Brief April 2018

VOLUME 45 | NUMBER 3 | APRIL 2018

EDUCATING THE

WESTERN AUSTRALIAN LEGAL PROFESSION

The strongest asset is the one that has the experience to stand tall and also knows when to bend to provide support.

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Volume 45 | Number 3 | April 2018

12

CONTENTS

06

FOLLOW US lawsocietywa.asn.au LawSocietyWA @LawSocietyWA

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27

ARTICLES 06

Law Summer School 2018: Event Wrap

21

UNDA Law School: Educating a different type of lawyer

12

The Juris Doctor: A New Era of Legal Education at The University of Western Australia

24

Preparing students for effective Law practice and future career success

15

Murdoch Law School: Where Law comes to Life

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18

Curtin Law School: Perth’s city based law school

Dominance and Deterrence

DISCLAIMER: The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief.

COPYRIGHT: Readers are advised that the materials that appear in Brief Journal are copyright protected. Copyright is retained by the author.

Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.).

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

Published monthly (except January) Advertising enquiries to Manager Marketing and Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au Communications and Media Officer: Andrew MacNiven Communications and Design Officer: Charles McDonald RRP $16.00 incl GST. Printed by Scott Print

Editor: Jason MacLaurin Editorial Committee: Gregory Boyle, Thomas Camp, Dr Rebecca Collins, The Hon John McKechnie QC, Fiona Poh, Dr Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Eu-Min Teng Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au | Web: lawsocietywa.asn.au ISSN 0312 5831 Submission of articles: Contributions to Brief are always welcome.

For details, contact brief@lawsocietywa.asn.au

REGULARS

President: Hayley Cormann

02 President's Report

46 Law Council Update

04 Editor's Opinion

47 Cartoon

40 Drover's Dog

48 New Members

43 Aunt Prudence Juris: Your one stop solution to problems after law school

50 Professional Announcements

44 Family Law Case Notes

51 Classifieds 52 Events Calendar

Senior Vice President: Greg McIntyre SC Junior Vice President & Treasurer: Jocelyne Boujos Immediate Past President: Alain Musikanth Ordinary Members: Brahma Dharmananda SC, Elisabeth Edwards, Catherine Fletcher, Emma Griffiths, Karina Hafford, Eric Heenan, Fiona Low, Marshall McKenna, Denis McLeod, Jodie Moffat, Nicholas van Hattem, Paula Wilkinson Junior Members: Zoe Bush, Sarah O’Brien-Smith, Brooke Sojan Country Member: Kerstin Stringer Chief Executive Officer: David Price

45 Ex Juris: Travel tales from the legal profession 01

PRESIDENT'S REPORT Hayley Cormann President, the Law Society of Western Australia

Welcome to the April edition of Brief. There have been many events and developments the Society has been delighted to be involved in during the last month, and more broadly, there have been a number of important developments in the Western Australian legal profession generally.

Chief Justice Announces Retirement The Hon Wayne Martin AC, Chief Justice of Western Australia, recently announced that he would be retiring on 27 July 2018.

His Honour is a Life Member of the Society and a former President, having served in the role immediately prior to his appointment as Chief Justice on 1 May 2006. Throughout his tenure, the Chief Justice has been a strong advocate for the administration of justice in Western Australia, highlighting the importance of proper judicial resourcing, access to justice for our community, and also justice reinvestment.

The Chief Justice has been a strident supporter of those in our community most disenfranchised by issues that impinge on access to justice. His Honour has continually placed the spotlight upon the unacceptable and disproportionate rates of incarceration of Aboriginal and Torres Strait Islander peoples, and has repeatedly spoken out against mandatory sentencing legislation.

His Honour has made a vast contribution to the law and the administration of justice in Western Australia and will be greatly missed.

On behalf of the Council and all members of the Society, I thank His Honour for his exceptional service and wish him the very best in his future endeavours.

Uniform Law, current court resourcing and mandatory sentencing.

our concerns with mandatory sentencing to numerous State Governments and Attorneys General.

Judicial Ceremonies

Mandatory sentencing comes with the significant financial and social cost of imprisoning offenders, despite the lack of substantial evidence as to its effectiveness in positively affecting an offender’s future behaviour or reducing rates of offending.

I was delighted to represent the Society at a number of ceremonies held in March to welcome members of the judiciary. The Honourable Justice Anthony Derrick was welcomed to the Supreme Court, while their Honours Judges Fiona Vernon, Wendy Gillan, John Prior and Amanda Burrows were welcomed to the District Court.

Law Council of Australia I also attended the first of the 2018 quarterly meetings of the Law Council of Australia directors, in Adelaide with the Society's CEO. A range of matters were discussed at the meeting including the proposition of a federal corruption and crime commission and associated issues, consideration of the concept of a national competence statement for all Australian lawyers, and stakeholder consultation and input needed into the substantive review underway of the family law system in Australia.

An Evening with the Chief Justice On Thursday, 5 April, the Chief Justice met with Aboriginal and Torres Strait Islander legal practitioners, graduates and students at an event organised by the Society.

Held in the Judges’ Conference Room at the David Malcolm Justice Centre, this event also provided attendees the chance to connect with other members of the profession and engage with representatives of the Society’s Indigenous Legal Issues Committee.

Mandatory Sentencing

A ceremonial sitting of the Full Bench of the Supreme Court of Western Australia will be held on 20 July 2018 at the David Malcolm Justice Centre to farewell the Chief Justice.

A recurring advocacy issue for the Society is mandatory sentencing. Members may have read my comments in The West Australian of 19 March relating to mandatory sentencing for assaults on public officers.

Meeting with the Attorney General

While such conduct is never acceptable and should be dealt with by our justice system, mandatory sentencing regimes are not an appropriate or effective solution. The Society and the Law Council of Australia have been consistently opposed to the use of all mandatory sentencing regimes. Over time, we have articulated this opposition and

In March the Chief Executive Officer and I met with the Hon John Quigley, Attorney General of Western Australia. It was a very productive and valuable meeting, and we discussed a range of matters including reform of the Western Australian legal profession, including the Legal Profession

02 | BRIEF APRIL 2018

Mandatory sentencing also represents the placing of unacceptable restrictions on judicial discretion – taking decisions out of the hands of judges and magistrates. Under mandatory sentencing regimes, judicial offers are denied the capacity to take into account all of the relevant factors and mitigating circumstances of the matter before them.

This is contrary to the essential separation of powers principle upon which our legal and democratic systems are built.

The Society will continue to express its opposition to mandatory sentencing, both in the public eye and in its discussions with our political representatives. The Society advocates, at the very least, an exception to mandatory sentencing regimes for those suffering mental illness, and most certainly for child offenders. The Society will continue to promote long-term, lasting solutions, such as justice reinvestment programmes that seek to tackle criminal offending at its source.

Law Summer School Review In this issue you will find a comprehensive review of Law Summer School 2018. I was delighted to open the conference and to talk with so many delegates throughout the day. As well as a learning opportunity, Law Summer School is also a chance to catch up with old colleagues and make new connections within the profession. It was great to see many familiar faces, as well as many new ones. We look forward to seeing you back at Law Summer School next year.

As this issue of Brief demonstrates, legal education may begin at law school but does not end there. The practice of law mandates life-long commitment to continuing professional education and the Society supports you by delivering a carefully curated CPD programme, which draws consistently upon the expertise of leaders in the legal profession and specialists in fields outside the law.

SALARIED/EQUITY PARTNERSHIP OPPORTUNITIES PARTNER/SA/SC – COMMERCIAL LAW – Build and lead the Commercial Law practice within a full service national mid-tier firm. Our client has a strong presence in the WA market with a team of Partners/ lawyers who have worked together for many years.

With a renewed focus on strategic growth and plans to double in size over the next 24 months, the incoming Partner will lead the WA Commercial Law practice, advising clients on business sales and acquisitions, joint venture agreements and business/ asset structuring, complex wills and estate planning, property law advice, commercial and retail leases, and related commercial law matters. This position would suit an experienced Partner with the ability supervise and mentor junior lawyers who can bring a transferable fee/client base of $200K+, or a driven SA/SC level lawyer looking to build their practice and join the Partnership within 2-3 years.

PARTNER/SA/SC – CORPORATE/M&A – Join as Head of Corporate in Western Australia and inherit a $800,000 fee base. KBE has been briefed to secure an established Partner or SA/SC looking to step up and take on the position of Head of Corporate/M&A within a rapidly growing national firm. This is an exciting growth role in building/leading the firm’s Corporate Practice in WA. Working closely with leading top-tier Commercial, Property, Litigation and Workplace Relations Partners, as well as the wider Partnership team, the incoming Partner/SA/ SC will have quality experience across M&A, ECM, IPO’s/RTO’s, and related corporate and regulatory matters. You will inherit a loyal client base which includes high profile listed/private companies, with international reach and exposure and some focus on SE Asia and emerging markets. This position would suit an experienced Partner or motivated SA/SC who is motivated to rapidly establish their personal brand within the WA Corporate market, inheriting a $800,000 practice from a retiring Partner from the outset.

PARTNER – CORPORATE/M&A – Break away firm to launch in FY2019. KBE is working with a number of top-tier Senior Partners who are planning to break away from their national/international firms and establish a market leading boutique firm. With existing skill sets across Energy & Resources, Mining, Projects and Infrastructure, they are now seeking a quality Corporate/M&A Partner to head up the practice and benefit from their extensive referral networks. The Partners are confident of generating $5M-7M+ in their first year and the incoming Partner does not need an extensive transportable practice, provided you can actively build client relationships within their networks.

PARTNER/SA/SC – PROPERTY – Join as an established Partner or transition to Partnership.

KBE has been briefed by a leading WA law firm to secure a high calibre Property Lawyer with a small transportable client base to build/lead the Property Law team within a medium sized firm. The firm offers a range of business and private client services and are looking for a motivated Partner/SA/SC to add Property Law to their current service offerings.

You will work closely with the firm’s Partners to leverage their existing client base and further build your practice, benefiting from an extensive referral network. We are interested in speaking to lawyers with 6+ years’ PAE through to Senior Partner level, from national/international or leading boutique firms and a transportable fee base of $100,000+.

We are also keen to speak with lawyers who can

demonstrate a network of clients and potential clients from which to rapidly develop a fee base.

You will be highly motivated to join as a Partner or become a Partner within 2-3 years, with an interest in BD/networking.

PARTNER – WORKPLACE RELATIONS – Leading WA firm. This well-known WA law firm is seeking a Senior Lawyer and Head of Workplace Relations to build and lead their practice. The incoming lawyer will inherit a fee base of circa $500,000, working closely with the other Partners to drive business development activities and gain further market share. Our client is seeking a Lawyer from a national/international or well-regarded boutique firm as they continue to develop their brand and build into the mid-tier in the WA market place. This position would suit applicants with 5-10+ years’ PAE looking to step up and take on a leadership role within a highly collegiate, driven Partnership that dedicates significant time and resources to strategic planning. You will be willing to mentor junior lawyers with demonstrated aptitude for building and maintaining client relationships.

2 YEARS’ PAE TO SENIOR ASSOCIATE/ SPECIAL COUNSEL BANKING AND FINANCE LAWYERS for two toptier firms (permanent and 12 month contract opportunities available). KBE Human Capital is working with several leading Banking and Finance teams to secure B&F Lawyers with 3-7 years’ PAE. With opportunities at both national and international firms, the successful candidates will have experience from top-tier/international firms dealing with complex transactions, with an interest in mining and energy project financing across Australia and various emerging markets.

CORPORATE/M&A ASSOCIATE OR SENIOR ASSOCIATE for a leading national mid-tier firm. This team specialises in providing strategic Corporate and Commercial advice to public/private companies, and has a long established network of corporate advisors throughout Perth. Working closely with Boards and Directors, you will provide strategic advice across IPO,s, backdoor listings, secondary offerings (rights issues, placements and share purchase plans), continuous disclosure compliance and ASX Listing Rules compliance, ECM, capital management including buy back and capital reduction transactions, prospectus and offer documentation, underwriting agreements, sub underwriting agreements and mandates. We are interested in speaking with Lawyers with 4+ years’ PAE and exceptional Corporate Law experience from a national/international or leading boutique firm.

You will have the ability to work autonomously and manage complex matters. The successful candidate will be interested in supporting the firm’s Senior Partners with business development activities, attending functions, and delivering presentations.

CORPORATE/M&A LAWYERS for multiple firms across all tiers. If you are an Associate or Senior Associate with 2-5 years’ PAE or 5-10+ years’ PAE, then you are in high demand. With the resources and commodities markets beginning to rebound, now is an excellent time for Corporate/M&A/ECM Lawyers with quality experience to assess your career options and ensure your salary levels remain in line with current market trends. We have active roles with quality boutiques through to the largest international firms.

FAMILY LAWYERS for national, multi-disciplinary and boutique firms. KBE has active briefs from numerous leading national, multi-disciplinary and boutique firms with long established networks.

Chris Bates

Siemone Neutgens

Sharon Apathy

Managing Director

Principal Consultant

Principal Consultant

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

M: 0403 383 326 E: siemone@kbehc.com.au

M: 0413 132 049 E: sharon@kbehc.com.au

Working on a diverse range of Family Law matters, several of the firms encourage lawyers to complete their own Court work, whereas others brief counsel extensively. We are interested in speaking with lawyers with strong technical skills and a willingness to attend and drive business development activities alongside Partners and SA’s.

INSURANCE LAWYERS with a professional indemnity and medical negligence focus – 1 year and 3+ years’ PAE. We are currently working with one of Australia’s best regarded specialist insurance teams to secure two quality PI/medical negligence lawyers. The firm has an exceptional reputation nationally with Partners who are recognised as experts throughout Australia. The successful applicants will work closely with Partners, SA’s and Junior Lawyers and advise clients across complex PI and medical negligence matters. You will be responsible for individual case management, regular communication with clients and other stakeholders, preparation for directions hearings, case management conferences, mediations and trials. We are interested in speaking with suitably qualified lawyers with 1+ year and 3+ years’ PAE and a strong background in PI and/or medical negligence. Junior lawyers with more general Insurance experience from plaintiff/defendant firms, strong academics and exceptional attention to detail will also be considered.

IN-HOUSE/CORPORATE ADVISORY ROLES for Corporate/M&A/Commercial Lawyers with 2-7 years’ PAE. We are currently working with one of the region’s leading organisations to secure two Corporate/M&A or Commercial Lawyers for junior and senior in-house/corporate advisory roles. Joining a highly collegiate team of lawyers, you will play an important role in providing corporate law advice to the group of companies within their diversified company portfolio. You will have experience advising in relation to corporate/ASIC/ASX compliance issues and a working knowledge of the Corps Act, with the ability to advise decision makers within this financial institution’s client network. There are two positions available – the more senior role will be suited to a Corporate/M&A Lawyer with 4 8 years’ PAE who is keen to move into an in-house role and oversee a team of junior Lawyers, working closely with senior stakeholders and briefing complex matters to toptier law firms. You will be looking to join a highly collegiate team, comfortable working directly with senior stakeholders both internally and externally, and confident working with a significant level of autonomy.

WORKPLACE RELATIONS LAWYER to join national firm. This is a unique opportunity for a Workplace Relations lawyer at the Associate/SA level to join a growing national firm and build an Employment practice alongside a newly appointed Partner. You will gain exposure to a range of complex matters across workplace investigations, performance and conduct issues, terminations, IR and OH&S matters.

