COURT OF TASMANIA

Forensic & Clinical Psychologist

Forensic Psychological Assessment Services: Adults, Adolescents and Children Criminal Law Assessments • • • • • • • •

Fitness to stand trial Section 16 insanity defence Doli incapax Mental health and cognitive impairment assessments Offending behaviour and recidivism risk assessments Community protection and dangerous criminal assessments Parole risk assessments Sexual violence and paraphilia assessments

Child Safety Assessments • Care and protection reports Person of Concern Assessments • Analysis of violent ideation and intent • Church congregation due diligence assessment of sex offenders • Professional licensing risk assessment for professional practice disciplinary matters • Threat assessments Psychological Injuries • Victims of Crime

Referral enquiries: georgina@georginaodonnell.com.au

Practice Hobart Corporate Centre Level 3, 85 Macquarie Street Hobart, Tasmania

Postal GPO Box 1236 Hobart Tasmania 7001

Tel: 03 6270 2225 Fax: 03 6270 2223

Services provided throughout Tasmania and interstate

ABN: 145 926 256 80

georginaodonnell.com.au

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Cartel Conduct: The $50 Million Risk

BY MADELAINE HOLT While legitimate discussions between competitors are not uncommon, crossing the line into cartel conduct can have significant consequences for companies and individuals alike. Armed with a new penalty regime and an increasing trend towards criminal enforcement, the ACCC is leaving no stone unturned in its pursuit of cartelists.

Gina Cass-Gottlieb, Chair of Australia’s competition regulator, the Australian Competition and Consumer Commission (ACCC), describes cartel conduct as ‘intrinsically harmful to our economy, restricting competition, choice and increasing price…2 The ACCC takes a tough stance on this enduring priority area, pursuing civil and criminal action against cartelists, regardless of the size of the business or relevant market.

With a new penalty regime in place, including $50 million in penalties for companies, and up to $2.5 million and 10 years in jail for individuals, it is more important than ever to advise your clients about the risks of cartel conduct.

This article will outline the elements of cartel conduct and share examples of circumstances in which commercial lawyers should be alive to the possibility of cartel activity.

Elements Part IV of the Competition and Consumer Act 2010 (Cth) (the Act) provides a framework for companies to lawfully engage with each other, including prohibiting collusion between competitors, otherwise known as cartel conduct.

Cartel conduct occurs when parties make a contract, arrangement or understanding containing a cartel provision,3 give effect to a cartel provision4 or attempt to do the same.5

Contract, arrangement or understanding A contract has its normal common law meaning, whereas an arrangement or

understanding can be much more informal, only requiring a “meeting of the minds” and a commitment to act by at least one party.6 This could comprise an informal arrangement with some form of express communication,7 or a tacit understanding which can arise without express communication.8

understanding between competitors must have: •

The purpose, effect or likely effect of fixing, controlling or maintaining prices,10 or The purpose of directly or indirectly:

• ◊

Cartel conduct occurs when parties make a contract, arrangement or understanding containing a cartel provision, give effect to a cartel provision or attempt to do the same.

Cartel Provision To enliven the cartel conduct provisions of the Act, at least two of the parties to the contract arrangement or understanding must be in competition for the production, supply or acquisition of goods or services.

This can include companies that are currently competing with each other, that are likely to, or that would compete but for the contract, arrangement or understanding.9 Further, the contract, arrangement or

◊

◊

preventing, restricting or limiting the amount of goods produced or services supplied or acquired (output restriction),11 or allocating customers or geographical areas to certain parties (market sharing),12 or ensuring that, in the event of a request for bids, certain parties’ bids are more likely to be successful than others (bid rigging).13

Cartel Hotspots Transactions Lawyers advising on transactions should consider all aspects of competition law, including cartel conduct.

In ACCC v Cryosite Ltd,14 Cell Care Australia Pty Ltd and Cryosite were competitors in the collection and storage of cord blood and tissue containing stem cells. In 2017, Cell Care sought to acquire Cryosite. In a practice known as “gun jumping”, between entering into the sale agreement and completion of the sale, the contract provided that Cryosite would direct all new customers to Cell Care.

Cryosite directed 12 customers to Cell Care during this period. The ACCC was alerted to the proposed acquisition and ultimately instituted proceedings against Cryosite for

37 | LAW LETTER

Image: Adobe Stock

cartel conduct. Cryosite admitted the sale agreement had the purpose of restricting output (i.e. Cryosite would not supply services to new customers) and market sharing (i.e all new customers were allocated to Cell Care).

Cryosite had received legal advice regarding the sale but, presumably, the lawyers did not consider cartel conduct.15 Cryosite was ordered to pay over $1 million in penalties and the deal fell through.

Tender processes All clients involved in tender processes, either as the acquirer or the supplier, should be aware of the cartel conduct prohibitions.

A recent example is the ACCC’s successful prosecution of Delta Building Automation.16 The sole director of Delta organised a coffee meeting with a competitor’s general manager.

During that meeting, the director offered to compensate its competitor if it agreed to refrain from submitting a quote in response to a tender. The competitor immediately rejected the offer and the meeting ended after 20 minutes. The Federal Court found Delta attempted to induce a competitor to enter into a cartel and ordered the company to pay a penalty of $1.5 million and the director to pay a penalty of $120,000.

Although the obligation to avoid bid rigging sits with suppliers, it is also important that

acquirers have an understanding of indicators that bid rigging may be occurring in their tender processes.

1.

Provide Clear Guidance

3.

If your clients have any kind of relationship with competitors, including personal relationships, ensure you provide them with clear guidance about what can and can’t be discussed.

If you hold concerns your client may have crossed the line, consider seeking assistance from a lawyer practicing competition law.

There are exceptions to cartel conduct and the ACCC offers leniency and authorisation in certain circumstances.

MADELAINE HOLT

Principal Holt Advisory madelaine@holtadvisory.com.au

2.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

Gina Cass-Gottleib (2024, March 7), ACCC 2024/25 Compliance and Enforcement Priorities, Committee for Economic Development.

Section 45AF: offence provision; section 45AJ: civil penalty provision Section 45AG: offence provision; section 45AK civil penalty provision.

Section 79 of the Act. ACCC v Australian Egg Corporation Ltd [2017] FCAFC 152 [95].

ACCC v Leahy Petroleum Pty Ltd [2007] FCA 794 [26].

ACCC v Australian Egg Corporation Ltd [2017] FCAFC 152 [95].

Subsection 45AD(4).

Subsection 45AD(2).

Subsection 45AD(3)(a).

Subsection 45AD(3)(b).

Subsection 45AD(3)(c).

[2019] FCA 116.

Ibid [9].

Australian Competition and Consumer Commission v Delta Building Automation Pty Ltd [2023] FCA 880.

38 | LAW LETTER

“No Child Was Harmed”: The emergence of child sexual abuse offending using AI technologies

BY DR GEORGINA O’DONNELL Child sexual abuse offending using Artificial Intelligence (AI) technologies is emerging in criminal law cases in Tasmania. This article provides an overview of the nature of the problem, an insight into the thought processes of offenders using AI, and considerations for sentencing and risk management outcomes.

The Emergence of AI Adult sexual attraction to children has been documented since early civilisation. The evolution of online technologies over the past 30-40 years has provided avenues for non-contact child sexual offending and communications between like-minded individuals that have not previously existed.

The most recent development, which is now becoming evident in Tasmanian criminal law cases is the use of Artificial Intelligence (AI) technologies by individuals with a sexual attraction to children.

How is AI being Used?

Cases are emerging in Tasmania where individuals who are sexually attracted to children are experimenting with AI to generate images and videos of their sexual fantasies.

There are a range of applications that are easily accessible on electronic devices (e.g., smart phones, computers, tablets) that can currently be used for this purpose.

Additionally, there are numerous secure messaging applications that currently facilitate communication between like-minded people, which may include conversations and the exchange of AI generated images and videos.

The images and videos that can be created are currently only limited by human imagination and data available to the AI. The field of AI technology is rapidly developing, and it will take some time for law enforcement authorities to combat the impact of AI. There are currently international efforts to address this problem, including policing the responsibilities of the AI developers in ensuring their applications do not allow users to engage in illegal activities.

However, these measures are at an early stage.

There are currently very few treatment providers in Tasmania, and those that offer these services are often at full capacity and unable to accept new clients.

Thought Processes I have been interviewing child sexual offenders in Tasmania for almost 30 years. In the past 6 months, the use of AI has started to emerge in cases that I am assessing for risk assessment and sentencing considerations. The individuals that are using AI to generate images and videos of their sexual fantasies involving children have expressed the justification for their decision to use AI as “not wanting to harm a real child”. This is an evolution in the thought process that previously justified non-contact offending (i.e., the viewing of child sexual abuse images and videos), with the offender believing that they have not harmed a child because they did not touch the child. There has been growing awareness that by viewing child sexual abuse materials online, this contributes to a child exploitation industry in which children are being harmed. AI has provided a platform by which an offender can distance themselves from the actual harm of a child, and also to create a more accurate depiction of their desired fantasy.