You will advise a suite of ASX listed companies across the full spectrum of Employment, IR and OH&S matters, from both an advisory and litigation perspective. This position would suit an experienced Associate/SA level lawyer from a top or mid-tier firm with a strong interest in client engagement and BD activities, with the drive to progress to Partnership over the next 3-5 years.

Please contact Chris Bates, Siemone Neutgens or Sharon Apathy to discuss the above positions, or for comprehensive advice on the opportunities available throughout the Western Australian legal market.

KBE Human Capital P: 08 6467 7889 A: 1322 Hay Street, West Perth 036005 W: kbehumancapital.com.au

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

This year’s Law Summer School featured a number of eminent speakers, including the Hon Justice Julie Ward, Diane SmithGander and the Hon Robert French AC. The event’s description as a “school” reflects the humbling nature of the profession, in that a lawyer is always in the process of learning.

It is fitting that this month’s Brief contains contributions from the State’s five law schools. The articles provide an interesting insight into the approaches and focus of our law schools, given the changing nature of the profession, law students and what is expected by and of them, and the degree itself.

Last month’s Editor’s Opinion referred to the recent debate arising from the PM’s comments about there being too many law students.

Whatever might be said about the study and practice of the law, it does engender a more sophisticated means of problem solving and dealing with difficult situations and ethical issues than “just quickly shove it down the front of your pants”.

It also develops skills in persuasion, negotiation, presenting or defending a case or position, and completing a transaction or resolving a dispute on acceptable terms.

And, as with many aspects of life, different styles and techniques can be deployed in exercising these functions.

It would be interesting to get readers’ views of the effectiveness of the press conference techniques used by Messrs Smith and Bancroft on the one hand,1 and the quite different style deployed by Grigory Logvinov, the Russian ambassador to Australia (and, arguably, David Warner).2 April Fool’s Day did not fall on a working day this year, which was undoubtably of great relief to practice managers, HR departments, professional indemnity insurers, building managers and cleaning staff.

A great April Fool’s Day joke was successfully executed a few years ago by a London barrister, Matt Scott.

Mr Scott blogged about the outrage caused by the hasty introduction of the “Numeracy and Statistics Initiative Scheme” (NASTI), applying to criminal barristers admitted after a certain date, and requiring them to

04 | BRIEF APRIL 2018

undergo testing in mathematics. Its purpose was reportedly to “protect the public by ensuring that we weed out that small but dangerous minority of criminal lawyers who lack the basic mathematical skills necessary to function in a modern legal system”.

It was also reported that Crown Prosecutors would be exempt as “there is absolutely no evidence of any lack of mathematical ability in prosecution lawyers. This is something that applies only to the defence.” This reported exemption, rather than clearly alerting readers to the joke, actually triggered greater expressions of outrage, suggesting some simmering tensions between prosecutors and defence lawyers at the time.

This year was the 140th anniversary of the tabloid New York Graphic’s classic April Fool’s Day report that Thomas Edison had invented a machine that could make “biscuit, meat, vegetables and wine” out of air, water and dirt. Edison’s reputation at the time was such that this was widely believed.

It would be nice to think that, today, there would be more scepticism about such a claim. However, given technical advances, and the nature of millennials in particular, there is a creeping suspicion that if the same claim were published this year the common reaction would be (on Twitter of course) along the lines of: “Gosh – is there anything Elon Musk can’t do?”

This year was also the 20th anniversary of Burger King’s “left handed whopper”3 April Fool’s Day joke. If done today, rather than being regarded as a classic, it would almost inevitably result in lawsuits from gullible, humiliated customers.

Lindsay Lohan announced on 1 April this year that she had been asked to speak at Harvard Law School and the Oxford Union (attaching a purported invitation from the Oxford Union).

The problem for many in working out whether this was an April Fool’s Day joke is that just three weeks before, and for real, the US website lawyer.com appointed Lindsay Lohan as their spokesperson for the lawyer locating-service.4 Further complicating matters is that universities occasionally make odd choices concerning speakers and honorary law degrees.

The first ever honorary university degree was apparently a law degree from Oxford given to Lionel Woodville, the Dean of Exeter and brother in law of Edward IV in the 1470s.

While viewed by some as an attempt to curry favour with an influential person, in fairness, Woodville already held a Bachelor of Canon Law (the honorary degree being a Doctorate of Canon Law) and later became chancellor of the University.5 Some honorary law degrees have not turned out so well, and are more notable for their revocation – such as the University of Edinburgh’s Doctorate of Law awarded to Robert Mugabe.

Interestingly, Australian musician (among other artistic talents) Nick Cave has two honorary Doctorates of Law. The link to the law is not immediately apparent. However it may be because some of Mr Cave's less upbeat songs provide the perfect playlist for a lawyer locking themselves away for two days mourning a bad performance or result.

The Editor is pleased to note a marked uptick in correspondence to Brief, especially in response to the Drovers’ Dog. These communications have made the Editor feel less like Tom Hanks sitting in a cave conversing only with a volleyball.

Any feedback on this month’s Brief, items in it, or submissions on any topics of interest would be much appreciated.

NOTES: 1

In respect to both Smith/Bancroft’s first effort, and the much better received sequels on home turf.

2

Regarding Warner’s press conference, there are, notably, more people making statements to the media expressly denying any involvement in it, than are acknowledging any input (the latter class being precisely zero, at the time of writing).

3

There was, at this point, going to be a joke concerning the “left handed whopper” which, when developed, would have had David Warner as the punchline.

However, Brief does not encourage the un-Australian practice of piling-on.

4

Ms Lohan jokes in a video on lawyer.com’s home page that she’s well qualified to know all about needing to find a good lawyer. She did not tell any jokes about her last five movies, or her exquisite judgment in being the only celebrity to come out staunchly defending Harvey Weinstein.

5

See B Burrows, “What exactly is the point in giving celebrities honorary degrees?” (13 May 2015) telegraph. co.uk

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

Letter to the Editor An Aboriginal Advisory Body

To: Jason MacLaurin, Editor, Brief I read the article on this topic by Professor Bertus De Villiers in the March issue of Brief with considerable interest but was very disappointed in the scope of the article. While Professor De Villiers is correct in noting the complexity involved in successfully amending the Constitution he fails to see the inherent weakness of enacting easily amended (or repealed) legislation. When one considers the dialogues undertaken in Aboriginal communities to reach the very remarkable Uluru Statement from the Heart it becomes clear that what is needed must give Aboriginal people a permanent voice in Parliament.

That cannot be done with legislation. It is exactly the kind of issue that requires Constitutional enactment.

The Aboriginal people can be excused for having little confidence in Commonwealth legislation as they have experienced the repeal of Aboriginal organisations and programs over the years.

I was fortunate to have attended the lecture on 12 March 2018 at UWA by Professor Megan Davies on the Uluru Statement from the Heart. Professor Davies is an Aboriginal woman, the Pro-Vice Chancellor Indigenous and Professor of Law at UNSW. She currently serves as a UN expert with the UN Human Rights Council's Expert Mechanism on the rights of Indigenous peoples, an organisation based in Geneva.

Professor Davies is the leading Constitutional lawyer working on Indigenous constitutional reform in Australia since 2011. In 2015 she was appointed by the Prime Minister to the Australian Referendum Council and she designed the deliberative constitutional dialogue process the ARC undertook which lead in 2017 to the Uluru Statement from the Heart. It was a remarkable process.

Prior to 2015 there was support from both major parties for a referendum to provide what could be called "minimalist" recognition for Aboriginal people in the Constitution. Well-meaning proponents advanced the minimalist approach believing it would be easily achievable. Such merely symbolic recognition was rejected by ATSI. And eventually the realisation came that it might be difficult to succeed in any referendum if the proposal did not have the support of Australia's Aboriginal people. Nobody had asked them.

Aboriginal leaders including Professor Davies approached the Prime Minister at the Kirribilli meeting in 2015 and some funding was provided for another process where there could be a real dialogue with Aboriginal people. Funding was only sufficient for 12 Regional three day dialogues involving

Traditional Owners, Aboriginal organisations and Aboriginal people. These dialogues were held at places including Hobart, Broome, Dubbo, Darwin, Perth, Sydney, Melbourne, Brisbane and Thursday Island.

These dialogues were unprecedented in Australia involving 1,200 delegates. They were the most proportionate consultations ever done. They seriously embraced dialogue including a Civics program and a history of the struggle of Aboriginal people following colonisation. Dr Cheryl Saunders, the leading professor of constitutional law in Australia, was consulted on Constitutional issues.

Many constitutional lawyers were needed for the dialogues; they were trained and enlisted. They well understood and helped Aboriginal people understand that amending the Constitution differs from enacting legislation. If we are to have a referendum recognising Aboriginal people in the Constitution the Uluru statement sets out the carefully considered wishes of Aboriginal people for what should be in such a referendum.

The process culminated with the Uluru Statement from the Heart containing the three essentials for the referendum: 1. A First Nations Voice in the Parliament. This was the overwhelming plea from the Aboriginal people who had heretofore felt only powerless and voiceless.

2. A Treaty/Makarratta Commission to supervise the agreements being made between governments and First Nations people.

3. Truth telling about the history of First Nations peoples not known or recognised.

4. So far the Uluru Statement has been rejected by governments who thought they had minimalist recognition "in the bag" for Aboriginal people until they belatedly discovered that is not what Aboriginal people want.

It is not to the point now to suggest the carefully thought through referendum proposals in the Uluru Statement can be dealt with by legislation leaving Aboriginal wishes without constitutional protection. I respectfully find Professor De Villiers' recommendations unhelpful.

Her Honour Mary Ann Yeats AM District Court of Western Australia (retired)

LAW SOCIETY EVENT

CONNECTED | INFORMED | GLOBAL

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Friday, 23 February 2018 The University Club, Crawley, WA

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Law Summer School, the Law Society’s annual flagship legal education conference, was held on Friday, 23 February 2018. The day opened with delegates enjoying a delicious breakfast in the University Club of Western Australia Banquet Hall. Noongar Elder Barry McGuire provided a Welcome to Country and Society President Hayley Cormann opened the conference.

The Hon Christian Porter MP, AttorneyGeneral for Australia gave opening remarks. Mr Porter said, “I am proud to say I have not been a fair-weather friend to the Summer School, having attended dutifully each and every year to get my CPD points... We are all in school again for a day and continuing on that endlessly steep learning curve that is the law.

It’s an opportunity to catch up with old friends, colleagues from past jobs and past lives… My ongoing congratulations, having been here for the last five years, to the organisers for the tone and content of the day and the assembling of such an eminent group of speakers.”

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Law Summer School again proved the ideal forum to debate the most important issues facing the legal profession and the wider community. The day opened with an expansive panel discussion facilitated by the Hon Robert French AC on the subject of the greatest challenges for the legal profession over the next five years and what can be done to overcome them.

For the plenary session, delegates moved through to the Auditorium. We were delighted to hear from the Hon Justice

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Julie Ward, Chief Judge in Equity from the Supreme Court of New South Wales who presented on the important topic of Fragmenting Equities. Delegates then split into a concurrent session of their choice, either: Domestic Violence and How Well We Deal With It, Multidisciplinary Practices, Some Important High Court Commercial Law Cases or Diversity and Inclusion in Legal Practice. The latter was chaired by Dr Andrew Lu OAM, the Society's Manager Professional Development. As part of the Society's commitment to promoting diversity, equality and inclusion, you will find a snapshot of a Lawyers Weekly and Thomson Reuters LGBTQI survey on page 39 of this issue of Brief.

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After enjoying a well-earned lunch, delegates heard from Grant Donaldson SC, who presented on Current Issues of Civil Liability. The day concluded with a keynote presentation on leadership and strategy by Diane Smith-Gander, NonExecutive Director of Wesfarmers Limited.

Ms Smith-Gander said businesses had failed to address gender equity. “We're not finding a way to make Australians feel they will maintain a higher standard of living than the generations that came before them.”

Ms Smith-Gander said businesses had to take a strong lead on social as well as economic issues. “We can't wait for governments to act to respond to economic and technological disruption.” She then took a number of questions from our delegates. It was a fantastic opportunity for discussion and debate with a leader in corporate Australia.

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A superb day of sessions concluded with delegates catching up over refreshments. Thank you to our sponsors: Marsh, PEXA, legalsuper, LEAP, Bankwest and UWA Law School.

Thank you to everyone who joined us for a day of valuable insights and knowledge. Please see the Society’s Facebook page for more photos from the day. We look forward to seeing you again in 2019.

Photos: The Scene Team 1.

Hayley Cormann

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The Hon Justice Julie Ward

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The Hon Christian Porter MP

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Dr Brenda McGivern

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Barry McGuire

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John Fiocco

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The Hon Robert French AC

10. Alain Musikanth, Chris Smailes, Philippa Rezos, Professor Gino dal Pont, Jonathan Leek

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Diane Smith-Gander

11. The Hon Katrina Banks-Smith, Malcom McCusker, Dr Andrew Lu OAM

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The Hon Justice Janine Pritchard

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Sarah O Brien-Smith, Hayley Cormann, Nigel Hunt, The hon Robert French AC, Peter Quinlan SC, Catriona Macleod, Helen Creed

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Ă ine Whelan, Dr Brenda McGivern, Diane Smith-Gander, Hayley Cormann, Dr Andrew Lu OAM

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Charlotte Wallace, Dr Andrew Lu OAM, Fadzi Whande, Asanka Gunasekera, Dr Ambelin Kwaymullina

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Brahma Dharmananda SC, Nicholas Ellery, Michael Sims

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Commissioner Chris Dawson, Her Hon Judge Julie Wager, Karen Farley SC, Amanda Forrester SC, The Hon Justice Joseph McGrath

With thanks to our sponsors

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Concurrent session sponsor

Keynote Plenary Sponsor

Closing Keynote Sponsor

Diversity and inclusion in legal practice

Fragmenting equities

Leadership and strategy: lessons learnt from corporate Australia

Venue sponsor

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09

BOOK REVIEW

A History of Australian Legal Education

By Ian David Barker Review by John McKechnie QC Fellow Australian Academy of Law This may not be a riveting page turner for everyone. However I found it interesting.

The author emeritus Professor David Barker, traces the development of legal education in Australia From 1788 with reference to all the states. Barker is well qualified to write on the subject as former Dean of the Faculty of Law UTS. While much of the book is an historical exegisis, the author is not afraid to express his opinion when appropriate.

The author traces the evolution of legal education in Australia. The first three lawyers in the colony of New South Wales were convicts. The first recorded legislation in Australia regulating the admission of lawyers was the Barristers Admissions Act 1848 (Imp). In Western Australia the first law school of UWA was founded in 1927.

In Western Australia, barristers, but not solicitors could be qualified to practice for much of the 19th century.

The University could not afford a law school until the Barristers Board, by levying a £6 charge on the practice certificate, paid the University £500.

Western Australia is now 'blest' with five law schools.

Of contemporary interest the second part of the book, from Chapter 6 deals with 'an avalanche of law schools', the so-called third wave.

Dealing with what the author describes as an 'exploding market' for law schools the author quotes then Professor Ralph Simmonds' view that there is a greater emphasis on innovation in teaching and assessment strategies in third wave law schools, those established between 1989 and 2015 than occurred in the earlier law schools.

The effect of training for articled clerks and the expense of practical legal training and continuing legal education are touched upon though not in the same depth as the influence of law schools. The author here is descriptive but does not profess opinions on the efficacy of such training.

Essentials of Advocacy and Negotiation

I was at various times President of the forerunner to ALSA and member of the Law Admissions Consultative Committee, and the ATP in Western Australia and so found the work both accurate and informative in its description of these bodies and the evolution of legal education both within law schools and at a practical level. That said, his references to law professors and law deans tends towards the hagiographic on occasion.

The author does not shy away from confronting the age old tension as to what is the role of legal education and the difficult task of finding a balance between "divergent academic and community concerns in legal education" to quote Professor Eric Colvin.

As one who treats the law as a profession, not a trade, I found the History an accessible interesting addition to legal scholarship, one with contemporary relevance.

Save the Date

Friday 22 and Saturday 23 June 2018 Designed for newer lawyers and those seeking a timely refresher, Essentials of Advocacy and Negotiation provides valuable information to advance an understanding of how to persuade and present compelling arguments. Hear from a distinguished cast of pre-eminent members of the legal profession on case theory and presentation, opening and closing statements, examination and cross-examination, what makes a good advocate, and how to negotiate with confidence.

10 | BRIEF APRIL 2018

This year’s training includes an additional focus on negotiation. Best practice negotiation leads to better relationships and successful business outcomes.

The powerful combination of strong advocacy and negotiation skills is essential for lawyers to be successful in today’s contemporary business environment.

To express interest please contact cpd@lawsocietywa.asn.au

A SPOTLIGHT ON TERTIARY LEGAL EDUCATION IN WESTERN AUSTRALIA

Featured articles 12 The Juris Doctor: A New Era of Legal Education at The University of Western Australia 15 Murdoch Law School: Where Law comes to Life 18 Curtin Law School: Perth’s city based law school 21 UNDA Law School: Educating a different type of lawyer 24 Preparing students for effective Law practice and future career success

With special thanks to our contributors:

School of

Business & Law

The Juris Doctor: A New Era of Legal Education at The University of Western Australia

By Associate Professor Natalie Skead Dean, School of Law, The University of Western Australia

In February 2013, and 85 years after its establishment, The University of Western Australia (UWA) welcomed its first cohort of Juris Doctor students. Five years on, as the Law School celebrates its 90th anniversary, it is timely to reflect on this significant change in the delivery of legal education in Western Australia.

and Penny Carruthers Deputy Head, Learning and Teaching, School of Law, The University of Western Australia

Background The Juris Doctor (‘JD’) is a three-year professional Law degree studied at Masters level. The initial moves towards introducing a JD at UWA commenced in 2009 when the university reshaped and streamlined all its courses so as better to prepare graduates ‘for the challenges of a changing world’.1 Under the current structure,2 which came into effect in 2012, undergraduate students at UWA have a choice of enrolling in one of five Bachelor degrees: Bachelor of Arts, Bachelor of Commerce, Bachelor of Biomedical Science, Bachelor of Science and Bachelor of Philosophy.

All five Bachelor degrees offer a range of majors and option units and students are required to take ‘broadening units’ from courses outside the student’s primary degree. After completion of the undergraduate degree, students may choose to go on to complete Honours and/or a postgraduate coursework degree such as law, medicine, dentistry, architecture or engineering.

12 | BRIEF APRIL 2018

As a result of these changes, law at UWA is now offered as a postgraduate Masters level JD degree only, rather than as an undergraduate Bachelor of Laws degree (‘LLB’) as was the case prior to 2012. From 2013, all incoming UWA law students study law exclusively as a postgraduate JD degree.

Legal education at UWA – A Brief History The transition to a purely postgraduate law degree at UWA is the latest chapter in a long and evolving history of legal education at UWA. Between 1928 and 1972 our law students enrolled in a four-year undergraduate LLB degree.

From 1972, law students were no longer admitted straight from school. Rather, they were required to complete a year in another discipline before entering a three-year Bachelor of Jurisprudence (BJuris). The LLB became a professional practice one-year degree undertaken after completion of the BJuris.

well-informed decision to pursue JD studies. The JD students are committed to their law studies. Second, since the JD is a postgraduate degree, students have already successfully demonstrated fundamental academic skills. This allows the Law School, in teaching the JD, to focus on equipping students with the specialised legal skills required to make a meaningful contribution to the legal profession and broader community. Third, JD graduates are typically, although not always, older than the LLB graduates many of whom commence their Law studies as school leavers. Therefore, JD graduates are well-placed to take up graduate positions in a demanding and rapidly changing profession. Fourth, the JD is a highly-regarded and widelyrecognised degree internationally that provides greater scope for admission to legal practice in other common law jurisdictions.

A Masters level law degree In 1992, UWA followed the path then being taken by many other Australian law schools and abandoned the BJuris in favour of combined degrees, for example, Law/Arts and Law/Commerce (LLB/BA and LLB/BCom). This innovation came about as a result of discussions with students who, having completed a year of a degree in another discipline, wished to complete that degree while continuing their law studies. Students were able to enrol in the combined degrees straight from school. The minimum time for completion of a combined degree was five years; however, this entailed an overload in studies in each semester of the degree. Consequently, students studying in the combined degrees often took six year to complete their studies. In addition to the combined degree, students who already had an undergraduate degree could enrol in a single degree: the three-year LLB.

Why the JD? In introducing the JD, UWA followed a trend by Australian law schools. In 2003 only four Australian law schools had a JD program,3 now there are some 12 JD programs in place across the country.

However, UWA is currently the only Law School in Western Australia to offer a JD. The reasons for the burgeoning of the JD in Australia are many and varied. In their article, ‘The Emergence of the JD in the Australian Legal Education Marketplace and its Impact on Academic Standards’, Cooper, Jackson, Mason and Toohey identify four factors contributing to the increased adoption of JD programmes in Australia: (1) an increased demand in the

Australian workplace for highly qualified tertiary graduates; (2) an increased interest in postgraduate study by matureaged students; (3) financial pressure on Australian law schools to attract full feepaying postgraduate students; and (4) the perception that the JD is an internationally recognised legal qualification. In this regard, the JD is the principal pathway to admission to legal practice in North America.

An added impetus for the introduction of the JD at UWA was the significant increase in law schools in the State and indeed, in the country, over the past two decades. Up until 1990 UWA was the only West Australian University with a Law School. Since then Murdoch University (1990), the University of Notre Dame, Fremantle (1997), Edith Cowan University (2005) and Curtin University (2013) have introduced Law degrees into their courses. In this time, the number of Law Schools nationally has increased to 39. The UWA Law School saw the University’s introduction of the new course structure in 2012 as a good opportunity to introduce a Master level JD law degree that would distinguish it and its law graduates from local and national competitors.

Five years into the JD and having now graduated three cohorts of JD students, there are several reasons why the UWA Law School welcomes the change from an undergraduate LLB degree to a postgraduate JD. First, as all entrants into the JD are graduates, it can be expected that they will have taken several years to weigh-up their career options and made a considered

Under the Australian Qualifications Framework (AQF), which provides minimum standards for a range of Australian qualifications, the JD is categorised as a level 9 Masters degree.

The LLB is a level 7 undergraduate degree. The AQF levels define the ‘relative complexity and level of achievement and the autonomy required of graduates to demonstrate that achievement’.4 There is, therefore, a subtle yet significant difference in achievement between AQF level 7 and level 95 courses which requires the JD program to be delivered and assessed at a more rigorous and advanced level than is the case with the LLB. At UWA, this difference is reflected in the course structure, contact hours, core content and the assessments that are built into the course

Equity and Diversity An added benefit of introducing the JD has been a ‘levelling of the playing field’ and therefore greater equity in the application, selection and admission processes. Whereas previously, the majority of incoming LLB students at UWA were school-leavers with high ATAR scores, entry into the JD is based primarily on an applicant’s performance in his or her three-year undergraduate degree and other postgraduate study and the Law School Admissions Test.6 This change in the basis for selection into the JD program as well as the introduction in 2016 of an Equity and Diversity Pathway in to the JD has resulted in the study of law at UWA being open to a far wider and more diverse range of students than was the case in the LLB. 13

This diversity is reflected in the demographics of the 2018 JD cohort.

The students range in age from 21 to late '50s, with a 59:41 female to male ratio.

The educational background of the JD students is diverse and covers a wide range of disciplines including music, psychology, philosophy, economics, biomedical science and nursing. While most students have entered the JD with a Bachelor’s degree only, there are several students with postgraduate qualifications including a Masters degree in a different discipline. The result is an interesting and dynamic mix of students with a variety of skills and interests.

weeks before semester starts and will provide a platform for embedding legal professionalism (including resilience, wellbeing and work-readiness) into the

six words that encapsulate what they wish to obtain from studying the JD at UWA. The ‘wordle’ produced from this exercise speaks for itself.

The cohort experience All students enrolled in the JD study law only, as opposed to combined courses across a number of Schools and Faculties. The JD cohorts are, therefore, closer and more cohesive groups with all full-time students taking the same units and progressing through the degree together. This has resulted in a more enjoyable and satisfying postgraduate experience and provides greater scope to forge strong friendships and networks through the degree.

Cost Despite the fact the JD degree is a postgraduate course, the cost of the course for domestic students is broadly the same as the average cost of a three-year Bachelor’s degree at UWA. A domestic student enrolling in the JD at UWA also obtains the benefits of a Commonwealth supported place.

Curriculum One of the benefits of introducing an entirely new professional law degree has been the opportunity to develop an evidence-based, innovative curriculum that is responsive to the changing expectations and demands that the legal profession has of law graduates. The development of the current JD course followed an extensive process of content and skills mapping, consultation, design, implementation, review, refinement and redesign, to create a cohesive, coordinated and progressive academic program. Of particular significance, was the recent restructure of the JD in 2017, which has seen the introduction of three two-week intensive core units at the start of each year of the degree: Foundations of Law and Lawyering (first year), Dispute Resolution (second year) and Commercial Practice (third year). Each of these skillsbased units is to be taught in the two 14 | BRIEF APRIL 2018

curriculum. Foundations of Law and Lawyering helps to establish a robust theoretical and skills-based scaffold for students which enables them to tackle the substantive core units that follow with more confidence. It also assists in building a stronger sense of cohort and in establishing effective and healthy study techniques in the first weeks of the course. Dispute Resolution focuses on inter-personal skills, self-reflection and management. Commercial Practice, which will be delivered in intensive mode for the first time in 2019, focuses on developing the skills students will need in legal practice, including the development of digital literacy skills.

Added to these structural changes, in 2018 the UWA Law School’s Indigenous Advisor is undertaking a project aimed at embedding Indigenous content and perspectives throughout the core program of the JD.

From a Faculty perspective it is encouraging to note that “Knowledge”, “Networks”, and “Fun” are as important, and in the case of “Knowledge”, even more important, to our new JD students than “Money”!

NOTES: 1

University of Western Australia. <http://www.study.uwa. edu.au/courses-and-careers> at 21 January 2018.

2

The benefits of the new courses structure are described as follows: ‘The model of broad undergraduate studies followed by a postgraduate professional qualification is designed to produce well-rounded graduates, as well as provide additional entry opportunities for a wider range of students. The new model will also remove the need for students to decide on a relatively narrow field of study straight from secondary school’.

3

R Johnstone and S Vignaendra, Learning Outcomes and Curriculum Development in Law: A Report Commissioned by the Australian Universities Teaching Committee (AUTC) (2003), 81.

4

See Australian Qualifications Framework < https://www. aqf.edu.au/sites/aqf/files/aqf-2nd-edition-january-2013. pdf> at 21 January 2018, 11.

5

It is beyond the scope of this paper to provide a detailed comparison between the levels of achievement required for AQF level 7 as compared with AQF level 9. However, a brief comment may provide some guidance. Pursuant to the Federal Government funded Learning and Teaching Academic Standards Project (‘LTAS’) academic standards (termed Threshold Learning Outcomes ‘TLOs’) for particular discipline areas, including Law, have been formulated. The six TLOs identified for Law are, broadly: knowledge; ethics and professional responsibility; thinking skills; research skills; communication and collaboration; and selfmanagement. The difference between AQF level 7 and AQF level 9 may be illustrated by comparing an aspect of the TLO for knowledge. Whereas graduates of the Bachelor of Laws will ‘demonstrate an understanding of a coherent body of knowledge that includes …’, graduates of the JD will ‘demonstrate an advanced and integrated understanding of a complex body of knowledge that includes …’.

6

While assured places into the JD are available to topperforming school-leavers, these students are required to maintain a minimum standard of performance through their undergraduate degree to retain their assured place.

Together with a range of innovative and forward thinking option units, such as The Global Lawyer and Legal APPtitude, this revised JD structure and curriculum will better prepare our JD students for the challenges and opportunities of their future career in law.

The final word- the student voice While it is clear that the UWA Law School is enthusiastic about its JD, it is pleasing to note that this enthusiasm is shared by our students. In an introductory workshop in Foundations of Law and Lawyering, groups of students are asked to identify

Murdoch Law School: Where Law comes to Life

By Sonia Walker Associate Dean Learning and Teaching, School of Law, Murdoch University

The Murdoch University Bachelor of Laws (LLB) equips students with skills that provide a solid foundation for legal practice. Integral to the Murdoch degree is an emphasis on practical skills that employers expect in graduates.

Legal skills are introduced and developed through the prescribed Priestley units and through additional compulsory units that are part of the Murdoch LLB curriculum.

Required skills such as legal problem solving, research skills, statutory and case analysis skills, communication skills and collaborative work are scaffolded through the core curriculum. This approach ensures that every student meets the requirements for legal practice and can work effectively as part of a team and individually. Students have the opportunity to build on these skills in our elective programme. This programme has a strong focus on practical skill development, particularly in the areas of human rights law, commercially relevant subject areas (from international trade to competitions law), mooting, clinical work and work integrated learning. In addition, the School encourages students to consider studying overseas to broaden their educational experience. The School offers a number of electives in programmes conducted in Switzerland and Italy, which also attract students from other Law Schools around the country.

Additional study opportunities in India and Germany (see below).

Clinical Legal Education The Clinical Legal Education program at Murdoch School of Law has an international reputation and is a national leader in both student education and client service. Since 1997, our Clinic, through its collaboration with SCALES Community Legal Centre, has placed students within a real legal practice,

offering legal advice and representation to clients that are marginalised or disadvantaged. It provides a unique opportunity for our students to develop their legal skills while gaining a deeper understanding of law in context. Students have the opportunity to work on a range of legal matters and learn and develop a broad range of professional skills, including interviewing, formulating advice, advocacy and representation. Some of the cases our students have been involved in include: •

A High Court case which became the precedent for safe third country issues in asylum law

•

Supreme Court action around the rights of juveniles while detained

•

A decision from the United Nations Human Rights Committee on the issue of torture

•

Numerous Parliamentary Enquiries at both a state and federal level

•

Reports and submissions to the United Nations, both the Committee system and the Special Rapporteurs.

Our clinic offers students an opportunity to explore the role of law in society, both in terms of what legal practice can achieve and appreciating its limitations.