39 | LAW LETTER

to support the use of AI in therapy, clinicians could not currently use that approach in Australia. From an anecdotal perspective, the individuals that I have interviewed are very diverse in their presentations and how they manage their sexual attraction to children. For some, the use of AI could assist them to safely manage their Paraphilic Disorder. However, for others AI would be a likely gateway to heighten fantasies towards children and increase their desire to experience the fantasy in real life (i.e., contact offending against a child).

Risk Assessment Using AI Content

Image: Adobe Stock

Young offenders and adults with competent level IT knowledge (with a sexual attraction to children) are the most likely users of AI to generate child sexual abuse images.....

Is AI a Gateway to Harming a “Real” Child?

I have been asked if AI is a “safe” way for individuals to manage their sexual attraction to children, and if AI could have a place in therapy for the treatment of Paraphilic Disorders. My response is that the possession, production and distribution of AI-generated child sexual images and videos are illegal in Australia.

Hence, even if there was an evidence base

Prior to the use of AI, an individual’s sexual interest in children could be examined by analysing online behaviours including the content and nature of the search terms selected, usernames created, and reviewing the conversations between “like-minded” internet users. The use of AI provides a graphic reflection of the nature of an individual’s sexual interests, including the age and physical characteristics of their preferred target child, and preferred sexual scenarios. Rather than being limited to accessing images and videos that are available, AI provides the mechanism for fantasy to come to life in a realistic graphic form, which can be achieved quite quickly for technologically advanced users. Collections of AI files generated by a user can provide a clearer assessment of an individual’s sexual interests and provide cogent examples for law enforcement classifiers of child sexual abuse material (i.e., linking volitional actions of creating AI images and videos to the criteria for criminal acts).

Co-Morbidity and the use of AI Young offenders and adults with competent level IT knowledge (with a sexual attraction to children) are the most likely users of AI to generate child sexual abuse images and videos at the present time. There is also a cohort of neurodiverse individuals (e.g., young males with Autism Spectrum Disorder) who seek sexual gratification through the use of anime and AI-generated images and videos.

This cohort can develop problematic fixated interests that result in prolific online offending behaviour. Due to co-morbidity, some offenders require specialist therapeutic interventions to assist them to manage their sexual thoughts, feelings and behaviours. Examination of these issues may be relevant in sentencing outcomes, including consideration of Verdins issues.

Treatment Options Treatment options are available for individuals with sexual attraction to children, to assist with reducing the risk of harm to children. There are currently very few treatment providers in Tasmania, and those that offer these services

are often at full capacity and unable to accept new clients.

Another option available for Tasmanians is a confidential online treatment program based in Germany: https://troubled-desire.com/en/ There is a treatment manual for clinicians that accompanies this program: Beier, K. (2021).

Pedophilia, hebephilia and sexual offending against children: The Berlin Dissexuality Therapy (BEDIT). Switzerland: Springer.

Another useful and recently published resource is: Piche, L., & Schweighofer, A. (2023). Working with offenders who view online child sexual exploitation images. New York: Routledge.

In terms of other treatment options for young child sexual offenders in Tasmania, SASS and Mission Australia work in conjunction to deliver the PAST Program for individuals aged 17 and younger who are displaying harmful sexual behaviours. Enquiries can be directed to: pastprogram@sass.org.au

DR GEORGINA O’DONNELL

Forensic & Clinical Psychologist Dr 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 matters state-wide and interstate.

40 | LAW LETTER

An Introduction To Expert Evidence

Professional Witnesses – Avoiding the Smoke and Mirrors

BY CHRISTOPHER SHANAHAN SC 1

Expert witnesses have an important role to play in litigation when scientific, technical, medical, accounting or other specialised knowledge may be required to assist the court in determining the matters in issue.

Expert witnesses have an important role to play in litigation when scientific, technical, medical, accounting or other specialised knowledge may be required to assist the court in determining the matters in issue.

Essentially, expert evidence is opinion evidence provided by a suitably qualified specialist.

Having identified the reason why such an opinion is required that should, in turn, point to the qualifications, experience or skills that are necessary to proffer such an opinion in an admissible form. It is important to remember that not everyone who claims to be an expert, is indeed an expert.

Preparing and adducing such evidence can be a very expensive exercise thus consideration has to be given at the outset of any litigation, by way of a cost/benefit analysis, as to the utility and need for such evidence. If expert evidence is to be adduced it must be effective, persuasive and useful – otherwise it can be an expensive missed opportunity!

To the extent that there is any doubt as to whether a single expert or multiple experts may be required to proffer the required evidence, that matter has to be considered, interrogated and explored in the process when seeking to arrive at a suitable case concept, and then tested in the process of commissioning each expert. Building a mosaic of expert evidence with multiple expert witnesses is a difficult forensic task and, if necessary, has to be undertaken carefully and

in a structured and measured fashion.

The value of such evidence depends upon “the authority, experience and qualifications of the expert and above all upon the extent to which his … [or her] … evidence carries conviction”.2 Thus whilst there are fundamental technical requirements, i.e. that the chosen witness have the relevant qualifications, expertise or skills to give the required opinion, there are also practical considerations as to the quality of evidence that the witness can give. Here “quality” is used to refer to how that expert will perform as a witness. For example, can the witness explain technical concepts simply, is he or she able to communicate the reasoning used and fluently identify the facts upon which his or her opinion is based, can the witness deal with cross-examination, and do they come across as credible experts in his or her field?

Proofing expert witnesses is essential so that the practical value of their opinion can be thoroughly explored.

A successful expert witness is one whose opinion is accepted by the decision-maker and influences and impacts upon the outcome of the litigation. He or she has to be more than merely qualified as an expert they have to present, communicate and engage as an expert. The most qualified, intelligent and well-organised witness will fail in this regard if the evidence they give is ambiguous, poorly reported, buried in professional jargon, inflexible or lacking in confidence or fluency.

If an expert has not previously appeared before the relevant judge, the expert’s first report introduces the witness to the court. Even if the expert has previously been heard by the judge it is important that the expert’s written work continue to reinforce the proposition that he or she is an expert and able to communicate clearly and usefully in writing.

Some obvious examples that will encourage the court to doubt a witness’ capacity as an expert when receiving his or her report include amongst many others, where the expert is not qualified to give the opinion by clearly trespassing outside their declared expertise, evident internal inconsistencies, a report that obfuscates the basis for conclusions, the use of unnecessary professional jargon, dense and impenetrable formatting, a lack of headings or paragraph and page numbers and compendious attachments. The expert needs to empathise with the needs of a busy judge, those needs differ depending of the nature of litigation, opinion evidence tends to be more common in complicated litigation. The witness needs to present as an expert which requires lucid reporting. Forcing a judge to trawl through reports seeking to identify relevant opinions, and the basis for them, is unlikely to be persuasive and depending on the judge to work it out makes the client a “hostage to fortune”.

The expert needs to be independent to make his or her opinion useful to a court, a partisan expert is of little, or no, assistance.

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An obvious example of an expert whose independence may become an issue is an expert who gives evidence repeatedly for a particular client or group of clients with a singular interest.3 Indeed there is a widespread view that one can readily obtain any expert evidence that is needed to establish the client’s position. In that regard Judge Posner in Stoleson v United States of America said “… there is not much difficulty in finding a medical expert witness to testify to virtually any theory of medical causation short of the fantastic”,4 and added to that some years later with, “The professional expert witness who testifies with scant regard for the truth is an old problem in tort as in other areas of litigation.”5 Similarly Arthur C Clarke quipped: For every expert, there is an equal and opposite expert.

These perceptions of expert evidence tend to negate its utility and some effort should be made to highlight and emphasise the independence of one’s chosen expert. That may require some care in choosing the appropriate professional to give evidence on behalf of your client. The more engaged and targeted expert evidence the more likely a court will find it useful.

The capacity of an expert witness to perform is a critical consideration but how does one make a judgment in this regard prior to engaging an expert? There may be little information regarding the capacity of an expert to perform as a witness either because such information is unavailable or the expert has yet to appear as an expert witness, or has done so only sporadically.

There are a number of sources which may provide information as to a prospective expert witness’ capacity in this regard, previous evaluation of the his or her evidence in earlier cases which appear in court judgments, a track record of appearing for clients where the client’s case has succeeded, recommendations by colleagues, one’s own previous experience using the witness or a demonstrable history outside courts of a capacity to communicate clearly both orally and in writing.

If one is able to identify a good expert witness then that can be “gold” in the right case, and building a portfolio of such witnesses can assist solicitors and counsel when preparing matters for trial.

The quality and parameters of available expert evidence can have a primary impact on a successful case theory and is, therefore, of fundamental importance. In other words that evidence needs to be obtained early in the litigation process, and for a plaintiff as part

of the preparation of a case for trial. Belated attempts to gather such evidence usually appear to the court as an after-thought, and coming later in the process may present technical issues around the need to amend pleadings or more existential questions as to the merits of the litigation.

It is important to remember that whatever expert opinion might be adduced it is for the court not the expert to determine the outcome of the case: Expert witnesses, however skilled or eminent, can give no more than evidence.