The clinical experience enables students to develop a clear picture of the kind of legal practitioner they want to be, while giving them the skills to become that practitioner.

The Human Rights Law clinic is one particular aspect of Murdoch’s clinic programme that allows students to

extend their understanding and skills in this area of law, by allowing students to put their legal knowledge into practice as part of an active human rights practice.

Students interview clients, research and formulate advice, draft documents and assist the client before tribunals, courts and the United Nations under the close supervision of our lawyers and migration agents. Many students who have completed our specialist program in Human Rights Law in Geneva complete this clinic.

International Programmes (i) Human Rights Law (Geneva, Switzerland) An intensive program in Human Rights Law is taught each year by Murdoch in Geneva, the international hub for human rights and humanitarian law. Students study units in international human rights law with an emphasis on substantive and procedural human rights law and refugee law. The program is run by experts in international human rights who also have relevant practice experience.

The emphasis of the program is on practical engagement with international human rights law and the operation of the international human rights framework.

Integral to the program are visits to many of the UN’s key agencies, including: the United Nations, the Office of the High Commissioner for Human Rights, the International Committee of the Red Cross/Red Crescent, the International Labour Organisation, the International Commission of Jurists, the UN High Commissioner for Refugees and human rights NGOs. Students receive lectures and take part in workshops conducted by international experts based in Geneva, such as UN Special Rapporteurs, UN Human Rights Committee members

15

and international human rights lawyers.

Students have also had the opportunity to observe United Nations Human Rights Treaty bodies in session – such as the Committee on the Elimination of Discrimination of Women and the Committee on the Elimination of Racial Discrimination.

For students who are interested in pursuing a career in the international legal and diplomatic sectors, the program location provides solid exposure to networking and opportunities available in Geneva. Graduates of the programme have gone on to work or study in human rights law and undertaken internships in international human rights organisations. (ii) International Law and Comparative Law (Macerata, Italy) Murdoch students are able to broaden their knowledge of the law beyond the domestic sphere while enjoying the opportunity to study for part of their degree in Macerata, a medieval University town in central Italy. Students enrol in units on international and comparative commercially relevant subjects. The Comparative Law unit focusses on comparative private law, the unit on European Union Law concentrates on the constitutional structure of the EU and its common market and the International Trade Law unit deals with the WTO and free trade agreements. (iii) Foreign Trade and Customs Law (Germany) Students interested in free trade and the all important customs administration law that surrounds it have the opportunity to study these issues in units in Germany.

Students then then integrate our Macerata program offerings and bring this all together by undertaking an active work practicum in a large multinational corporation such as Price Waterhouse Coopers or Ernest & Young, or comparable placements organized by our partner University at Volkswagen, Airbus industries or similarly placed corporations who have specialised legal departments for customs administration. The academic components of the program are taught at the Ostfalia University of Applied Sciences based in Wolfenbüttel, a picturesque town in Northern Germany, located on the Oker River. (iv) Law, Business and Society (India) Students enrolled in the India Immersion Programme participate in seminars, lectures and field visits with leading Indian academics and professionals from a variety of industries. The course introduces students to India’s diverse regulatory, business and social 16 | BRIEF APRIL 2018

landscape. This is an initiative funded by the New Colombo programme in partnership with Murdoch University, Monash University, O.P. Jindal Global University and the Centre for India Australia Studies.

units focused on prestigious national and international competitions. In this way Murdoch’s Mooting programme supports our students to take part in national and international mooting competitions excelling in the toughest moot competitions around the world.

Professional Internships

Some recent examples of our mooting successes include:

Under the Murdoch Law School’s internship program senior Murdoch Law students take advantage of the diverse opportunities to integrate their legal knowledge into the workplace. There are a variety of workplace experiences open to Murdoch Law students, with internship opportunities organised locally, interstate and even internationally. Students can take up internships in various types of legal practice, including: large and small law firms, government agencies, community legal centres, Legal Aid, and international corporations. As interns, students earn academic credit while developing practical legal skills and building industry contacts. In addition to providing a practical learning opportunity for Murdoch Law students, the internship program also provides positive benefits for employers. Students bring new skills and enthusiasm to the organisation, while allowing employers to trial a potential work-ready recruit trained in office culture and procedure.

Mooting and Trial Advocacy One of the most popular ways students gain practical skills during the course of their LLB or graduate LLB degree is to participate in the Mooting program.

The Mooting program assists students to develop the practical skills in legal analysis, research, advocacy and team work that our students will need when they enter legal practice. Students are first introduced to mooting in Torts or Criminal Law in first year, as they move through their degree students have opportunities to participate in a range of local, national and international competitions.

Skills training (through seminars, workshops and competitions) is integral to our mooting program. In addition to the moots which the School regularly facilitates, the Mooting programme includes academic units which introduce students to the processes of mooting, followed by the Moot Court Bench (MCB). MCB students receive advanced advocacy training, engage with leading advocates through our MCB Coffee Hour Seminar series, and help coordinate a range of internal moot activities throughout the year. Senior and final year students can enrol in

•

2017 winner in the intervarsity WA Law Schools’ Australian Mining & Petroleum Lawyers Association (AMPLA) Mining Law moot;

•

2016 overall winner in mediation, best mediator and best client awards in the International Alternative Dispute Resolution (ADR) Mooting Competition;

•

2016 overall winning team in the Centenary International Arbitration (CiArb) mooting Competition.

Sitting alongside mooting, is our specialist Trial Advocacy unit which offers an intensive introduction the nature of the trial process. Working with members of the Perth legal profession students learn basic techniques of trial advocacy, including: identifying the case theory, opening and closing addresses, submissions on law and fact, proofing witnesses, examination, cross-examination and re-examination of witnesses, tender and proof of physical and documentary evidence.

We are committed to building on our recent success to ensure that we continue to offer our students the highest possible standard of legal advocacy education. Training for mooting and trial advocacy is frequently held in the state-of-the-art Herbert Smith Freehills Electronic Moot Court, The Herbert Smith Freehills Electronic Moot Court also educates students in the application of new technologies in the courtroom.

In addition to the practical skills training that is provided in the undergraduate LLB and graduate LLB, students have the opportunity to pursue graduate level training in the areas of and clinical legal practice and migration law and practice.

Graduate Certificate in Legal Practice The Graduate Certificate in Legal Practice course allows students to gain the practice experience necessary for admission to the legal profession.

Students are placed with the Clinical Legal Practice run in collaboration with SCALES Community Legal Centre in one-

on-one direct supervision by SCALES’ experienced solicitors. Students may work in any or all of SCALES’ diverse practice areas including: human rights, family or generalist law. Whilst enrolled at SCALES students are given the opportunity to undertake varied legal work including interviewing clients, legal research, formulating and giving advice as well as law reform and policy work.

The Graduate Certificate in Legal Practice is only available to students who have undertaken Clinical Legal Education units throughout their degree. This certificate is endorsed by the CEO of the College of Law. Murdoch is the only University in WA to offer these legal practice places through our partnership with the SCALES clinic.

required knowledge for individuals who seek to register as migration agents with the Office of the Migration Agents Registration Authority. It is a popular postgraduate course for those who have a law degree or who are in legal practice to gain expertise to practice in this challenging area of law. It is also a course open to people who do not have a law degree, who want to pursue an interest or develop expertise in migration law.

Replacing the Graduate Certificate with the GDAMLP allows for more flexibility in offering of the curriculum and enables us to tie in a capstone practice component which will involve students gaining professional skills to become a competent and ethical practitioner. Students choose from either: •

Graduate Diploma in Australian Migration Law and Practice The Graduate Diploma in Australian Migration Law and Practice (GDAMLP) is a new degree being offered from 2018. The Diploma replaces the Graduate Certificate course in Migration which has been run successfully at Murdoch University for the last 10 years. The GDAMLP is part of the

A clinical practice unit using the migration speciality already embedded in the clinical program in the School of Law; or

•

Work Integrated Learning (WIL) unit and place students in existing migration practice; or

•

A unit Professional Migration Practice which will offer a simulated practice environment

Participation in one of these units will engage students with the operation of the migration law system and will allow them to understand how the law impacts upon clients. Students in the WIL or clinical unit will have the opportunity to gain supervised work experience. This will allow students to acquire practical legal skills such as interviewing, research and preparing visa applications through hands on experience. This type of learning better ensures that students have a clear understanding of ethical practice relevant to this area of work.

In particular, those who enrol in the Migration Clinic will have the opportunity to appreciate the role of migration law and lawyers in a community legal context.

Many law students who have already been through our clinical programme provide extensive pro bono services in the area of migration and refugee law.

At Murdoch School of Law we are committed across our diverse programs to providing students at both undergraduate and graduate level with an extensive range of opportunities to develop practical skills that will allow them to become successful legal practitioners and life-long learners in Law.

Murdoch Law Builds on Community Engagement

At the same time, it has provided firsthand experience of the legal system for more than 1,000 law students. It has not only taught them legal skills, it has given them insight into how the legal system works and with that comes an understanding of the importance of access to justice. The

Law Clinic challenges Murdoch students to think about what role they could play in improving access to justice.

And it seems to be working, in a recent survey undertaken by Murdoch University, over 80% of law graduates doing pro bono work, link it to their experiences through the law clinic at Murdoch.

Now Murdoch has started a new initiative, designed to increase legal literacy and improve young people’s interaction with the legal system in all its forms. This initiative, called Law in the Community, trains Murdoch law students to go out into high schools and community groups to deliver classes and workshops dealing with

the law and the legal system. Murdoch students have dived into this new initiative and have already visited over 35 classes to improve the legal literacy of Western Australian young people.

When young people are given the tools to understand and interact with the legal system it provides a starting point for them to recognise and address access to justice issues in their own community.

By being part of this community engagement process, Murdoch students are able to form the foundations of the practitioners they want to become.

For more information, please visit our website http://www.murdoch.edu.au/School-of-Law/

CRICOS Provider Code 00125J SCH638 02/18

Last year Murdoch’s Law Clinic and its collaborator SCALES Community Legal Centre celebrated its 20th year of operation. This represents an enormous achievement in community engagement.

Over those years, the Murdoch Clinic has assisted more than 11,000 clients with their legal issues, from advice through to representation in courts and tribunals.

murdoch.edu.au

17

Introduction

Curtin Law School: Perth’s city based law school

By Professor Paul Fairall Foundation Dean of Law, Curtin University and Julian Sher Director of Professional Programs, Faculty of Business and Law, Curtin University

18 | BRIEF APRIL 2018

At the eastern end of Murray Street, between Irwin and Pier Streets, just outside the Perth central business district, stands a jewel of a building, opened in 1912.

This marvel of British imperial architecture, in the imposing Edwardian style, faced with delicately patterned Donnybrook stone, is known as 57 Murray Street. It is the campus of the recently established Curtin Law School. Curtin is the only law school based in the city.

57 Murray Street is situated in Perth’s legal precinct, with the sprawling medical complex of the Royal Perth Hospital to the east and the courts to the west. It shares a common boundary with the District Court of Western Australia.

The distinctive white prison trucks bearing their sad cargoes of prisoners are a common sight in this part of town. It is only a short walk to the David Malcolm Justice Centre, the State Administrative Tribunal and enticing caffeine-infused aromas from the Como Hotel foyer at the Old Treasury Building.

From inside the Law School, facing north across Murray Street, the mind’s eye can easily conjure up Perth’s streetscape before the wholesale demolition of picturesque and priceless colonial era

heritage buildings and their replacement with utilitarian and brutalist structures of the modern era.

This part of Murray Street has become something of a Curtin University precinct.

The Curtin Business School occupies the magnificent turreted four storied red brick edifice known as 78 Murray Street, bearing the legend “Government Printing Office”, diagonally across the road from the Law School. The Business School extends westwards to the intersection of Pier and Murray Streets. It will soon contain overflow from the burgeoning CLS. The intersections of Murray Street and Pier Street to the west and Murray Street and Irwin Street to the east, bookending the Law School precinct, speak volumes about the metamorphosis of Perth, from a small colonial outpost in the 19th and 20th centuries, into an international resources hub in the 21st.

The Perth CBD is now only dotted with architectural gems left over from another era, which most passers-by might only glimpse momentarily from a passing vehicle. The only local inhabitants who pay more than a passing glance to the buildings are the permanent residents of this part of town, who call the doorways and footpaths of Murray Street their home.

History The building at 57 Murray Street has had a remarkable life as one of Western Australia’s most important public buildings.1 According to the National Trust of Australia (WA), “(n)umerous government departments have occupied 57 Murray Street from 1912 to the 1990s.”2 These have included the Public Health and Medical Department and the Department of Native Administration.

This is the building once occupied by A.O. Neville, the Chief Protector of Aborigines, during the period 1922 until 1945. A.O. Neville enforced key government policies aimed at the absorption, assimilation and forced removal of Aboriginal children from their families.

A poignant irony is that A.O. Neville’s office in the building is now occupied by the Western Australian Stolen Generations Alliance. Throughout the building there are graphic reminders of its history, as a tuberculosis clinic and a medical dissection centre, as well as its more infamous role in the systematic oppression of Aboriginal people.

Eventually, in 2012-2013, more than a century after the doors first opened at 57 Murray Street, the National Trust (WA) spent significant sums to conserve the building. It was at about this time, that Curtin University sought the establishment of a law school located in the City of Perth.

A law school at Curtin – the vision In 2012 the University Council took the somewhat belated decision3 to offer law as a discipline. At that time Curtin University was the only university in Western Australia not to offer law, and one of the few universities in Australia

not to do so.4 A long serving law dean, Professor Paul Fairall, was appointed as Foundation Dean of Law.5 Assisted

by Associate Professor Chris Finn, Professor Fairall set about the urgent task of obtaining approval for a law degree, recruiting the foundation staff, preparing for the first intake of students, and last but not least finding accommodation for the new school. On 14 September 2012, the Curtin Bachelor of Laws degree was approved by the Legal Practice Board, and the first law lecture was delivered in March 2013. Within a short time the School had amassed a formidable foundation team with the appointment of Professors Gabriel Moens and Phil Evans from Murdoch University, Professor Gerard Carney from the University of Queensland, and with Professor Dale Pinto in charge of the Tax Department.

Chief Justice Wayne Martin AC kindly agreed to chair a new high powered advisory board drawing together leaders from the legal profession, government, and business.

Professor Fairall and his team envisaged a city-based law school where a true partnership between the profession and the law school could develop, thus improving the quality and relevance of a university-based law degree. Academic and clinical programs would be at the heart of this undergraduate educational experience. Crucially, the notion was that a city location would facilitate close interactions between students and the profession as a whole.

The new law school was designed around four pillars: (a) a principally trimester based undergraduate6 program available to school leavers; (b) an extensive suite of clinical programs; (c) a professional training program satisfying postgraduate admission requirements; and (d) a co-located but independent barristers' chambers. Such a Law School had the greatest chance of success if based in the city. A metropolitan law school would be more readily accessible to busy practitioners and judicial officers.

The establishment of a clinic and a co-located but independent barristers’ chambers would provide a setting within which students, academics and members of the profession could interact in a natural way. The appointment of an experienced practitioner as Director of Professional Programs would ensure that the melding together of academic and practitioner focused programs would be informed by professional experience.

The notion of a city law school reflected the ‘industry-connectedness’ ethos of Curtin University. A singular advantage of a city HQ was accessibility to the large

and willing reservoir of legal professional experience in the Perth CBD. In 2013 Christian Porter7 was appointed as a professor as the first Director of Professional Programs. He set about writing the Business Case to implement this vision. The overall Plan was endorsed by the Senior Management Group of the University later that year. In 2014 the Law School moved into its new home at 57 Murray Street.

Curtin Law School – Academic Program CLS now has almost 300 full time law students,8 and more than a thousand students doing business law as part of a commerce degree.9 The CLS has already produced 70 Law graduates. Numbers are steadily growing and Curtin has a substantial share of first and all school leaver preferences. While the original conception of the law degree was to focus upon mining, compliance and the resources sector generally, the degree may now properly be described as generalist, satisfying with ease the core requirements of the Priestley 11. Almost half of Curtin law students undertake combined degrees, with commerce and arts being the most popular. In 2017 CLS introduced a combined degree with psychology. In 2017 CLS also admitted its inaugural cohort of six honours students, doing a full year honours program.

Professional Programs – Office of DPP The Office of the Director of Professional Programs is charged with the important task of managing the creation and introduction of clinical programs. A vital part of the Director’s role has been to foster engagement with members of the legal profession and the judiciary and to engender their active support for clinical programs. In 2016 Julian Sher was appointed as Director of Professional Programs. Julian is a former national firm office managing partner. Under his leadership the CLS has developed a dynamic speaker series on issues of relevance to the profession, and work continues on the expansion of the Clinic, and the new PLT program.

John Curtin Law Clinic In 2016 the CLS appointed Rosaline Tan, a senior practitioner, as Principal Lawyer of the new John Curtin Law Clinic for Small Business. The Law Clinic was the culmination of a partnership between CLS and the Small Business Development Corporation of Western Australia, which

19

was first entered into in 2013. CLS’s inaugural clinic course, known as the Law Clinic, commenced in February 2017, with the enrolment of its first batch of law students.

Law Clinic students participate in weekly workshops under the leadership of experienced practitioners. They receive induction training at the commencement of the course, which introduces them to the use of specialised legal software, document and file management and time recording. They are also introduced to client interviewing techniques. Students meet small business clients and take instructions at the initial interview.

They then discuss the instructions with their supervising practitioner, for the purposes of delivering advice. Although the Law Clinic does not yet have the resources to supply clients with litigation representation on a regular basis, it has occasionally been able to rely on the generosity of experienced practitioners in this respect. In the longer term it is envisaged that the Law Clinic will expand in size and numbers of locations. Ideally, the notion is for all Curtin law students to be able to participate in this clinical experience.

Professional Legal Training CLS appointed two senior practitioners, Lisa Abbott and Rachel Webber, to develop course materials for a new course on Professional Legal Training (PLT).

The Curtin PLT program will combine online teaching with modules of faceto-face contact sessions in the city. The emphasis will be on delivering a quality practical educational experience relevant to Western Australian legal practice and local conditions. Course planning is welladvanced, and it is expected that course materials will be submitted to the Legal Practice Board for consideration during 2018.

Barristers’ Chambers In February 2017 Chris Shanahan SC, Linda Black and Stuart Shepherd took up residence in Chambers at 57 Murray Street, and the Chambers were appropriately named Murray Chambers.

The new Chambers were officially opened by the Honourable Michael Murray, former justice of the Supreme Court of Western Australia, on 28 April 2017. In December 2017 it was announced that Raelene Webb QC would join the Chambers as a fourth member, having retired from the presidency of the Australian Native Title Tribunal. The membership of Murray Chambers is likely to expand as a result of considerable interest from the profession.

The idea of deep collaboration with the Law School to benefit law students is one 20 | BRIEF APRIL 2018

that hopefully will resonate with members of the Bar.

Conclusion Place is important. Curtin’s intention is for this jewel of a building to be the catalyst for something special to happen, enhancing the educational experience of students, by making possible the enormous benefit they will receive from interacting on a daily basis with busy practitioners, informally and on structured clinical programs.

Placing the state’s newest law school in an old building might seem odd, or even idiosyncratic or backward-looking. The building is too small to provide a permanent home for a growing law school, and in due course other facilities will be required. But for the moment, the building is something of a symbol, melding the old ways with state-of-the-art teaching facilities. The discipline of law is firmly grounded in tradition, but equally, it is responsive to change, whether technologically, or in the evolution of the law itself.

In planning the new Curtin Law School it was obvious from the outset that the pace of change was unrelenting in the practice of law, that the legal profession was deeply affected by these changes, and that law schools needed to prepare students for what lay ahead.10 57 Murray Street symbolises an approach that combines the best of the old with the challenges of the present; producing we hope an adaptable and responsive law school, more than capable of remaining relevant to our students and to the legal system more broadly. We do not underestimate the challenges facing all law schools and especially graduates entering the legal profession for the first time. Bracketing all that we do is a commitment to academic excellence as the criterion for the delivery of a core legal education.

An objective assessment is that, judged by student demand and feedback, CLS has exceeded all expectations in these first five years. The true test will come in the extent to which the profession chooses to buy into the vision underpinning the CLS. If present indicators are anything to go by, all members of the profession, whether academics, practitioners or judicial

officers, can be confident about the future of this remarkable new law school.

NOTES: 1

For a detailed history building see the National Trust of Australia (WA) website accessed at https://www. nationaltrust.org.au/wp-content/uploads/2015/09/20141 124MurrayStreet.pdf on 13 November 2017.

2

Above, n1.

3

Belated in the sense that Curtin was one of the last of the 38 Australian universities to offer law.

4

The School of Business Law and Taxation offered a suite of business law and taxation courses for commerce students but the university did not offer training programs for lawyers. BLT was subsequently absorbed into the CLS.

5

Foundation Dean of Law at the University of South Australia (2007-2011); Dean of Law at the University of Adelaide (2002-2009); Dean of Law at James Cook University (1995-2001) and Chair of Academic Board (1999-2000); a former Chair of the Council of Australian Law Deans and a director of the Australian Academy of Law.

6

The Law School rejected the Juris Doctor degree as a pre-admission qualification, believing that this would limit choice for undergraduates and impose an additional cost burden for limited educational gain. It is possible for students to complete the LLB in three years in a standard study pattern.

7

Presently the Honourable Christian Porter, federal Attorney-General. Porter had previously served as state Attorney-General and Treasurer and resigned in order to contest a federal seat. During this short hiatus from politics, he served as professor at the new CLS.

8

Including undergraduates undertaking combined degrees, namely, Business/Law, Accounting /Law, Finance/Law, Arts/Law, Psychology/Law etc.

9

See Carolyn Evans, ‘The changing environment in the legal profession and legal education: The best of the old world and the new’ (2016) 90 ALJ 427

UNDA Law School: Educating a different type of lawyer

By Associate Professor Jane Power Director, Professional Legal Education, University of Notre Dame Australia Law School

The 20th anniversary event of the UNDA Law School in November 2017, provided the School an opportunity to reflect on what it had achieved in its short history and on how it equips its law students with the practical skills that will enable them to be admitted to practice and find legal jobs. The reflection confirmed what had been planned before the Law School’s commencement – that UNDA Law School is ‘different’.

The UNDA Law School was the third law school in Western Australia. When the Hon Neville Owen was asked at the time whether there was a need for a third law school, he responded If you think it exists merely to turn out recruits for the practising profession, the answer is probably, no. But if you look at it as a place where lawyers can be trained in a slightly different way and you see the Law as both a preparation for entry into the practising profession and a general education with wider importance for the good of society, then the answer is yes… The ‘difference’ to which I have referred stems from a

belief that the professions and other callings for which a legal training is desirable should have among their number, members who have been exposed to a different kind of University education. It is one built on the 2000 year old Catholic Intellectual Tradition.1 The Law School’s model, built on the Catholic Intellectual Tradition, is: Values based - the School sees a commitment to social justice, professional ethics and community service as the very foundation of the practice of law. This trinity of values is deeply embedded in the curriculum, and its mode of delivery. In addition

to their legal studies, students are required to undertake core units in Theology, Philosophy and Ethics.

Student centred - the School is committed to serving the needs of each student as an individual person.

This is reflected, amongst other ways, in our method of choosing students (which is not simply based on ATAR but on a personal interview and other indicators of potential as well), the smallness of our class sizes, the interactive nature of our teaching, and the accessibility and dedication of our staff.

Practically oriented - the School aims to produce well rounded legal professionals, capable of solving, in a timely and efficient manner, the myriad of problems that may be faced by their clients in today’s world.

Legal skills are emphasised. Though a number of our graduates may ultimately decide to seek employment outside the legal profession, they will 21

find that the knowledge and skills acquired at UNDA will stand them in good stead for the rest of their working lives.2 This approach is reflected in the curricula that focuses on critical thinking, research, communication, social justice and the integration of theory and practice. The degrees contain more compulsory units than other law schools including: Legal History (for undergraduate entry students) – so students appreciate the origins and context of the current law to better understand why it is law and/or why the law needs to change; Ethics and the Law – a first year level unit introducing students to the Western Philosophical Tradition and relating that tradition to the practice of law; Advocacy – to ensure students are equipped with the skills to persuade their clients, opposition and the courts; Alternative Dispute Resolution – so students are equipped to communicate effectively with clients, and colleagues in a non-adversarial approach and ensuring justice; Remedies – “when taught towards the end of a law course, it brings together, and gives meaning to, the disparate strands of black letter disciplines such as Contract, Torts and Property and the ameliorating presence of Equity;”3 Legal philosophy – “because law requires a logical approach to problem solving and the method of logical thinking is not necessarily innate”.4

22 | BRIEF APRIL 2018

The integration of theory and practice is not left solely to assessment tasks, though these include mock trials and mediations, compiling case files, drafting court documents and client advices. Academics also adopt different approaches to learning. For example in Legal Philosophy the legal theories are not just taught, they are applied to develop persuasive arguments. Many assessment pieces are based on real life practice scenarios adapted by practitioner lecturers, introducing reality to learning. Problem Based Learning (PBL) is practiced in several units including Advocacy and Mental Health Law and within the School’s Legal Clinic. The Advocacy exam is an oral presentation of a Moot; Mental Health Law and Trial Advocacy students complete the unit content and most, if not all, of the assessment in a week, working on real scenarios and mirroring the pressures of practice.

Students are exposed to social justice issues in a variety of ways including unit content, volunteering opportunities in community legal centres and within campus clubs and events. The most practical aspect of social justice is reflected in their compulsory service learning component within the Ethics and the Law unit where students are required to complete a minimum of 20 hours working with a marginalised group in society. They must then complete a written reflection on how the law is or is not assisting the marginalised group with whom they are working and the role of the legal profession in the plight of those who cannot access justice.

The School’s present and future direction, ensuring graduates are prepared for practice, are overseen by an Advisory Board consisting of past and current judicial officers and senior members of the Bar and profession, which include alumni. It has played an integral part in directing the School throughout its formative years.

The Quality Indicators for Learning & Teaching (QILT) compiled by the Federal Government annually, recorded our Law School as first in Australia for overall quality of educational experience, learner engagement and skills development. It ranked number 1 in Western Australia for student support, overall graduate employment and overall graduate satisfaction,5 evidence that the School equips its graduates with the practical skills that will enable them to be admitted to practice and find legal jobs.

NOTES: 1

Hon Neville Owen, ‘An Address to Mark the 20th Anniversary of the Foundation of the Law School’, (speech delivered at the 20th Anniversary event of the UNDA Law School, University of Notre Dame Australia Fremantle, 8 November 2017). The Hon Neville Owen was instrumental in the planning phases of the Law School prior to 1997 and is a founding member of the School’s Advisory Board.

2

University of Notre Dame Australia, A Unique Style of Education < http://www.nd.edu.au/fremantle/schools/ law/objects.shtml>.

3

Hon Neville Owen, above n2.

4

Ibid.

5

Quality Indicators for Learning and Teaching, Home, <qilt.edu.au>.

Law Week Special

CPD Day for Country Practitioners Friday, 18 May 2018 7.40am to 4.00pm The Law Society of Western Australia, Level 5, 160 St Georges Terrace, Perth The Law Society welcomes country practitioners to Perth for a combination of professional learning and networking, culminating in a fun night of socialising and celebrations to close Law Week.

Special hotel rates have been arranged with the Parmelia Hilton Hotel to make the experience easy and more accessible. $185 for Law Week CPD Day registrants. Valid for Thursday 17 and Friday 18 May 2018. Offer is available only until the 3rd May 2018.

This event provides the following: • 6 points across all 4 CPD competencies • Includes 2 Law Mutual (WA) Risk Management points Topics for the Day: • Issues Impacting Practitioners in Regional, Rural and Remote Western Australia • Introduction to Practice and Matter Management Guidelines • Contemporary Issues for Today’s Lawyer • Cybersecurity and Privacy • Inclusion and the Law

FREE

Law Society Country Members

Confirmed presenters include: • The Hon Wayne Martin AC, Chief Justice of Western Australia • Morry Bailes, President, Law Council of Australia • Kirsten Stringer, Convenor, Country Practitioners Committee, Law Society of Western Australia • Philippa Rezos, Law Complaints Officer, Legal Profession Complaints Committee • Hugh Cahill, Principal, Cullen Macleod Lawyers • Vicki Coles, Manager – Risk, Law Mutual • Cameron Hay, Risk Management Consultant, MYR • Dr Ambelin Kwaymullina, Lecturer, Law School, The University of Western Australia • Associate Professor Mike Johnstone, ECU Security Research Institute

$150

Including GST Country Non-Members of the Law Society

Registration also includes attendance at the Law Week Awards Night and Cocktail Evening 5.30pm Friday 18 May. To register go to lawsocietywa.asn.au/cpd

23

School of

Business & Law

Preparing students for effective law practice and future career success

By Associate Professor Denise Jackson Work-Integrated Learning (WIL) Coordinator in the School of Business and Law, Edith Cowan University and Krishna Prasad Associate Dean Law, Edith Cowan University

Introduction Enhancing student employability is now a strategic directive for most higher education institutions and applicable to all disciplines. Increasingly, universities are considering ways they can help prepare and empower their students to achieve career success. Perceptions of success vary by discipline yet in law, this typically means being admitted to practice and securing a role in the legal sector or obtaining a career related to law.

Unfortunately, there has been a notable fall in the national full-time employment of graduates of Law and Justice Studies from 41.2% in 2008 to 27.8% in 20141. Of equal concern, there is rising underemployment among graduates six months’ post-course completion, attributed to an oversupply from rising enrolments1.

The contemporary model of student employability is multifaceted, with dimensions including disciplinary expertise (legal knowledge), non-technical skills (for example, collaboration, communication, problem-solving and critical-thinking skills), career selfmanagement and professional identity development2,3. Edith Cowan University is continuously seeking ways to develop

24 | BRIEF APRIL 2018

these different capabilities in its Law students to empower them to achieve their career aspirations and meet the expectations of legal practitioners. Some interventions intended to develop student employability may be embedded within the curriculum while others may be cocurricular or extra-curricular in nature.

These, therefore, rely on proactivity among students to engage in such initiatives. Further, many of the strategies designed to develop highly capable Law graduates rely on the engagement of legal practitioners who assume the role of mentors and supervisors in projectbased learning, internships and other collaborative initiatives.