They cannot usurp the functions of the jury or Judge … any more than a technical assessor can substitute his advice for the judgment of the Court ... Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence.6

taking an oral history from, and examining, the patient. Typically, the doctor will take a contemporaneous note of the history and the outcome of his or her examination, which may include observations, diagnostic testing and vital signs. Such a medical opinion will rest on a combination of the history given by the patient and the examination made by the doctor. To the extent that the medical opinion rests on the patient’s history (as related by the patient to the doctor) the doctor can give no evidence as to the truth of what the patient has told him. Those facts have to be separately established by additional admissible evidence (i.e. other than evidence from the doctor).

The High Court held, in Ramsay v Watson,8 that “When a physician’s diagnosis or opinion concerning his patient’s health or illness is receivable, he is ordinarily allowed to state the ‘history’ he got from the patient”,9 but “If the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician’s opinion may have little or no value, for part of the basis for it has gone”.10 It is, therefore, very important that expert witnesses are asked to As talented as some experts are, or as many opine on the basis of facts that can (and will) experts believe themselves to be, they should recognise and respect the role of the decision- be established by admissible evidence. That is a matter that must be considered before maker in a court and avoid patronising or any letter of instruction to an expert is settled. lecturing a court, and answer any question Indeed the process of identifying those facts put carefully. This may require some careful proofing of a professional witness and assisting and why the expert’s opinion is required allows such a witness to recognise the nature of their counsel or an instructor to interrogate and review the client’s case theory. role.

There are established court guidelines for experts and prospective witnesses should be encouraged to read and appreciate both the guidelines themselves and their rationale.7 Relevant guidelines should be included when instructing prospective expert witness.

Ascertaining whether such a prospective witness has actually read and understood those guidelines is of some importance, it will be readily apparent from any draft report.

Where there are obvious difficulties in the form or content of a draft report the expert made need to review the guidelines.

2.2 The Instruction What element (or elements) of the client’s case requires the expert opinion? It is the nature of that element (or elements) which explains what the client needs to obtain from the expert.

2. THE NATURE OF EXPERT EVIDENCE

As a fundamental principle, when a witness is called in order to provide expert opinion evidence all of the facts and instructions upon which that witness bases the expert opinion are admissible and subject to production11

2.1 The Factual Foundation It is always important to remember that an expert’s opinion is only as useful as the admissible evidence (facts) upon which it is based. There is no utility in an expert opinion that is not based on facts that have not been, or cannot be, proven. In that regard it is critical to ensure that when facts are required to be separately proved to provide part of the foundation of the expert opinion, that those called to give evidence to establish those facts can give such evidence in an admissible form.

The classical example is medical evidence of a patient’s condition or diagnosis where a doctor forms a medical opinion (in their field) after

The letter of instruction to an expert is a very important communication it is discoverable and both the court and the other parties are entitled to see it. In criminal matters the prosecution will disclose such letters in respect of expert evidence that the crown seeks to lead. As Justice Warren stated:

At a hearing a letter of instruction may, ultimately, be used as the basis for crossexamination of your client’s expert. Thus settling such an instruction requires a clear, current and engaged understanding of the purpose of the evidence sought and the rules which apply to the admissibility of expert opinion. Seeking to obtain evidence that is inadmissible, or of limited utility, is obviously pointless and wastes the client’s resources.

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A party seeking to adduce an expert opinion should not be taken by surprise. An expert should be able to identify all the factual matters relied upon in the process of examination in chief, thus avoiding the risk of any surprises in cross examination. If the facts upon which the expert has relied cannot be identified then the expert opinion may well be inadmissible.

One of the important functions of a letter of instruction is to communicate to the expert the facts and/or assumptions that the expert is to take into account in rendering his or her opinion. The expert can then, when cross examined as to what he or she has relied upon, identify those matters with particularity.

Experts should be dissuaded from excursions of their own, or relying on generalised factual propositions, that is unless additional technical work by the expert is necessary to support his or her opinion. If the expert has relied upon matters that were not included in the letter of instruction, then they need to identify those facts and the source of those facts with particularity and explain why they have done so. Indeed it is been observed that (emphases added):12 In complicated litigation, there are sound

Image: Adobe Stock

reasons of policy which support a rule that the premises considered by the expert should be expressly stated rather than left to speculation. It is preferable that these matters be clarified when the witness is examined in chief rather than leave room for argument later as to exactly what matters the expert had in his mind when expressing his conclusions.”

If a letter of instruction is unclear, ambiguous or poorly composed any expert opinion provided in response is likely to share the same qualities. A complicated piece of litigation can turn on the efficacy and admissibility of expert opinion. If a lawyer is called upon to draft such a letter and lacks experience then they should seek assistance from colleagues and, if necessary, seek some further training in this area.

Where an objection is taken to the admissibility of an expert opinion during trial on the basis that the facts upon which the opinion is based have not been established by admissible evidence then that objection needs to be dealt with when the objection is taken and not deferred until the conclusion of the trial because “of its capacity to distort the trial process. There is a real danger … that a failure to rule on the admissibility at the time of tender will cause unfairness to one or other

of the parties”.13 Of course, in administrative tribunals which are not strictly governed by the rules of evidence such objections need to be couched in terms that reflects the nature of the prospective unfairness rather than the strict enforcement of evidential rules.

2.3 The Opinion Any opinion proffered to a court must be admissible. We start with the nature of the expertise required to proffer the opinion and how that expertise is to be described, and the nature of the opinion sought.

In Makita Heydon J observed,14 “… it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness’s expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established

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that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge.”

It is immediately clear that an expert should not form a theory or conjecture about a subject without firm evidence, nor should an expert be encouraged to speculate. Arguments along the line that if there’s smoke there must be fire have no utility in a court. If there are correlations between facts and certain outcomes the mechanism by which such facts may give rise to the outcome have to be explored and the line of reasoning exposed and evaluated. If the Court, or finder of fact, considers that an expert is merely speculating then that may destroy the party’s case that the expert has been called to support. The nature

of the reasoning process that is set out in an expert’s report has to be logical and rational if it is to be accepted.

Thus, second-hand views or expressed opinions beyond the expert’s field will be damaging and inadmissible. Many experts are unfamiliar with the rules of evidence with limited experience as a witness and use a more relaxed style of communication, sometimes this requires an expert to make an adjustment so that any report is largely in an admissible form.

Often “chest beating” experts those determined prior to trial to be evangelical proponents of their opinions are the first to concede in the process of cross examination. Inflexible and obdurate experts who are unable to understand or respond to questions regarding their opinions are unlikely to be persuasive.

Expert evidence needs to be rigorously tested in proofing. However, it must always be remembered that it is the expert’s opinion that is adduced not that of the instructing solicitor or counsel.15 Not only are there risks to the admissibility of the expensive evidence obtained for the client; but inadmissible or poorly drafted or delivered expert evidence may buttress the credit of the other side’s witnesses. That can extend both to the other side’s experts and, on occasion, lay witnesses.

The lawyer instructing an expert should never assume that the expert understands the rules that apply to admissibility or that they have clearly understood guidelines16 published to aid experts in the process of producing reports and giving evidence. Often they do not. Equally, the pressure of giving expert evidence in a court should never be underestimated.

3. ADDUCING EXPERT EVIDENCE

3.1 Preparing An Expert Witness Legal practitioners must not “coach” a witness, whether an expert or lay witness. In the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 rule 24 considers how to preserve the integrity of evidence: 24. Integrity of evidence — influencing evidence 24.1 A solicitor must not — 24.1.1 advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so, or 24.1.2 coach a witness by advising what answers the witness should give to questions which might be asked.

24.2 A solicitor will not have breached Rules 24.1 by — 24.2.1 expressing a general admonition to tell the truth, 24.2.2 questioning and testing in

conference the version of evidence to be given by a prospective witness, or 24.2.3 drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but the solicitor must not encourage the witness to give evidence different from the evidence which the witness believes to be true.

Similar rules apply to barristers, see Legal Profession Uniform Conduct (Barristers) Rules 2015 at rules 69 and 70. In R v Momodou, Judge LJ, in delivering the judgment of the Court of Appeal of England and Wales,17 said: There is a dramatic distinction between witness training or coaching, and witness familiarisation. Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted. This is the logical consequence of the well-known principle that discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness: see R v Richardson [1971] 2 QB 484; R v Arif The Times, 22 June 1993, R v Skinner (1993) 99 Cr App R 212 and R v Shaw [2002] EWCA Crim 3004. The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids, any possibility that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so [61].

In Re Equiticorp Finance Ltd; Ex parte Brock,18 Young J noted that: “It is clear that a witness might confer with his or her solicitor or counsel, or the solicitor or counsel for the party calling the witness, and that during such conference the solicitor or counsel concerned may give the witness advice. That advice may certainly include: (1). advice that the witness should refresh his or her memory from contemporaneous documents; (2). directing the witness’ mind to the point about which questions may be asked; (3). giving the witness a sketch of court procedure; (4). directing the witness’ attention to points in his or her evidence which appear to be contradictory or fantastic; (5). reminding the witness to bring to court all relevant documents; (6). advising the witness as to the manner of answering questions (for example, “In cross-examination listen to the question,

44 | LAW LETTER

just answer the question asked with as concise an answer as possible”); and (7). giving advice as to appropriate dress and grooming.