This article discusses what is meant by a ‘capable’ Law graduate, that being an individual who is suitably prepared for practice and able to attain a graduatelevel role in the legal field. Interventions in the ECU School of Business and Law designed to enhance student employability are presented. This is followed by a discussion of both external and individual background factors that may influence a student’s ability – irrelevant of their capability levels – to secure employment in legal practice.

The meaning of a ‘capable’ law graduate In accordance with human capital theory4, certain non-technical skills are deemed critical for all graduates – in particular, communication, collaboration, critical thinking and problem-solving5. For Law graduates, all of these skills are important.

In addition to these skills, disciplinaryspecific knowledge – understanding of relevant legislation, researching cases and materials and legal analysis – are also highly regarded by graduate employers.

In combination, these skills enable a graduate to function effectively in the workplace and are of growing importance as new workers pursue portfolio careers and operate across a range of different sectors and industries6. Developing the skills which enable them to interact with clients, co-workers and management, and which they can adapt to different working contexts within their chosen job cluster7, are important not only for individual but organisational success.

It is important to acknowledge, however, that employability extends far beyond equipping students with skills which they ‘possess’8. Employability also spans career self-management9, having the ability to understand and articulate one’s career aspirations and identify suitable career pathways to achieve them. Indeed, in a contemporary working environment defined by horizontal career progression, casual and part-time working, high levels of mobility and multiple job roles over one’s lifetime10, the ability to self-manage one’s career is increasingly important.

Law graduates may no longer aspire to achieving a place in an unpaid internship program but in fact aim to secure paid

employment. Being able to network with established lawyers is critical for enabling graduates to access the hidden job market and may be more difficult for students who are first-in-family to attend university or who are international students, both perhaps lacking access to established professional networks.

Professional identity is another important facet of student employability. Employers may assume that new graduates have a clear understanding of the code of conduct relevant to their own profession. This includes an awareness of values, culture and norms and the self-awareness to compare and evaluate their profession’s ideology with their own. Research suggests that new graduates are typically at the ‘following stage’11, ‘copying’ and being ‘defined by’ seasoned professionals until they develop the confidence and know-how to assert their own values and knowledge in the workplace. Progressing to this stage, referred to as self-authorship11, can be unsettling and is often a process which requires careful support and mentorship.

There has been increasing attention to how universities can assist students in understanding and connecting with their profession; empowering them to assert their own knowledge rather than being constrained by that imposed by others; as well as developing self-awareness of their own values and if and how these align with those of their targeted profession8,12.

Interventions to develop capable graduate lawyers The ECU School of Business and Law has invested considerable effort and resources in developing a Work-

Integrated Learning (WIL) program with the specific intent of enhancing student employability. WIL is where students engage with industry and community partners for the purposes of learning and assessment and as a formal component of their degree program. While many think of WIL in the traditional sense - such as internships, practicums and work placements - there is growing momentum for more innovative models which include simulation, project-based learning, role play and incubators. The growth of WIL in Australia has been catalysed by the National Strategy on WIL13 which was developed to “target barriers, boost enablers and expand opportunities to partner in WIL from the perspectives of universities, employers and students”13.

WIL differs from students gaining work experience through extra-curricular activities as it incorporates a rigorous program of reflection, feedback and performance evaluation through learning and assessment activities14.

In the School, Law students are encouraged to apply for participation in the ECU Work Placement program which involves students undertaking 100 to 150 hours of placement-based WIL in the legal field. This may involve gaining experience at a legal practice, not-forprofit organisation, professional body, or experiencing business law within a private sector organisation. The program is not limited to the academic elite and encourages all students who demonstrate a sound work ethic and a keen attitude for learning to participate. Applicants not only enhance their non-technical skills and discipline-specific knowledge, both widely acknowledged as key outcomes of WIL15, but also fine-tune their career self-

25

management skills.

Recruitment into the WIL program involves participating in a resume workshop and assessment centre style workshop, both led by the ECU Careers and Leadership Service. Attendees work in small groups to demonstrate and further develop their collaboration, communication and problem-solving skills, in addition to completing a brief oral presentation and video interview.

The workshops are structured to gather key information on each candidate to facilitate a smooth matching process to a suitable WIL opportunity, in addition to introducing students to recruitment and selection techniques common to many graduate roles. Finally, students get to practice their interview skills with industry partners to ensure cultural fit for their work placement.

In regard to more innovative forms of WIL, the School operates a Moot Court which gives the students valuable opportunity to practice and refine their written and advocacy skills. In addition the students are able to undertake and study the Community Legal Practice unit. The unit is best suited for Law students in their final or penultimate year of law studies where under the supervision of qualified legal practitioners, students will assist in the delivery of legal services. This allows students to apply much of the theoretical knowledge acquired in other law units and provides them with the opportunity to learn and experience firsthand many of the generic skills necessary for the responsible and successful practice of the law. These include including interviewing skills and problem solving, legal research and analysis, file management, oral and written communication skills and the use of information technology. Students will also learn about the practical and ethical aspects of giving legal advice including management of client expectations and confidentiality, and will be encouraged to reflect upon the adequacy of the law within a social context. Reflecting the School’s commitment to social justice, the unit is conducted in association with the Northern Suburbs Community Legal Centre (Inc), which is committed to developing and maintaining a quality legal service that ensues access and equality to the community in the northern suburbs of Perth in the areas of family law, tenant advocacy, elder abuse and criminal law.

Professional identity development is a key focus within the ECU Law programs with interventions designed to expose students to legal practitioners and develop their professional networks. In addition to WIL, the School hosts a range of guest speakers from the profession 26 | BRIEF APRIL 2018

and industry.

External influences Despite the efforts of ECU, and no doubt other Law schools, in preparing its students for future practice, there are intervening factors which confound their impact. First, external factors may blur the relationship between employability and graduate-level employment, which is by no means straightforward16. While a Law student may participate in all the opportunities available within their School to enhance their employability, it does not necessarily mean they will be successful in securing employment. Reasons include a current oversupply of graduates1 which continues to cause rising unemployment and underemployment in other professions. Other important influences on employment outcomes are geographical location, family situation and material resources2.

Second, there can be a mismatch between employability and employment due to graduate recruitment processes which are not entirely merit-based.

Social capital may influence individual employment outcomes whereby more privileged students with access to richer networks or those attending higher status institutions achieve superior outcomes17.

Cultural capital can also influence employment outcomes as marginalised groups are less able to ‘speak the language’ of the graduate employer18.

their first full-time job).21 Proactive initiatives negotiated by School of Business and Law with established industry partners both within Australia and overseas, have enabled ECU students to not only gain valuable experience and scholarships during their undergraduate studies, but also secure an edge over other prospective employees in embarking on their chosen careers.

NOTES: 1

Karmel T and D Carroll, Has the graduate labour market been swamped? Adelaide: National Institute of Labour Studies, Flinders University, 2016.

2

Guilbert L., J Bernaud, B Gouvernet and J Rossier, Employability: review and research prospects.

International Journal for Educational and Vocational Guidance 2016, Vol. 16 No. 1, p. 69-89.

3

Jackson D. Re-conceptualising graduate employability: the importance of pre-professional identity. Higher Education Research & Development 2016, Vol. 35 No. 5, p. 925-939.

4

Becker G. Human capital: A theoretical and empirical analysis, with special reference to education. Chicago: University of Chicago Press, 1964.

5

Graduate Careers Australia The report of the 2015 Graduate Outlook Survey. Melbourne, VIC: GCA, 2016.

6

Foundation for Young Australians. The new work order: Ensuring young Australians have the skills and experience for the jobs of the future, not the past.

Melbourne: FYA, 2015.

7

Foundation for Young Australians. The new work mindset: 7 new job clusters to help young people to navigate the new work order. FYA, Melbourne, 2016.

8

Holmes L. Competing perspectives on graduate employability: possession, position or process? Studies in Higher Education 2013, Vol. 38 No. 4, p. 538-554.

9

Bridgstock R. The graduate attributes we’ve overlooked.

Higher Education Research and Development 2009, Vol. 28 No. 1, p. 31–44.

10

McCrindle. Social analysis. Sydney: McCrindle, 2015.

11

Baxter Magolda M. Developing Self-Authorship in Young Adult Life. Journal of College Student Development 1998, Vol. 39 No. 2, p. 143-56.

12

Trede F, Macklin R and Bridges D. Professional identity development: A review of the Higher Education literature. Studies in Higher Education 2012, Vol. 37 No. 3, p. 365-384.

13

Universities Australia, BCA, ACCI, AIG, & ACEN. National strategy on Work Integrated Learning in university education. Canberra: Universities Australia, 2015.

14

Billett S. Curriculum and pedagogical bases for effectively integrating practice-based experiences.

Strawberry Hills, NSW: Australian Learning and Teaching Council, 2011.

15

Smith C, Ferns S, Russell L and Cretchley P. The impact of work integrated learning on student work-readiness.

Canberra, ACT: Office of Learning and Teaching, 2014.

16

Wilton N. Do employability skills really matter in the UK graduate labour market? The case of business and management graduates. Work Employment Society 2011, Vol. 25 No. 1, p. 85–100.

17

Clarke M Rethinking graduate employability: the role of capital, individual attributes and context. Studies in Higher Education 2017 DOI: 10.1080/03075079.2017.1294152

18

Tomlinson M. Introduction: Graduate Employability in Context: Charting a Complex, Contested and Multi-Faceted Policy and Research Field. In Graduate Employability in Context, edited by M. Tomlinson, and L. Holmes, 1-40. London: Palgrave Macmillan, 2017.

19

Quality Indicators for Learning and Teaching (QILT).

Retrieved from https://www.qilt.edu.au/my-shortlist/ compare-institutions.

20

The Good Universities Guide 2018. Retrieved from https://www.gooduniversitiesguide.com.au/universityratings-rankings

21

The Good Universities Guide 2018. Retrieved from https://www.gooduniversitiesguide.com.au/universityratings-rankings

Conclusion ECU and School of Business and Law has implemented significant interventions to help prepare its students to achieve career success.

The concerted initiatives of the School of Business and Law is evidenced by excellent ratings for student satisfaction and teaching quality. ECU was ranked first among all Australian public universities in terms of student satisfaction and teaching quality (including learning resources, student support and skills development), by the Australian Government’s Quality Indicators for Learning and Teaching (QILT) in 201719. ECU has achieved a 5-star rating for teaching quality for 11 consecutive years and is one of just two Australian public universities – and the only university in Western Australia to receive this significant recognition for high quality teaching from its students)20.

These combined initiatives have given ECU graduates a 5-star rating in 2018 for median salary (starting salary for new domestic graduates under age 25, and in

Dominance and Deterrence This article was adapted from a paper presented at a Law Society CPD seminar held on Wednesday, 8 November 2017

Introduction This article introduces the recently enacted amendments to the Competition and Consumer Act 2010 (Cth) (Act) which effect changes to section 46, the provision dealing with “misuse of market power”. That is one of the provisions in Part IV of the Act, which contains the specific prohibitions against anticompetitive conduct, other than cartel conduct and is a provision subject to considerable review and reform since its first enactment.

The purpose of Part IV was succinctly summarised by Gordon J in Air New Zealand Ltd v Australian Competition and Consumer Commission; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission:1 Part IV of the TPA2 broadly manifests legislative concern with injury to competition by practices apt to keep up prices. And, accordingly, Pt IV of the TPA proscribes various practices in respect of pricing which merit the label “restrictive” in the heading for Pt IV, and one might add, for completeness, practices which restrict output, the natural

and probable consequence of which is at least the maintenance of, if not an increase in, price.

Those are practices which are conventionally associated with monopoly or monopolistic behaviour, (and Air New Zealand was of course a cartel case).

All competition regulation is, ultimately, about monopoly or the tendency to exercise monopoly, regulation intending by one means or another to ward off the risks warned of by Adam Smith at the end of Book One of the Wealth of Nations: The interest of the dealers, however, in any particular branch of trade or manufacture, is always in some respects different from, and even opposite to, that of the public. To widen the market and to narrow the competition, is always the interest of the dealers. To widen the market may frequently be agreeable enough to the interest of the public; but to narrow the competition must always be against it, and can serve only to enable the dealers, by raising their profits above what they naturally would be, to levy, for their own benefit, an absurd tax upon the rest of their fellow-citizens.3

By Paul D Evans Partner, Quinn Emanuel Urquhart & Sullivan Adjunct Professor, Murdoch University Law School

27

So much is trite. But how you go about the practical regulation of such practices has vexed many minds, and perhaps more Government enquiries, over nearly 50 years. Most recently it vexed the Harper Committee,4 the report of which recommended some significant changes to the regulatory principles and practices underpinning Australian competition law and relevantly for current purposes, further and quite significant changes to section 46.

Those changes, to the extent that the government has accepted them (which is almost entirely), have now passed the Parliament and came into effect in November 2017.

One could not fairly say that the changes proposed by the Harper Committee to section 46 of the Act were or are necessarily the most controversial proposals to reform the national competition law. But section 46 is, likely, the most storied singular provision of the Act. That is evident in the number of decisions of appellate courts, including the High Court, examining the various iterations of the provision, the number of amendments it has suffered over the years, and the number of occasions on which applicants have failed to successfully invoke it.

Section 46 in operation Section 46 focusses on the competitive activities of incumbents but, critically, incumbents which have existing market power in a relevant market, and seeks to regulate the way in which those incumbents compete.

In principle, section 46, (as it has existed to date), has been a provision about unilateral predatory purpose, regardless of effect (though, inevitably, an effect that manifested successful predation might sustain an inference as to the purpose of predation).

The provision until its recent amendment, was clear in its statement of principle: •

a corporation must possess substantial power in a market; and

•

it must then “take advantage of” (that is in some way use) that power for one of three proscribed purposes which look to a reduction of competition in a market by conduct against a competitor.

It is that which made purpose important, as the very premise of competition policy, generally, is to promote vigorous (even violent) competition between competitors with a clear consequence – the elimination of competitors is an inevitable 28 | BRIEF APRIL 2018

and even desired consequence of that vigorous competition provided that the process of competition continues.

But section 46 has not, to date regulated the mere consequence of an effect on a competitor because of vigorous competition. Were that to be the protection extended by section 46, it would be a protection of competitors, not of the process of competition itself.

Conceptually, and consistently with the balance of the provisions of Part IV of the Act, conduct can only be wrongful if it actually affects the process of competition, not simply a competitor.

In the framing of section 46 the purpose of harming a competitor (or competitors) is only wrongful because of its conjunction with the protection or extension of existing market power.

A series of cases, over a lengthy period of time, exposed the difficulties of attempting to regulate conduct which transcends the ill-defined line between aggressive competition, and misuse of market power or predatory behaviour, dependent upon a notion of the “use” of existing market power.

Courts have struggled with the inherent tension created by section 46 for many years. As Deane J observed nearly 30 years ago in the very first case to reach the High Court on section 46: The difficulty in determining what conduct constitutes taking advantage of market power and what conduct does not, stems inevitably from the need to distinguish between monopolistic practices, which are prohibited, and vigorous competition, which is not. Both here and in the United States the search continues for a satisfactory basis upon which to make the distinction. For the most part, all that emerges are synonyms which are not particularly helpful.

Words such as “normal methods of industrial development”, “honestly industrial”, “anti-competitive”, “predatory” or “exclusionary conduct” merely beg the question. …Nor is it helpful to categorize conduct, as has been done, by determining whether it is the exercise of some contractual or other right… The fact that action is taken pursuant to the terms of a contract has no necessary bearing upon whether it is the exercise of market power in contravention of s.46.5 The central concept of substantiality used in section 46 has been construed differently to the term “substantial” used in conjunction with “lessening of

competition” in the substantial lessening of competition (SLC) test applicable in sections 45, 47 and 50. From the cases it is clear that “substantial” in this context does not amount to monopoly power (as the Act was amended in 1986 to lower the threshold).6 In the section 46 context, “substantial” means large or weighty, or considerable, although it has been said to be the subject of “inconclusive debate”.7 As an adjective, “substantial” applies to “market power” and it has been clear for some time that is a distinct concept: it means the ability to behave in a market in a manner which is not constrained by competitors in that market for a sustained period. This may be indicated by the ability to raise prices over the minimum efficient cost of production (in a perfect market) and to sustain that price raise for a period of time without losing sales so as to derive supernormal profits.8 Substantial market power is not financial power, although financial power may sustain another indicator of market power – the ability to engage in predatory pricing over a sustained period. In predatory pricing, a competitor charges below its costs of production, and therefore incurs a loss, in order to damage a competitor or suppress rivalry.9 An alleged transgressor must already have some advantage in the market apart from financial strength, under section 46 as it existed, in order to have market power. That might be because it is protected by barriers to entry into the market (regulation, a large advantage in sunk capital from earlier capital investments, strategic landholdings, contractual arrangements for inputs, and for the distribution of its products, which

are difficult for a competitor to replicate (though those may in turn raise questions under section 45 or 50). Each of those can create advantages which amount to market power. The mere fact, however, that economic circumstances make it unattractive, irrational or even impossible for a new entrant to enter the market is not a barrier to entry.10 Often, barriers to entry involve a mismatch between the construct of theoretical economics and the reality of behavioural economics – customer loyalty, for example, is often an irrational response to perceived relationships of value, prestige or convenience.

But market share itself is not, in economic terms, market power, as aggressive rivalry between large firms in concentrated markets demonstrates (see, for example, the conclusions of the ACCC and its grocery retailing enquiry).11 Courts have struggled with that difficulty since the inception of the provision.

The result is that one cannot conclude whether market share, financial strength and market power are necessarily related by first principles analysis.

Misuse of Market Power and attempts to tame it Perhaps the most that can be said of section 46 is that the intent of the provision was clear in principle, but less than clear in practice.

As Mason CJ and Wilson J wrote…

The object of s.46 is to protect the interests of consumers, the operation of the section being predicated on the assumption that competition is a means to that end. Competition by its very nature is deliberate and ruthless. Competitors jockey for sales, the more effective competitors injuring the less effective by taking

BWA-Ad264 200218.indd 2

sales away. Competitors almost always try to “injure” each other in this way. This competition has never been a tort (see Keeble v. Hickeringill [1809] EngR 7; (1809) 11 East 574 (103 ER 1127)) and these injuries are the inevitable consequence of the competition s.46 is designed to foster. In fact, the purpose provisions in s.46(1) are cast in such a way as to prohibit conduct designed to threaten that competition - for example, s.46(1)(c) prohibits a firm with a substantial degree of market power from using that power to deter or prevent a rival from competing in a market. The question is simply whether a firm with a substantial degree of market power has used that power for a purpose proscribed in the section, thereby undermining competition, and the addition of a hostile intent inquiry would be superfluous and confusing.12 Hostile intent by competitors towards each other is common and not improper.

Suppressing competitive activity may be common and is improper. But which is which? Section 46 as originally framed was not a provision that sat easily with the concept of “restriction” used by Gordon J. That is because, politically, it sits in a very difficult place in our legal and economic discourse. As the provision which focuses upon the “misuse” of market power, it is the provision to which those aggrieved by the effects of competition upon them most often point to say that the legislation is not working. That is, it is not working, because they have been economically affected by the activities of, almost inevitably, larger competitors.

That is a complaint which has been heard, increasingly loudly, over a number of years in the supermarket industry in particular, where Australia exhibits

a relatively high degree of market concentration in the retailing of dry goods between two high profile food retailers, and at all points of the supply chain. But it is not confined to complaints about retail alone. The supply chains for construction materials, books, music, pharmaceuticals and newspapers, have been a source of complaints over the years under the provisions of section 46. In some cases those complaints have been associated with the allegations breach of other provisions of the legislation, and often that allegation has succeeded where the allegation of misuse of market power has not.

As I will briefly discuss below, the result was a series of amendments to section 46 which reflected a political appetite, not effectively resisted, to protect competitors (and in particular small business competitors) rather than the process of competition itself.

The first amendments, effected in 1977 only three years after the enactment of the original Act a fundamental concept of monopoly introduced: it focused on corporations “in a position substantially to control a market for goods or services” taking advantage of the power it has in that market by virtue of that position.

Interestingly, the amended provision like its predecessor, looked to the power to determine prices or control levels of production, because of market share combined with technical knowledge, raw materials or capital – that is elements of financial power.

The substantive amendment came in 1986 when substantial control was changed to an “substantial degree of power in a market” and the focus on the assessment of market power was shifted to constraints imposed by competitors and potential competitors, and counterparties in the market it might

20/2/18 11:09 am

29

have countervailing power.

Amendments in 1992 introduced a broadening of the purpose test, to ensure that it could be read narrowly to focus upon a particular competitor, but upon competitors generally or a particular class of competitors, to avoid the need for the monopolistic behaviour to be targeted at a specific party (though it often would be).

This moved section 46 closer to the idea of protecting the process of competition, rather than a particular competitor.

The 2007 “Birdsville amendments”, driven by populist sentiments, introduced an additional provision specifically targeted at below cost pricing by corporations which had “a substantial share of a market”, rather than substantial market power. For the first time, to be big was of itself the first step to being bad, and the court was directed to look at the number and size of competitors in the market.

The provision focused upon a form of predatory pricing (and also made that form of predatory pricing a consideration under the existing provision), but inaptly and incompletely defined what form of predation was occurring – the price was to be a price “less than the relevant cost of the corporation of supplying such goods or services” leaving to be ascertained whether that was short run marginal cost, long run average cost, or on some other basis, and how indirect and overhead costs (in a corporation producing more than one good or service) were to be allocated. Importantly, there was no concept of recoupment and the first limb of the prohibition targeted a purpose of “substantially damaging a competitor” rather than the more conventionally competition process focused purpose of deterring or preventing “competitive conduct”.

Importantly and usefully (although probably unnecessarily), the degree of power in a market held by Corporation was to be assessed having regard to any Contracts, Arrangments or Understanding (CAUs) with third parties, and was made explicit that substantial degree of power does not require substantial control, nor absolute freedom from constraint or an absence of competitors or potential competitors. That was largely to restate the economically obvious but was telling for the lack of political confidence in the process of analysis undertaken in considering contraventions of section 46, at the time.

The problem of recoupment was addressed by separate amendment in 2008 which explicitly introduced a provision that a corporation might contravene even if the corporation “cannot, and might not ever be able to, 30 | BRIEF APRIL 2018

recoup losses incurred by supplying the goods or services”. A further gloss was inserted in relation to whether conduct might be viewed as “taking advantage” to a substantial degree of power and a market, by permitting (tacitly requiring) the court to have regard to whether the conduct was “materially facilitated” by that power, whether the corporation relied upon it’s power, whether it be likely that the corporation would have engaged in the conductivity did not have that power, and whether the conduct was otherwise in some way related to that power (nonexclusively).

The result of these amendments was a veritable shopping list of possible points, some of which were well-founded in economics, and some which were not.

But the core question of purpose at the heart of a contravention remained.

Harper and section 46 The ACCC has long sought an effects based test for section 46, following its recommendation in a government green paper in 1984, but prior reviews had uniformly rejected the adoption of effects based test as being inconsistent with the rationale for section 46 and liable to produce regulatory overreach.

That was so notwithstanding that effects tests were well-established in other provisions, and in competition laws in other jurisdictions.13 The question had long been debated (in particular in other jurisdictions), as to whether an effects based test for predatory conduct would result in regulatory overreach (false positives) causing great economic harm than a more benign and hard to apply test, available only in the most obvious cases, which risked regulatory under reach (false negatives).

The Harper Review tested the efficacy of section 46 against four cases subsequent to Queensland Wire.14 Three of those cases involved circumstances where the trial and appellate courts differed on the application of whether the particular corporation in question had taken advantage of its market power, three were determined ultimately in the High Court.15 Ultimately, the main issue identified by the Harper Review from those cases was that the jurisprudence has involved a focus on testing whether a contravention has or has not occurred, based upon a hypothetical counterfactual of a corporation without the market power. Counterfactual analysis is a common tool in law and economics, and involves, relevantly, the court asking itself how a firm without market power could have behaved to consider whether

the impugned corporation was taking advantage of its market power, or whether it was simply competing aggressively.

And the concern was that there were too many false negatives.

Underlying that is the concept of cases developed, that a corporation does not “use” its market power unless there is an identifiable nexus between the position of market power in the particular conduct in which the corporation has engaged.

Here, there are some obvious difficulties.

Large companies with large market shares may also have large balance sheets as a result. They may be able to deploy those large balance sheets to engage in aggressive competitive behaviour. But from an economic perspective, being large is relatively neutral. And the cases have struggled to identify a meaningful nexus between market power, and market conduct, illustrated by the High Court in Melway: Section 46 of the Act requires, not merely the co-existence of market power, conduct, and proscribed purpose, but 16a connection such that the firm whose conduct is in question can be said to be taking advantage of its power.

The move from purpose to effect, attracted much by way of submission but remarkably little by way of analysis in the Harper report itself.

That is despite a long history of attempts by the ACCC to introduce “effects” to section 46. The Dawson committee had been urged to introduce an effect alternative to purpose in section 46.17 That proposal was not accepted by the Dawson Committee and the Committee concluded that: For example, a large firm which established a new outlet in a specific market would not necessarily be behaving in an anti-competitive manner but rather to increase competition in the market. However, it is likely that the effect would be to damage incumbent firms. An effects test would apply and capture behaviour with an adverse impact on competitors, but not necessarily on competition. The introduction of an effects test would be likely to extend the application of section 46 to legitimate business conduct and discourage competition.

That is, the risk of false negatives was too high and could inhibit dynamic efficiency through aggressively competitive innovation.

The same arguments were not accepted by the more recent Harper committee

review. The thesis expressed by the committee was this: Common to those laws is the principle that firms are entitled, and indeed are encouraged, to succeed through competition — by developing better products and becoming more efficient — even if they achieve a position of market dominance through their success. Those laws only prevent firms with substantial market power from engaging in conduct that damages competition.

Which of course is the language of effect, and then came the “but”: Large firms may also enjoy strong bargaining power that can be abused in dealings with their suppliers and business customers. While imbalance in bargaining power is a normal feature of commercial transactions, policy concerns are raised when strong bargaining power is exploited through imposing unreasonable obligations on suppliers and business customers. Such exploitation can traverse beyond accepted norms of commercial behaviour and damage efficiency and investment in the affected market

sectors, requiring the law to respond both as a matter of commercial morality and to protect efficient market outcomes.

Four instances of competition laws in relation to the abuse of market power are cited in the Harper Report, across economies which ranged (in the case of the US and Canada) from between 15% and 20% of Global GDP (the EU and USA) to less than a quarter of 1 per cent (New Zealand). While a mature and leading economy, Australia remains, regrettably, closer to New Zealand in its contribution to global GDP, than the United States.

This has a number of implications for concentration in our domestic markets, the size of which do not generally encourage a large number of competitors, and rarely if ever are close to the economists ideal of perfect competition.

Recognising that both “purpose” and “effect” tests have the risk of both underreach and overreach the committee identified its challenge as being: …to frame a law that captures anticompetitive unilateral behaviour but does not constrain vigorous competitive conduct. Such a law must be written in clear language and

state a legal test that can be reliably applied by the courts to distinguish between competitive and anticompetitive conduct, to frame a quite polar debate in neutral terms.

The report at least recognised that section 46 in its present form is fraught with issues, though whether it presently fails to address the challenge identified above is hotly contested (as the submissions to the Committee record).

What is remarkable is the summary way in which the Harper Report dealt with the divergence in approaches between those jurisdictions and the differing market circumstances prevailing across those jurisdictions, given the conclusions which the report reaches and the recommendations which it made.

Harper recommended a wholesale revision of section 46 to include an effects test, framed analogously to the provisions of section 45. It drafted the relevant amendments and included them as the schedule to the report.

The government adoption of the Harper recommendations Generally, the government adopted the

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Harper committee recommendations for amendments to the Act, but reserved the proposed amendments to section 46 for further consultation, undertaken by the Treasury. However, following that consultation, the government endorsed a form of the Harper amendments.

The result of the adoption by government of the recommendations of the Harper committee (albeit that they are now in a somewhat different form to that which the committee proposed), is the embodiment of those proposed changes to section 46 in separate legislation recently passed by Senate, and the balance of the changes to the Competition and Consumer Act in a separate, more omnibus, Bill. A curiosity of the legislative process is that the changes to section 46 will not come into force until the omnibus bill becomes effective.18 That is a practical necessity, because much of the machinery which will mitigate, or reinforce, the operation of section 46 in its new form is contained in the omnibus Bill.

The provisions amending section 46 were embodied in the Competition and Consumer Amendment (Misuse of Market

Power) Bill 2017, which was introduced into Parliament on 1 December 2016, passed on 28 March 2017, and transmitted to the Senate where they languished until August 2017.

The Senate departed from the provisions contemplated in the Harper Report a number of regards, in particular by: •

removing the “factors” tests proposed by the committee; but

•

redefining the market in relation to which the relevant purpose or effect is manifest by reference only to markets in which the offending corporation and its related bodies corporate transact (although directly or indirectly); and

•

removing a defence that the Harper committee had contemplated should be included.

The first amendment was effected because it introduced a complexity into section 46 (a provision which historically has been replete with complexities) which was unnecessary and inconsistent with other provisions in Part IV.

Section 46 Misuse of market power (1) A corporation that has a substantial degree of power in a market must not engage in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in:

The second amendment reduced the significant risk of overreach, because the prospect of the conduct in one market might have effects in another in which the putative contravener did not participate, and, as a result, would be unlikely to contemplate and therefore avoid effectively “accidental” contraventions.

The third departure from the Harper recommendations again avoided the creation of a complexity which was arose from the inclusion (by way of a defence) of what was effectively, a “mini authorisation” test, when as a matter of policy and principle authorisation should be a matter affirmatively considered and dealt with before the a putative contravene engages in conduct which might contravene.

The Bill in the form transmitted for consideration by the Senate proposed a restructured section 46 in the following terms, which for convenience are aligned to the more or less comparable provisions of the paradigm competition provision – section 45,19

Section 45 (preamendment relevant equivalent provisions) (2) A corporation shall not: (a) make a contract or arrangement, or arrive at an understanding, if: (ii)

a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition

(a) that market; or

(3) For the purposes of this section, competition, in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, means competition in ...