There may be other permitted areas.”

When proofing an expert witness counsel must ask the expert to explain their written opinion(s). That gives a clear indication of how the witness is likely to give his or her evidence.

As Young J points out that can include identifying points about which questions may be asked and posing those questions to the expert to see how the expert is likely to perform.

The point of the prescription against “coaching” is that the expert witness give “his or her own evidence, so far as practicable uninfluenced by what anyone else has said”.19 It has to be given in an admissible form and that may involve explaining to the expert witness relevant court rules and procedures. Care has to be taken by lawyers to avoid suggesting answers to a witness or otherwise influencing the evidence of the witness. A solicitor or counsel should not advise a witness as to how to answer a question.

Good expert evidence comes from an expert who is well versed in their subject without being arrogant or patronising and has a facility for explaining complicated ideas simply. They should be open-handed and patently honest, even to the extent of admitting fallibility or the possibility of error. In respect of the latter they should do so only when necessary, and there is a primary difference between possible error and the limits of science in a particular field. A relevant and positive track record in his or her discipline, especially in similar matters makes a prospective expert witness ideal. No doubt that is why it has been suggested that in some situations, a brief discussion with a witness of his proposed evidence to clarify some point of ambiguity or uncertainty may be desirable in promoting the integrity and accuracy of the trial process.20 The expert’s mastery of their subject must be both practical and theoretical. An expert is often asked to deal with hypotheticals and being able to do so under cross examination in a way that emphasises the expert’s written reports is a real skill, and one that is truly rare. The ability to deal with hypotheticals also allows the practiced expert to effortlessly, and positively, locate their testimony amongst that of other experts in a credible, fluent and convincing fashion.

3.2 Examination In Chief The process of adducing expert evidence in chief is usually to briefly ask the expert about their qualifications, training and experience before putting his or her written reports to

the expert and tendering those reports into evidence. This is the moment where there may need to be some tidying up of those reports before tender to clarify aspects of the reports that have been exchanged with the other parties. The process of exchanging export reports often includes both the original report of the expert and his or her responsive reports to those of other experts, the process is intended to be synthetic (i.e. proposition and counter proposition moving towards identifiable common ground).

In recent times a variety of devices have been developed to assist in that process, including: (i) a conference of experts with similar qualifications (generally without lawyers) where the experts are encouraged to explain their opinions to each other, identify common ground, record extraneous issues and then report back to the court or tribunal and a copy of that report is made available to the parties; (ii) on occasion the court may appoint a conference facilitator to assist the experts to explore common ground and identify outstanding issues within a conference of experts, and (iii) concurrent expert evidence by groups of similarly qualified experts given at the same time before a court or tribunal allowing it to synthesise the available evidence with all experts present (“hob-tubbing”).

The Federal Court’s Concurrent Expert Evidence Guidelines describe the use of concurrent evidence: The use of concurrent evidence for the giving of expert evidence at hearings as a case management technique will be utilised by the Court in appropriate circumstances (see r 23.15 of the Federal Court Rules 2011 (Cth)). Not all cases will suit the process …”,21 and, Parties should expect that, the Court will give careful consideration to whether concurrent evidence is appropriate in circumstances where there is more than one expert witness having the same expertise who is to give evidence on the same or related topics. Whether experts should give evidence concurrently is a matter for the Court, and will depend on the circumstances of each individual case, including the character of the proceeding, the nature of the expert evidence, and the views of the parties.22 If there are substantial areas of new evidence required from an expert witness then these should be in the form of supplementary reports or statements. Such additional evidence has to be exchanged with the other parties and if left too late may be excluded by a Court or tribunal. Early exchange of additional evidence

is in everyone’s interest: the Court or tribunal and all the parties. Resolving the matters in issue with all the relevant evidence within the time set aside for the hearing is in the interests of justice. There is a tendency to permit the introduction of late expert evidence in the interests of fairness and that can create significant forensic issues when it occurs at the last moment – that is to be avoided.

3.3 Cross Examination Other than seeking to determine whether a particular expert is an appropriately qualified expert to proffer the opinions he or she advances; cross-examination of an expert should involve identifying the expert opinions proffered, a careful elucidation of relevant facts and the bases upon which those expert opinions may have been formed (where necessary) and interrogating those opinions with a view to allowing the Court or tribunal to assess those opinions in the context any expert evidence led by your client and the matters in issue.

There are many different cross examination techniques.23 The cross examiner has to be careful not to entrench the opinion of the other party’s expert witness by merely encouraging the witness to repeat the evidence given in chief. Cross examination is carefully designed by experienced counsel to traverse those portions of the expert’s testimony that the advocate believes can be effectively challenged in aid of his or her client’s case. There are many bases upon which an expert opinion can be challenged including but not limited to (i) the facts or assumptions upon which the opinion is based, (ii) the logic of the reasoning giving rise to the opinion, (iii) whether there are additional matters or assumptions that the expert should have taken into account or made but did not, (iv) the relevance of facts or assumptions that the expert has relied upon, (v) further investigations that should have been made; (vi) whether the opinion of another expert is required to support a conclusion … etc.

Other than seeking to blunt the other side’s case by undermining the opinion offered by that party’s expert or experts, it may be necessary to put key propositions to the other side’s expert in cross examination. That is required where it is necessary to give the other side’s witness an opportunity to address aspects of your client’s case or any criticism that is to be made of that expert’s opinion in closing.

Also you may seek to utilise the opportunity in cross examining an expert witness to obtain concessions that build your client’s case, or affirm facts or assumptions upon which your client’s expert evidence relies. If your questions in cross examination are not achieving one of these goals then it is possible that the line of questioning you have decided upon is ill-considered. Typically questions in cross examination are closed questions, i.e. where the cross examiner because of

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the exchanged expert evidence can readily anticipate the answer. Properly used this technique can have a narrative effect where the line of questioning tells its own story and highlights the points to be made in favour of your client’s case.

3.4 Re-Examination This type of questioning comes at the end on an examination of your witness immediately after cross examination has concluded. At this stage you have led the witness’ evidence in chief, your opponent has cross examined and now you have the opportunity to deal with any matters that have been left hanging by the witness’ cross examination. For example, if the close question technique has been used in cross examination and your witness has not had an opportunity to get out important qualifications or explanations in providing an answer to key questions. Re-examination should focus on primary issues and be a relatively short process.

One has to be careful in cross examination that the manner in which questions are put and answered doesn’t leave an opportunity for your opponent to undo the impact of a cross examination of an expert witness by a short series of pithy questions in re-examination.

That type of re-examination can be very effective if one doesn’t “over egg the pudding” by trying to achieve too much. Remember your witness has had the opportunity to give evidence both written and oral and has been cross examined, what you seek is a rebuttal of the key points of the other side’s case. If possible the order in which those questions are asked should seek to mirror the logical sequence which provides the architecture of your client’s case.

3.5 Re-calling Expert Witnesses Generally a witness gets only one opportunity to give evidence. However, if the other side seeks to adduce evidence after your relevant expert has given evidence it may be necessary to seek leave to recall that expert to address any new evidential issues arising. That is something to keep in mind during the course of the evidence.

be able to assess it, to cross examine upon it and bring it to account in the client’s case. The variety of evidential matrices within which counsel is asked to work provides a stimulating environment in which one develops a working knowledge of many fields of endeavour, albeit usually only for the life of the litigation and until such knowledge gives way to the requirements of a new case. As Sir Arthur Conan Doyle observed through his character, Sherlock Holmes: “I consider that a man’s brain originally is like a little empty attic, and you have to stock it with such furniture as you choose. A fool takes in all the lumber of every sort that he comes across, so that the knowledge which might be useful to him gets crowded out, or at best is jumbled up with a lot of other things, so that he has a difficulty in laying his hands upon it. Now the skillful workman is very careful indeed as to what he takes into his brain-attic.

He will have nothing but the tools which may help him in doing his work, but of these he has a large assortment, and all in the most perfect order. It is a mistake to think that that little room has elastic walls and can distend to any extent. Depend upon it there comes a time when for every addition of knowledge you forget something that you knew before. It is of the highest importance, therefore, not to have useless facts elbowing out the useful ones.”

Arthur Conan Doyle, A Study in Scarlet

CHRISTOPHER P SHANAHAN SC

Barrister cshanahan@mchambers.com.au

1.

Christopher Shanahan S.C. FAAL is a barrister practising at Murray Chambers in Perth, Western Australia

2.

Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 (‘Davie’) per Lord President Cooper at 39-40 – cited with approval by Heydon JA at [59] in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705

3.

Vita Health Laboratories Pty Ltd v Pang Seng Meng [2004] 4 SLR 162 at [81]

4.

Stoleson v United States of America 708 F 2d 1217 at 1222 (7th Cir 1983)

5.

Albers v Church of the Nazarene 698 F 2d 852 at 858 (7th Cir 1983); see J Langbein (1985) 52 Uni of Chi LR 823 at 835

6.

Davie, per Lord President Cooper at 39-40

7.

Federal Court of Australia ’s Expert Evidence Practice Note (GPN-EXPT) 25 October 2016, including the Harmonised Expert Witness Code of Conduct and the Concurrent Expert Evidence Guidelines

8.

Ramsay v Watson (1961) 108 CLR 642

Conclusion Expertise is by its nature siloed. Experts have limits and similar experts tend to share methods and outlooks because they have undergone similar education or training. It is counsel that needs to stitch the evidential tapestry against which the client’s case is to be measured. He or she should not be compartmentalised or artificially limited and his or her outlook must be driven by the legal parameters of the client’s case rather than the approach of others. Counsel needs to develop a working understanding and appreciation of relevant types of expert evidence in order to

9.

Ramsay v Watson, per coram at 648

10. Ramsay v Watson, per coram at 649 11. Cobram Laundry Services Pty Ltd v Murray Goulburn Co-operative Co Ltd [2000] VSC 353 at [58]; see also Automasters Australia Pty Ltd v Bruness Pty Ltd [2004] WASCA 229 per Steytler J, Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705, and Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 12. Trade Practices Commission v Arnotts Ltd (No 5) (1990) 21 FCR 324 per Beaumont J at 330 13. Professional Services (Aust) Pty Ltd v Computer Accounting and Tax Pty Ltd (No 2) (2010) 261 ALR 179 per Martin CJ at 200 ([96]) 14. Makita at [85] 15. See section 3.1 16. Such as the Federal Court of Australia ’s Expert Evidence Practice Note (GPN-EXPT) 25 October 2016, including the Harmonised Expert Witness Code of Conduct and the Concurrent Expert Evidence Guidelines 17. R v Momodou [2005] 2 All ER 571; [2005] 1 WLR 3442; passage cited with approval in the WA Court of Appeal in Majinski v State of Western Australia (2013) 226 A Crim R 552; [2013] WASCA 10 per Martin CJ at [29] 18. Re Equiticorp Finance Ltd; Ex parte Brock (No 2) (1992) 27 NSWLR 391 per Young J at 395 19. See Judge LJ in the passage from R v Momodou above 20. HKSAR v Tse Tat Fung [2010] HKCA 156; [2010] HKEC 815 at [73] 21. Concurrent Expert Evidence Guidelines [2] 22. Concurrent Expert Evidence Guidelines [6]

46 | LAW LETTER

Southern Early Career Lawyers Committee The Southern Early Career Lawyers Committee (SECL) continues to meet monthly in 2024, with new members on board to help organise events for early career lawyers, discuss concerns affecting early career practitioners and brainstorm new CPD ideas.

So far this year, the committee has held a successful Early Career Lawyers Long Lunch on 28 March 2024 before Easter, at Deep South Brewing Co, with over around 60 attendees.

This Long Lunch was another well-attended event, affording early career lawyers the opportunity to connect with each other, de-brief and unwind before the break.

On 10 July 2024, the SECL hosted its Quiz night - this year at Shambles Brewery. This involved six rounds back-to-back of fun quiz questions, including a round dedicated to the local legal profession. Simmons Wolfhagen took out the first prize after a nail-biting tie breaker with a “finish these lyrics” to Super Bass by Nicki Minaj. Coming close in second place was Page Seager and third Butler McIntyre and Butler.

Upcoming, the SECL has its Golden Gavel event to be hosted again at the Grand Poobah,

a favourite venue for this annual Gavel. Please save the date for 6pm onwards on Friday 27 September for another fun night of comedy and good tunes.

This year, the SECL is focussing on giving back to early career lawyers...

back to early career lawyers with our events, supporting our incoming lawyers, and ensuring there is a safe space for these early career lawyers to discuss what is on their mind as they commence their legal practical career journey. The SECL committee meets at 1pm on the first Wednesday of the month at the Society in Murray Street. If you are an early career lawyer - up to 10 years post admission -and would like to attend, please join us at our next meetings.

In February 2024 the SECL met with Tasmanian Legal Practice Course (TLPC) students for a mentoring afternoon which included pizza and drinks. This year, the committee switched it up and broke into groups made up of the TLPC students, SECL members and other early career lawyers who graciously volunteered their time. On 17 July 2024 the SECL met for another afternoon with TLPC to chat with the students about transitioning into private practice. This included discussion on the highs and lows of practice, billing and budgets, and other questions at the front of the minds of the incoming early career lawyers.

MEGHAN SCOLYER AND ZOEY DWYER

Co-Presidents

This year, the SECL is focussing on giving

AUSTRALIAN MOTOR VEHICLE SERVICES – AMVS The Society has partnered with Australian Motor Vehicle Services (AMVS) as a member benefit service provider since 2018.

AMVS is your new vehicle buying advocate and is a licensed motor car trader in Tasmania.

AMVS will negotiate the best possible price on any new car, delivered to your door and it is free. If you are trading in your present car, AMVS will search for the best possible price in a separate and transparent transaction.

AMVS will manage the entire process and save you time and money, so you have time to do the things you love most.

Should you be looking at finance options, AMVS will introduce you to 3 financial service providers we work closely with. We do not touch any commissions, only refer clients.

AMVS can be contacted every day of the year on 1300 667 559 or 0475 421 599.

Visit the AMVS website for further details.

North-West Early Career Lawyers Committee The North-West Early Career Lawyers (NWECL) appointed the following people to our Committee for the 2024-2025 year: • • • • •

Callum Tregurtha (North West Community Legal Centre Inc.) - President Kristie Kean (McVeity Dean Lawyers) Vice-President Mitchell Sheehy (Western Prosecution Service) - Treasurer Aaron Murphy - CPD Coordinator Lizzie Arnold (Tasmania Legal Aid) Secretary

So far in 2024, the NWECL Committee has hosted the following events: •

Family Law Workshop: thank you to both Sophie Warren and Amber Scott for organising an interesting CPD on Section 102NA orders and advocacy including becoming an Independent Children’s Lawyer in the family law practice area.

All attendees were very lucky to have the Honourable Judge Marcus Turnbull, Federal Circuit and Family Court of Australia, and Matthew Verney, Barrister, St Elmo Chambers, deliver this workshop which had more than 15 attendees at the Cradle Coast campus of the University of Tasmania. The NWECL would also like

to thank Tasmania Legal Aid Family Law Practice Manager, Julie Fawkner, for her input regarding how to join the section 102NA panel as well as becoming an Independent Children’s Lawyer/Separate Representative.

•

Legal Practice Trip: In March, the NWECL hosted a visit to the North-West of around 20 Tasmanian Legal Practice Course (TLPC) students with Emma White, Executive Director of the Centre for Legal Studies. The group attended lunch with the legal profession, a Q&A panel and a tour of Devonport firms and organisations before dinner and drinks with the extended profession, with more than 40 in attendance. Thank you to everyone involved – the NWECL hopes to have a similar event next year.

in the area with 10 years or less post admission experience, you are welcome to attend committee meetings which are normally held from 6pm on the third Tuesday of each month at Penguin Beer Co which is followed by dinner and enjoying local trivia. The NWECL is always happy to have visiting attendees for dinner and trivia should your practice bring you temporarily to the North West from time to time.

If you would like to become involved in the NWECL Committee, please contact any of the committee members named above. You can also find NWECL contact information on the Society website by searching NWECL. Additionally, the Committee now has a Facebook group that you may also like to join.

On the upcoming agenda, the NWECL hopes to host several CPD events in the latter part of this year in addition to its annual NWECL fundraising trivia night which is likely to be in September. More details will come via the Law Society newsletter!

The NWECL looks forward to continuing to provide social and CPD events to lawyers on the North West. If you are a legal practitioner

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47 | LAW LETTER

CALLUM TREGURTHA

President

48 | LAW LETTER

Northern Early Career Lawyers Committee At the outset, the Northern Early Career Lawyers (NECL) Committee for the year 2024/2025 extends its gratitude to the outgoing Committee led capably by Timothy Drew. Thank you, Timothy, for your commitment over the last year. The outgoing Committee leaves the current committee in a very strong position to ensure its events in this coming year are accessible and well facilitated.

The Committee is saddened to say goodbye to several early career practitioners this year, some to other parts of the State, and others to new pursuits; however, it is also excited to welcome new members in the North. Whilst the Committee is still settling in, particularly with the departure of some of its more experienced members from the Committee, its social coordinators has hit the ground running.

The NECL Committee year commenced with an informal networking drinks evening, in collaboration with Tasmania Legal Aid, to welcome to the North some Tasmanian Legal Practice Course (TLPC) students and preadmission graduates in work experience. On Friday 19 July, the Committee held its regular mid-year long lunch. This year it was a less formal, more cocktail-style gathering for our early career practitioners who were doubtless due a post-end of financial year fiesta. This year, the NECL Committee parachuted in its mid-year speaker from the South - with gratitude to Katherine Barclay, Special Counsel, HWL Ebsworth Lawyers, for agreeing to regale us with tales of her early legal career experience.

The Committee also continues to plan its traditional “Meet the Profession” drinks event at Staffordshire House, where graduate practitioners are introduced to the local profession at large with opportunity to make early connections. Likewise, the popular annual trivia evening will be run once again, and plans are in motion for the Committee’s end of year long lunch event.

The early career lawyer committees and the events they facilitate are excellent opportunities for graduates and lawyers in their first few years of practice....

CPD-wise, the Committee has reflected on the last couple of years and is looking to ensure that some of its CPD events cater more evenly to its members, particularly in light of the recent developments in conveyancing with the issuance of the Recorder’s directions, and the focus on litigation-aligned CPDs of late. The NECL Committee extends its thanks to those members of the judiciary, the magistracy and the senior members of the profession who have supported not just its CPD events but also its social events over the last year, and to those who have offered and agreed to support the NECL Committee this year.

The early career lawyer committees and the events they facilitate are excellent opportunities for graduates and lawyers in their first few years of practice to not just establish connections, but to maintain rapport with other members of the legal profession.

For those who have been around a while but are still eligible members (up to 10 years post-admission) it is an opportunity to ensure that you are familiar with your up-andcoming colleagues. As always, the Committee extends a standing invitation to those of its membership who wish to join the Committee, and it encourages you to engage with each other.

I would personally like to thank this year’s Committee for the commitment it has already shown, particularly to our vigilant vicepresident, Courtney Bailey, social coordinators, Sophie Barker and Grace Burden, and CPD coordinator, Abby Cone. The NECL Committee looks forward with anticipation to your participation over the rest of this Committee year.

LOUIS BENJAMIN

President

Down’s syndrome birth

Dr Steven Chow, Obstetrician, Ultrasound Specialist

X X

Do you have a plaintiff whose pregnancy has resulted in birth of a Down syndrome child?

Has the diagnosis of Down syndrome been delayed, missed or misdiagnosed during pregnancy?

Send an email to Dr Steven Chow: drchowmed@gmail.com

Dr Steven Chow, PO Box 1057, Greythorn, Victoria 3104

MB BS (Melbourne), Fellow RCOG (London), Fellow RANZCOG, DDU (Obstetrics)

49 | LAW LETTER

AI Revolution

By GREG BARNS SC

Any lawyer who thinks they can avoid the AI revolution is kidding themselves. More than the Internet, emails and online document management, AI is already and will continue to be, the equivalent of the shift from 17th century agricultural societies to the 19th century machine driven economies.

While some lawyers will fear it – and remember when the Internet turned up lawyers were complaining about lost revenuesAI will reward innovative legal professionals and force lawyers to upskill and specialise.

The issue is not, to use or not to use AI, because the answer to that is self evident.

The issue then is the challenges AI throws up for legal practice. A recent comment from Associate Professor Amy Salyzyn from the University of Ottawa is worth reading in this regard. Published on Slaw, an online Canadian legal blog, Salyzyn’s thoughtful contribution1 is well worth a read.

Salyzyn says that, “[a]lthough the full impacts of generative AI on the work of lawyers are yet to be seen, there is clearly an immediate need to discuss the responsible and ethical use of AI by legal professionals”, and that “Canadian lawyers have a general duty of technological competence.” It is the same in Australia. Lawyers are running a business and like all businesses in the services sector of the economy, they must ensure that technology is used to improve efficiency and to reduce prices for clients.

This challenge of technological competence on the part of lawyers in dealing with AI involves legal educators and professional bodies like law societies, argues Salyzyn. She writes that as “generative AI becomes increasingly ubiquitous in all these ways, it becomes harder for lawyers to avoid interacting with it. This reality means that gaining competence in generative AI is also increasingly unavoidable for lawyers. This does not mean that lawyers must become coders or tech whizzes; it does mean that lawyers must develop a basic understanding of how generative AI works and where the ethical hotspots lie.”

Building tech literacy capacity is “a professionwide project involving multiple stakeholders.

It starts with law schools integrating the topic into their curricula. It continues with legal workplaces ensuring that they offer sufficient internal training on AI and/or facilitate access to external education opportunities. Workplace

policies regarding appropriate AI-use will also be increasingly essential. Law societies, too, have a role in providing guidance to lawyers on their professional obligations when using generative AI in the delivery of legal services,” says Salyzyn.

But are we seeing this in Australia yet? Too often we hear stories of the perils of AI. Students using AI for essays and exams.

Lawyers churning our memos and letters using AI and getting the content wrong. This is all teething stuff and it should not, for a moment, stop the sort of industry wide effort to ensure AI is part of the DNA of lawyers and legal practice going forward.

the legal industry is that it is being seen as a positive so far. The recent (July 2024) Thomson Reuters Future of Professionals Report3 found that only 33 percent of lawyers surveyed thought that AI meant the demise of lawyers. Most thought it enhanced lawyers’ standing because they can concentrate on value add work.

Technological advancement in occupations like law, medicine, architecture and the like generally means one thing – a chance to do things better and to go where we haven’t been before in improving the lives of people and our communities.

1.

Such capacity building is already happening.

At UTS in Sydney, the Human Technology Institute (HTI) has teamed up with Lexis Nexis to offer courses and training for all levels of the legal industry.

And there will be plenty of AI offerings for lawyers depending on the size of practice and 2. type of work. Liz Chase from the Leo Cussen Centre for Law2 writes; “Behind the scenes, the legal tech industry is gearing up for an AI arms race, investing heavily in creating tools that will redefine the way lawyers work. We 3. can anticipate an explosion of novel solutions entering the market in the near future, transforming everything from document review to case prediction, due diligence to contract creation.”

But Chase also, and rightly, warns that “this imminent technological revolution presents a stark warning: adapt or risk obsolescence.

Lawyers and law firms that resist incorporating AI into their practices run the risk of falling behind in an increasingly competitive market.

The reluctance to adapt will not just affect their operational efficiency, but may also hamper their ability to meet client expectations.” In other words, market forces will ensure only those who adapt AI smartly will survive. That’s the beauty of markets. Because the winner is the legal consumer.

The good thing about the reception of AI in

Amy Salyzyn, ‘Unavoidable AI?: The Increasing Ubiquity of Generative AI and Lawyers’ Duty of Technological Competence’; Slaw 21 January 2024 online at Unavoidable AI?: The Increasing Ubiquity of Generative AI and Lawyers’ Duty of Technological Competence Liz Chase, ‘How generative AI will revolutionise the legal profession’, (Leo Cussen Centre for Law) online at https:// www.leocussen.edu.au/ai-in-law/ 3 Thomson Reuters, ‘Future of Professionals Report (July 2024) online at https://www.thomsonreuters.com/ content/dam/ewp-m/documents/ thomsonreuters/en/pdf/reports/future-ofprofessionals-report-2024.pdf

GREG BARNS SC

Republic Chambers Hobart Douglas Menzies Chambers Melbourne Higgins Chambers Brisbane Albert Wolff Chambers Perth +61419691846

50 | LAW LETTER

AUDIT • TAX • ADVISORY

51 | LAW LETTER

Your Most Valuable Asset and How to Protect It

By CHARLES BADENACH

If you were asked to list your most valuable assets, your home, your vehicle and your investment portfolio would probably top the list. But it’s easy to overlook the thing that allowed you to accrue all these in the first place; your ability to earn an income.

For most people, the ability to work and generate an income is necessary to achieve many of life’s goals, whether it’s travel, buying a home, or planning for retirement. This need doubles if you’re in your 40s or 50s, which are typically the years people have the highest level of financial commitments. But what would happen if this ability was stripped from you, even temporarily?

Protecting your Income Against Unexpected Shocks Like many other assets you own, your income earning ability can be insured with income protection insurance. That means if you suffer an illness or injury and can’t work, you can still receive a portion of your income to cover dayto-day expenses while you recover.

With income protection insurance, insurance providers will generally allow you to insure up to 75% of your before tax income, but you don’t have to opt for the maximum cover available.

If you believe you can get by on just half of your current income, you can save money on your overall insurance costs by selecting a lower cover option. How long the benefit will last is also up to you — on the shorter end, you can insure your income for two or five years, but policies spanning until age 65 are also available.

Understand When the Policy Will Begin Many income protection policies will also let you choose a waiting period, which is the number of days you are considered unable to work because of your illness or injury, until your benefit period starts. You’ll typically be able to choose between a 30, 60 and 90 day, or 2 year waiting period, with higher premiums payable on shorter options.

If you expect to have enough savings (along with sick and annual leave) to last a few months, you could lower your premium by opting for a longer waiting period. But, you should also consider the possibility that you’ll be back on your feet before this period is over, meaning you would not receive any benefits.

Holding Income Protection Insurance Through Super The good news is you might already have income protection insurance through your super. This is often cheaper than retail insurance, partly because super funds buy their policies in bulk.1 And, while the default cover will most likely be lower and not tailored to your circumstances, you may be able to contact your super fund and arrange to have it increased.

For example, if you’re defaulted to a basic policy with a benefit period of two years, you may be able to apply for one that lasts five years, or until you turn 65. You’ll often have to provide some details about your medical history as part of the application, and in some cases you might be denied cover, or only offered partial cover.

While convenient, there are some things you’ll need to be aware of if you’re relying on income protection insurance through your super. For starters, your premiums will be deducted from your super balance, which can cut into your retirement savings (this can add up if you have multiple super accounts and each has their own insurance policy). And, insurance generally won’t be provided if you’re under the age of 25, or your super balance is below $6,000, except in specific circumstances.

Is Income Protection Insurance Tax Deductible?

You can usually claim a tax deduction for income protection premiums if you hold the policy personally (your super fund claims the tax deduction if it’s in super). Often, however, personally owned policies can be bundled with other forms of insurance, such as Total Permanent Disability (TPD) and critical illness cover, which means you’ll only be able to claim a specific portion of the overall premium.

Consider speaking to a financial adviser before reporting your premiums to understand the deductions you might be able to make.

As for any payments you receive via income protection insurance, if you wind up making a claim, these will count as income and must be included in your tax return.

Other Things to Keep in Mind •

Your benefit is generally based on your

income at the time of claim. Insurers previously offered ‘agreed value’ cover, which was based on a set figure, but as of 31 March 2020 this can no longer be provided (although grandfathering arrangements apply for insurance policies that commenced prior to that).

•

Many policies will come with what is known as an ‘offset clause.’ This allows an insurance provider to reduce the benefit payable, if you receive other forms of income over the same period (with some insurers also offsetting any benefits or income you might receive in the future if they relate to the same condition).

•

When applying or seeking to amend your cover, if you have a pre-existing medical condition, you might be deemed a higher risk and your insurer could increase your premiums, if not exclude the condition from your cover or reject your application altogether. Generally, insurance policies will come with various limitations and exclusions, so make sure to read the insurer’s PDS carefully and ask if you’re unsure about anything.

If you have any questions in relation to your personal insurance or would like your current situation reviewed, please don’t hesitate to contact the Main Street Team at any time.

Goodluck !

Sources 1. https://moneysmart.gov.au/how-lifeinsurance-works/insurance-through-super

CHARLES BADENACH

Main Street Financial Solutions

52 | LAW LETTER

Family Law Case Notes

By CRAIG NICOL AND KELEIGH ROBINSON

Property – Valuations of rural acreage differed by $4,900,000 – leave granted to adduce adversarial evidence where single expert applied comparative sales method and adversarial expert adopted a summation method In Henschel & Sartre (No. 3) [2023] FedCFamC1F 1081 (15 December 2023), Berman J heard countervailing interim applications in respect of valuation issues. A single expert (“Mr LL”) had valued an interest in rural acreage (“the Town O property”) via a comparative sales method at $7,750,000. The husband had engaged an adversarial expert (“Mr MM”) who adopted a “summation method” which “focused on differing land types and the dollar value per hectare” and said that the property was worth $12,650,000 ([48] & [58]). The husband sought leave to adduce the adversarial report as evidence.

Berman J said (from [15]): •

“Separate adversarial evidence can only be called with the Court’s permission subject to three exceptions to the tendering of further evidence from another expert witness on an issue already addressed by a single expert witness, namely:

•

If there is a substantial body of opinion contrary to any opinion given by the single expert witness ...

•

If another expert witness knows of matters not known to the single expert witness … necessary for determining the issue.

•

If there is another special reason for adducing evidence from another expert witness. ( … )

[19] It is not suggested that Mr MM provides his valuation report on the basis of a substantial body of opinion contrary to the opinion given by Mr LL. ( … ) [58] … [I]n the exercise of valuing the Town O property Mr LL considered that a comparison or comparable sales methodology was best suited to the exercise, whilst Mr MM … adopted a summation method ...

[59] The result is that two appropriately qualified experts … have given emphasis to alternate valuation methodologies, resulting in a difference of $4,900,000. ( … ) [62] Bringing to account the different approaches adopted by … the valuers and the outcome representing a substantial difference …, it is appropriate that leave be given … to call separate adversarial evidence from Mr MM.”

Children – Order for interim supervised time set aside on review – Mother who previously agreed to orders for unsupervised time could not have genuine concerns about the children spending unsupervised time with the father In Snow & Curran (No 2) [2023] FedCFamC1F 1120 (20 December 2023), Baumann J heard an application for review of orders made by a Senior Judicial Registrar in respect of the parties’ 11 and 9 year old daughters.

A number of previous interim orders as to time had been made, the first providing for paternal supervised time in circumstances where the mother’s daughter of a previous relationship had made disclosure regarding sexualised behaviour that

presented a potential welfare risk.

Following a police interview that found the alleged risk was unsubstantiated, interim orders were made for unsupervised paternal time that graduated to alternate weekends.

In mid-2023, the mother withheld the children, based on new allegations of welfare risk. In August 2023, she agreed to interim consent orders that provided for unsupervised paternal time for daytime visits.

Despite that order, a Senior Judicial Registrar ordered that the daytime visits be supervised.

The Court said (from [14]): “The competing positions … came before a Judicial Registrar on 28 August 2023. … ( … ) [16] … [N]o supervision for daytime visits with the father was ordered, although … there was a restraint about lying in the bed with the children…

[17] … [A]t that stage, the mother was not raising a concern such that she was seeking orders for supervised time. … [D]uring the hearing before me when I raised this curiosity, I was told that I should see the consent order made … on 28 August 2023 as a ‘holding order’. It makes no sense to me, however, that if there is a ‘holding order for unsupervised time’ that there should, therefore, be any argument about supervision at some later stage unless some new evidence arose. … ( … ) [32] … I have formed the view that I can not accept that the children are at risk in spending unsupervised time with the father including … overnight time, provided some conditions that I intend to impose are complied with … ”

Property – Enforcement of orders that split overseas pension interests – Court declined the appointment of an assessor pursuant to r 7.34 where it would likely need to adjudicate every stage of such an appointment In Gresham (No 4) [2023] FedCFamC1F 1090 (19 December 2023), Altobelli J heard an enforcement application in respect of property orders that required the parties to do all acts and things to cause a husband’s overseas pension interests to be split, so that the wife received the equivalent of 30% of the value of the husband’s interest in the pension ([3]).

The husband sought enforcement orders that the wife sign and post to “RR Pension” certified documents and details as to her address and tax file number.

The wife sought orders that varied the original order, directing the husband to facilitate payment to her of $1,300,000 by way of a lump sum ([4]).

The Court said (from [24]): “[The husband] … lists … what steps the wife needs to take in order to facilitate compliance … and indicates that thereafter RR Pension will be able to facilitate the wife receiving her 30 per cent … ( … ) [25] The wife’s case was that … the orders are impracticable based on the advice she received from a financial advisor … Mr BR … ( … ) [27] The wife indicated … Mr BR instructed her not to sign them due to various issues such as ‘tax contamination’, ‘jurisdictional issues’ and the fact that there is no ‘recognising fund’ in Australia who will allow access to a pension fund at age 50 … ( … )

[34] ... The Court has specifically considered its power to appoint an assessor pursuant to section 102B of the Act, ‘to help it in the hearing and determination of the proceedings … or any matter arising under them’. … [T]he Court does not believe that … it would resolve the differences in expert opinion without disproportionate delay and cost.

The … history of this matter leads this Court to conclude that the Court would need to intervene and adjudicate on almost every stage of the process of appointing an assessor. ( … )”

Procedure – Wife deposed that she had received advice as to having good prospects of obtaining settlement of at least 50% – No waiver of legal professional privilege as deposition an inadvertent and unintentional mistake In Pickford [2023] FedCFamC1F 1087 (15 December 2023), Altobelli J dismissed a husband’s argument that the wife had waived legal professional privilege in matrimonial property and parenting litigation that was part-heard.

The wife filed an affidavit that read “I have been advised that: I have a strong prima facie case and good prospects of obtaining a final property settlement of at least 50% of the non-superannuation net asset pool” and that “the amount I will ultimately receive by way of property settlement will be more than sufficient to cover the amount now sought by me for interim costs” ([2]).

The husband said that the wife had waived legal professional privilege in relation to the advice referred to in her sworn material and asked that it be produced. The wife said that she had mistakenly sworn a draft version of her affidavit, with a subsequent version of the draft deleting the paragraph that referred to her legal advice ([12]).

The Court referred to s 118 of the Evidence Act 1995 (Cth) (as to legal professional privilege) and s 122 of that Act (as to the loss of such privilege) and said (from [7]): “The Full Court in Morris & Morris (No 3) [2023] FedCFamC1F 927 has recently summarised the relevant law … ( … ) [9] The High Court described the applicable principles in Mann v Carnell [1999] HCA 66 as follows: 28. ... It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. ...

29. Waiver may be express or implied. ... What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness … ( … ) [13] … [T]he Court is satisfied that s 122(3) of the Evidence Act does not apply, that is that the wife did not knowingly and voluntarily, expressly or impliedly, waive the privilege that attached to the advice that she referred to. … It was an inadvertent and unintentional mistake, and the wife’s solicitors acted quickly, and reasonably, to protect confidentiality. The Court also accepts that the mistake must have been obvious and apparent to the husband, and on that basis … the privilege should not be lost …”

53 | LAW LETTER

Property – Court erred in double counting premature distribution of matrimonial property – Transfer from joint account to wife’s personal account of historical interest, whereas her dissipation of amounts transferred to her account of critical importance In Zao & Lee [2023] FedCFamC1A 232 (20 December 2023), the Full Court (McClelland DCJ, Jarrett & Riethmuller JJ) dismissed with costs a wife’s appeal against property orders made by Altobelli J that included notional add-backs totalling $636,712 ([5]).

The $636,712 was comprised of withdrawals made by the wife from a joint account, a deposit for a real property and an add-back for gambling ([7]). The wife appealed and argued that the add-backs included $403,930 of funds already on the balance sheet – that the Court had “double-dipped” ([5]).

The respondent husband agreed that the adding back of the deposit ($57,330) was sourced from the withdrawals made by the wife from the joint account, such that the inclusion of both in the balance sheet was an error. The Court adjusted the sum payable by the wife to the husband to reflect the double-dip that was agreed.

As to $145,570 of the controversial withdrawals, the Court said (from [13]): “ … [T]he fact of the transfer from the joint account to the [wife’s] account is of historical interest only.

What is of critical importance is the reason for the dissipation of amounts subsequently withdrawn from the [wife’s] account.

[14] … [The wife’s] case is that [amounts included as add-backs] … were made using the $145,570 transferred to her account from the joint account – an amount already taken up … ( … ) [25] … [T]he [wife] submits before us that the evidence … was that the source fund for the transactions … were ‘a myriad of transactions … ’ …

[T]he … judge was given no assistance to identify how … the myriad of transactions demonstrated what the [wife] now argues. …

[26] The question of whether the add-back items … were double counted is a question of fact to be determined on the evidence presented at the trial.

The evidence … does not persuade us that the … judge [erred] …”

Spousal maintenance – Court erred by finding de facto wife could adequately support herself as she cut down her expenses – Reasonable standard of living under s 90SF(3)(g) does not mean subsistence In Qin & Donato [2023] FedCFamC1A 223 (11 December 2023), Aldridge J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia allowed an appeal against Judge Jenkins’ dismissal of a de facto wife’s application for interim maintenance.

The Court noted that the appeal book spanned 1,951 pages, including 648 pages of invoices, in response to the de facto husband “taking issue with the costs of the appellant’s claimed household supplies, clothing, shoes, cleaning and other necessary commitments” ([4]).

The Court said (from [6]): “In hearing interim spousal maintenance, the Court does not conduct an audit of the parties’ expenses … (…)

[10] ... [R]equiring precise proof of … ordinary everyday expenses … does not appear to be in accordance with [the] obligation under s 67 and s 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) … to conduct the proceedings according to law and as quickly, inexpensively and as efficiently as possible. ... ” As to the dismissal of periodic maintenance, the Court said (from [21]):

“After finding that the appellant’s expenses exceeded her income …, the … judge noted that the appellant was able to support herself without increasing her liabilities since 2 February 2022 (at [27]). ( … )

dismissed with costs a husband’s appeal against an order of the Magistrates Court of Western Australia that he pay $1,647 per week by way of interim spousal maintenance to the wife.

[23] This led to the finding that ‘the [appellant] appears to have been able to adequately support herself without additional support since February 2022’ (at [29]). ( … )

When making the order, the Court also ordered the husband to pay the wife a partial property settlement of $60,000, finding that the net asset pool had an “approximate total value of $2,329,688” ([9]).

[27] … Whilst adequate needs can often be inferred from … expenses, such expenses may not extend to reasonable needs. A person with no income and who cannot pay any expenses, still has needs.

[28] … [W]hat are assessed to be ‘reasonable needs’ are to be assessed having regard to the parties’ previous standard of living. ( … ) [30] … [T]he … judge correctly identified the task as falling short of ‘ensuring’ that the previous standard of living was maintained, that standard remained relevant, albeit not determinative … ”

Appeal – Application to extend time to file draft index to appeal book filed 1 hour before deadline – Appeal deemed abandoned under FLR 13.14(3) despite the filing of that application – Appeal reinstated and security for costs ordered In Fowles [2023] FedCFamC1A 238 (20 December 2023) Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, allowed an appeal against the appeal registrar’s refusal to file an Amended Notice of Appeal, an Application in an Appeal and an affidavit in support.

After a 43 day trial heard over 3 years, Bennett J made orders dividing a $7 million asset pool 60:40 in favour of the wife ([6]). The husband filed a Notice of Appeal against that order within time, but later failed to file a draft index to the appeal book within the 28 day time limit (per r 13.14). He sought to extend the time limit by 2 months.

The appeal registrar rejected the husband’s documents, explaining that where they were filed about an hour before r 13.14(3) deemed the appeal to be abandoned, the application seeking an extension of time could not be listed, served and determined before the appeal would be deemed abandoned ([15]).

The husband appealed the appeal registrar’s decision and filed an application seeking to reinstate the appeal.

The Court said (from [29]): “ … An extension of time is not unreasonable in light of the length of the trial and the volume of documents adduced in evidence . ( … )

The Court found that the husband controlled a family trust, business entities and “various real estate” interests; that he controlled how much he was paid as income (including dividends); that his disposable income was “not clear”; that his income was at least $2,770 per week via rental income and a further $6,942 per week of non-rental income; and that the companies under his control earned profits of $1.6 million in 2022 and $800,000 until May 2023 in that financial year ([11]).

The Court said (from [17]): “The applicant’s point … is that the expenses for the properties were compulsory and therefore should not have been excluded. Yet unreasonable discretionary expenses may also be compulsory, if they are the subject of a contract. It is clear from the reasons in [Mee and Ferguson [1986] FamCA 3] … that what is meant to be included are unavoidable commitments such as taxation, Medibank levy, compulsory superannuation, and the like and necessary living expenses, but not all expenses the subject of a contractual obligation. ( … ) [28] The applicant’s identification of the test, namely that all expenses that are contractual, unavoidable, compulsory or longstanding must be taken into account ignores the statutory requirement of reasonableness and the obligation to make such order as is proper. ( … ) [30] … [W]here it was found without challenge that the exact amount of the applicant’s income was not clear and that he had the capacity to control his income and that it was not reasonable, in the circumstances, for the applicant to prioritise the retention of non-income earning properties the outcome cannot be described as unreasonable or plainly unjust. … ”

[42] The applicant moved with commendable haste to re-instate the appeal after its deemed abandonment.

No prejudice could accrue to the [wife] by the appeal’s re-instatement after such a short interlude of abandonment. …”

The Court considered the wife’s application for security for costs and said (from [58]): “ … The [wife’s] giddy estimate of her costs of the appeal being $600,000 defies rational explanation and is preposterous. Making an order for the … payment of any sum remotely approaching that amount … would be tantamount to the Court’s endorsement of and complicity in the lawyers’ practice of rank avarice. The practice should be condemned, not encouraged.”

Spousal maintenance – No error in exclusion of compulsory expenses associated with nonincome producing real estate – Contractual or unavoidable expenses validly excluded if they are unreasonable In Herczog [2023] FedCFamC1A 219 (7 December 2023), Aldridge J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia,

CRAIG NICOL AND KELEIGH ROBINSON

Co-editors, The Family Law Book craig@thefamilylawbook.com.au keleigh@thefamilylawbook.com.au

54 | LAW LETTER

Page Seager hosted its inaugural Inspiring Women Seminar featuring esteemed speakers Phaedra Deckart, CEO of Solstice Energy, and Kathryn Speed, Principal at Page Seager Lawyers. The seminar, moderated by Anna Ashworth (Senior Associate, Insurance Litigation), provided a platform for these industry leaders to share their professional journeys, lessons learned, and valuable tips for success.

Both speakers, coming from legal backgrounds, embarked on distinctly different trajectories – Phaedra as a trailblazer in the energy sector and Kathryn as a leading lawyer, and a respected Principal at Page Seager. This contrast not only underscored the versatility of legal training but also served as a testament to the myriad possibilities for women in the field. Their experiences highlight the adaptability of legal skills, demonstrating unique and impactful paths beyond traditional legal practice.

The Inspiring Women Seminar is an initiative of three of Page Seager’s respected senior lawyers: Anna Ashworth, Sarah Wilson (Special Counsel, Environment & Planning) and Kate Stockford (Special Counsel, Insurance Litigation). Page Seager is grateful to Anna, Sarah, Kate and the rest of the dedicated team behind the scenes who worked to make the event a seamless and impactful experience.

The overwhelming success of the seminar highlights the importance of such initiatives in providing a platform for the exchange of ideas, fostering mentorship and networking, and empowering professional women. Page Seager is committed to fostering opportunities for women and looks forward to hosting another Inspiring Women Seminar later this year.

Stay tuned for updates on the upcoming seminars.

Emily Creak

Page Seager Lawyers Principal E ecreak@pageseager.com.au