(b) any other market in which that corporation, or a body corporate that is related to that corporation:

any market in which a corporation that is a party to the contract, arrangement or understanding or would be a party to the proposed contract, arrangement or understanding, or any body corporate related to such a corporation, ...

supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the provision, supply or acquire, or be likely to supply or acquire, goods or services.

(i)

supplies goods or services, or is likely to supply goods or services; or

(ii)

supplies goods or services, or is likely to supply goods or services, indirectly through one or more other persons; or

(c) any other market in which that corporation, or a body corporate that is related to that corporation (i)

acquires goods or services, or is likely to acquire goods or services; or

(ii)

acquires goods or services, or is likely to acquire goods or services, indirectly through one or more other persons.

(2) [Deleted] [factors for the assessment of purpose and effect] (3) A corporation is taken for the purposes of this section to have a substantial degree of power in a market if: (a) a body corporate that is related to that corporation has, or 2 or more bodies corporate each of which is related to that corporation together have, a substantial degree of power in that market; or (b) that corporation and a body corporate that is, or that corporation and 2 or more bodies corporate each of which is, related to that corporation, together have a substantial degree of power in that market.

32 | BRIEF APRIL 2018

[See sub-s. (4)(b)]

(4) In determining for the purposes of this section the degree of power that a body corporate or bodies corporate have in a market:

(4) For the purposes of the application of this section in relation to a particular corporation, a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding shall be deemed to have or to be likely to have the effect of substantially lessening competition if that provision and any one or more of the following provisions, namely:

(a) regard must be had to the extent to which the conduct of the body corporate or of any of those bodies corporate in that market is constrained by the conduct of: (i)

competitors, or potential competitors, of the body corporate or of any of those bodies corporate in that market; or

(a) the other provisions of that contract, arrangement or understanding or proposed contract, arrangement or understanding; and

(ii)

persons to whom or from whom the body corporate or any of those bodies corporate supplies or acquires goods or services in that market; and

(b) the provisions of any other contract, arrangement or understanding or proposed contract, arrangement or understanding to which the corporation or a body corporate related to the corporation is or would be a party;

together have or are likely to have that effect.

(b) regard may be had to the power the body corporate or bodies corporate have in that market that results from: (i) any contracts, arrangements or understandings that the body corporate or bodies corporate have with another party or other parties; or (ii) any proposed contracts, arrangements or understandings that the body corporate or bodies corporate may have with another party or other parties.

(5) For the purposes of this section, a body corporate may have a substantial degree of power in a market even though: (a) the body corporate does not substantially control that market; or (b) the body corporate does not have absolute freedom from constraint by the conduct of: (i) competitors, or potential competitors, of the body corporate in that market; or (ii) persons to whom or from whom the body corporate supplies or acquires goods or services in that market.

(6) Subsections (4) and (5) do not limit the matters to which regard may be had in determining, for the purposes of this section, the degree of power that a body corporate or bodies corporate has or have in a market.

(7) To avoid doubt, for the purposes of this section, more than one corporation may have a substantial degree of power in a market.

(8) In this section: (a) a reference to power is a reference to market power; and (b) a reference to a market is a reference to a market for goods or services; and (c) a reference to power in relation to, or to conduct in, a market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market

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33

All of the ancillary measures, including those for authorisation provisions, are contained in the Competition and Consumer Amendment (Competition Policy Review) Bill 2017 which was not introduced into the House until 30 March 2017.

The bill received Royal Assent on 23 August 2017 and entered force as Competition and Consumer Amendment (Misuse of Market Power) Act 2017 (Act 87 of 2017).

The provisions were structured so as not to commence unless and until the Competition and Consumer Amendment (Competition Policy Review) Bill 2017 passed the Parliament, with the omnibus changes to the competition law, including necessary changes to the authorisation procedure. This Bill passed both Houses on 18 October 2017. The Misuse of Market Power Act was to come into effect either on the day fixed by proclamation or six months from the time the Competition Policy Review Bill received Royal Assent. That was expected to be late April 2018 to allow businesses some time to review their practices and prepare for implementation, but in fact the Act was proclaimed to come into effect in mid-November 2017.

Applying the Effects Test The changes which have been brought into effect by the amendments are considerable and go to the application of section 46 under both the purpose and effect limbs.

The market power issue The new section 46 has been simplified in relation to the considerations for a court in assessing whether a corporation has a substantial degree of market power. First and foremost this will be, as it always should properly have been, a question of economics – do the behaviours which the corporation exhibits manifest its ability to act, to some substantial degree, free from normal competitive constraints.

That is made clear by paragraph (5) (B) which emphasises that absolute freedom of constraints is not required to have market power, and subsection (7) which emphasises that more than one corporation can have substantial power in a market. Apart from that, notions of predatory pricing, recoupment, et cetera have been shorn away.

One provision that has, in substance, always been there, and which is important in the Australian economy, is that market power is assessed on a group basis –

34 | BRIEF APRIL 2018

subsection (3) looks to the the market power held, collectively, by related bodies corporate and effectively imputes that market power to each of them.

That may raise interesting questions where those related bodies corporate are not wholly-owned subsidiaries of a common entity but a part of a more complex set of arrangements. So, a corporate group in which one subsidiary has a jointly owned corporate structure with a third party, which provides technology solutions which are unique or highly differentiated to that company under license, may have a measure of market power which can be imputed to a sibling company selling products using similar and partly substitutable technology if their behaviour can be coordinated so as to create, effectively, barriers to entry to other competitors or raise prices to consumers.

Non-corporate structures can also create market power as provision in relation to CAUs makes clear – such contractual arrangements can foreclose or inhibit the free availability of competitive source of supply, for example by monopolising or foreclosing inputs.

The assessment of market power accordingly is not (and never has been) a matter of looking simply at a single corporate entity against which misuse of power is alleged, and examining the conduct in isolation. The group structure, and the network of (in particular vertical) arrangements but which that entity acquired and supplies goods or services must be examined to form an assessment of the existence of market power.

The substantial lessening of competition issue The intent of the amended section 46 is plain, which is that the standard SLC test found elsewhere in Part IV is now to be applied in the assessment of contraventions of section 46.

The focus has moved from a particular competitor or competitors, to the process of competition itself. “Substantial” for the SLC test does not mean large or weighty, it means identifiable, measurable, material, not insubstantial, producing a discernible effect or being meaningful relevant to the competitive process.1 A very rule of thumb test for assessing whether conduct substantial lessons competition is whether it permits a competitor to sustain a Small but Significant and Non-Transitory Increase in Price or SSNIP, (often set at 5% for the purpose of high-level assessment).

If conduct can allow a market actor to profitably sustain a SSNIP at that level,

that likely has substantial market power, and its conduct is likely substantially lessened competition.

Rarely will the analysis actually be simple. In particular where the market is a products and services which are differentiated although still substitutable, rather than undifferentiated perfect substitutes. Both in ultimate consumer markets, and input markets producers will often have multiple versions of a product all which are substitutable to different degrees, with different features and at different price points (for an easy example, see the iPhone, for a more complex one, look at the range of canned beans in your local supermarket) assessing the effect of profit maximising behaviours will involve calculating the interaction between multiple products of moving prices and features.

Effect – the concern The lingering concern, referred to

by Harper and in the course of the Treasury review, and the source of many submissions to both, is that the change from purpose to effect will produce too many false positives. As competitors fail because of innovative (and indeed aggressive) variations on conventional competitive strategies larger businesses (relative to their markets) expressed the fear that they may be unappreciated consequences of their actions which may be held, ex post facto, have any effect upon the competitive process.

Even competitive practices which would be regarded as being “normal” – things that any competitor could do, might be “too competitive” so as to be injurious. Indeed, that is a policy view which regulatory authorities, and now government, have taken. That is that some “normal” things done by a dominant business may be anti-competitive, when if done by a non-dominant business, would be competitive. Some of the behaviours discussed, below, and now embodied in guidelInes issued by the ACCC, indicate types of behaviour where the size of the existing business does impact upon the effect of the conduct.

Moreover, as the conduct illustrated in those Guidelines evinces, when compared to the case law, larger businesses are already exposed to the effects test, in practice, where the conduct of concern involves a CAU, some kind of tying or bundling, or the acquisition of assets (to be tested under section 45, 47 or 50) were an SLC test has been applied to the effects of that conduct from the inception of the legislation.

Guidance So what we are actually looking at under the new provisions, that is new, and presents risks that have not previously been explored under section 46 (although they may have been considered under the provisions? In October 2017 the ACCC issued “Interim Guidelines on Misuse of Market Power” which provides its views as a regulator lease the areas of concern upon which it will focus in the short term.

Some of them are conventional, and some have an element of novelty.

Paragraph 3.2 of those guidelines list 6 types of conduct as having “greater” potential to involve a contravention of section 46, either in isolation or combined with those or other practices. The identified practices are: 1. Refusal to deal – this goes back to the original Queensland Wire Industries and Melway cases, while the legislation wrecked recognise the businesses are generally entitled to choose who they do and do not deal with, the withholding of a key input to the business of a competitor, either in the same or more importantly in a different market (usually, vertically, below the relevant market in the

chain of distribution) can inhibit competition in that other market. In the Queensland Wire case BHP as the sole supplier of source stock material for the manufacture of star pickets in Australia was prepared to supply to a competitor of one of its subsidiaries in the rural fencing products market, only at a price which would be uncompetitive – a constructive refusal to deal; 2. Restricting access to essential input – one can put Queensland Wire also in this category, but more recently illustrated by ACCC v Cement Australia (which succeeded under section 45 as a case of a contract for the effective monopolisation of a source material (fly ash) which had the effect of substantially lessening competition in a derivative market – concrete. Essential inputs can be both tangible and intangible but must be non-substitutable resources which are indispensable to the provision of a good or service. An instance which the ACCC uses and with which it has been concerned for some time, is the acquisition of rights over land which (because of restrictive zoning laws imposed for good regulatory policy

reasons) effectively forecloses access by competitors to sites from which they can compete – big box retail sites, and shopping centre leases have been considered previously by the ACCC as being of concern in this area, generally, again, these could fall to be assessed under section 45; 3. Predatory pricing – the classic instance of section 46 conduct historically, where the ACCC looks, in accordance with conventional economics, at whether a firm sets at prices at below “its own cost of supply” for “a sustained period” to: a. cause competitors to exit the market (a frequent result of effective, aggressive, competition); b. discipline or damage competitors for competing aggressively; or c. discourage potential competitors from entering the market; all of which may occur without any reasonable contemplation that the business engaging in the conduct will recoup the cost of that behaviour directly.

But there is a behavioural element, which is observable in human action, that even

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35

though classical economics would say that recoupment might not be practical, because should follow an increase in prices or reduction in supply, competitors have actually been scared off and hurt may simply decide that they have better things to do, regardless of what conventional economics might tell them.

This behaviour can, therefore, be effective in practice, even if in theory it should not be; 4. Loyalty rebates – something to which the ACCC has turned its attention a number of times in recent years, in particular with shopper dockets which combine elements of both loyalty rebates and tying and bundling. As the ACCC identifies in the guidelines rebates in particular, which are set of volume basis such that they encourage the beneficiary to effectively foreclose purchases from any other supplier, and rebates which bundle together several products can strongly incentivise particular purchasing behaviour. In substance, of course, such a loyalty rebate is nothing more than a price cut, but a conditional price cut.

However, they are particular effective means of protecting an existing large market share, against new entrants.

Likely, such rebates would always have been caught by section 46; 5. Margin and price squeezes – are a slightly more subtle form of refusal to supply – by setting pricing (as occurred in Queensland Wire) of an input material at a level which effectively renders the use of that input material uncompetitive in a downstream market in which the firm also competes, competition can be effectively foreclosed – but only in those circumstances where the party misusing its power has a presence at multiple levels of the chain of production and distribution, so that it can, effectively, use power at one level for the benefit of its operation that another; and 6. Tying and bundling – these have always been caught within section 45 and 47. Tying is the imposition of a requirement that a purchaser of one product, also acquire another good or service from the supplier.

Historically, the distribution of beer (where premises were leased from the brewery company, and tied to the purchase of that company’s products) provides a classic instance of strong vertical ties.

Tying may also be more subtle, in that it may be noncontractual or any party contractual. Computer 36 | BRIEF APRIL 2018

printing is a classic instance of a technological tie – the cheap printer goes with expensive ink, packaged in a way which is technologically differentiated, and hard to replicate (and with a guaranteed fight with the manufacturer if you attempt to substitute a third party or recycled product). Bundling occurs when a supplier offers a lower (or acquirer a higher) price for acquiring more than one good or service together.

Variations of this can include requirements based contracts (requirement by a minimum volume of multiple products in order to be supplied with any) and tiered rebates for multiple non-substitutable products acquired together.2 Finally, though it is not included in the ACCC guidelines, is the difficult area of “most-favoured-nation” and matching clauses. While on their face pro competitive, because they appear to produce lower prices either the offer of, or demand for, most-favoured-nation term can have a quite chilling effect on pricing. Once A has agreed with B that B is entitled to a most-favoured-nation price (such that the price charged to B will go down, if A charges a lower-price to any competitor of B, to match that price) A has a powerful reason not to offer lower prices to C, D and E in order to make marginal sales. The demand by B for a most-favoured-nation provision in a supply contract can reinforce its market share by, effectively, a subtle form of margin/price squeeze on its competitors.

But it may also be beneficial to A which has inexplicable reason for not dropping its prices!

The Guidelines issued by the ACCC are just that. They do not bind the Commission, and will not circumscribe its activities. One might suspect that those so inclined to try and “super aggressively” compete will see them as a challenge – and try and work out how to thread the needle between, or go around, the markers that the Guidelines post. Most likely, serious conduct which concerns the ACCC will involve elements of all of these instances of conduct.

The guidelines also indicate what the commission does not regard as falling within section 46, though it is a far shorter list. It is also quite trite – mere price competition or a price war, research and development and innovation, the acquisition of new production and distribution technologies to increase economic efficiency are all “virtues” in producing dynamic efficiency and economy. Price wars discipline weak competitors; new goods and services

displace the old; and, new and more efficient ways of working force others to themselves innovate, or fail.

However, that is where economics and politics collide and one suspects it will not be long before those affected by innovation, aggressive (but not supranormal) price competition or new ways of doing business howl as loudly as the small independent grocers did at the growth of the major supermarket chains, and bookstores (and soon, pretty well everybody else) at the rise of Amazon.

Being true to the economic purpose of section 46, for both the regulator, and courts before whom complaints are brought, will remain challenging.

Remedies – why it matters The changes which were effected following the Harper review did not, materially, alter the penalty provisions which are of course critical to the effective operation of the legislation. A right, of any nature is meaningless without a correlative remedy and while the remedies provisions have expanded in their range and flexibility over a number of iterations, these were not substantively affected by the review or legislative process.

The Harper committee expressly considered, yet again, the question of whether a divestiture remedy – that is the inclusion of an explicit power to break up an incumbent with substantial market power, available in both United States and the European Union, should be included, and rejected that possibility.3 There is a divestiture provision in the Act, contained in section 81, but it is applicable only to divestitures to undo competitive harm caused by a merger which is contravened section 50. Its scope has not been extended to conduct in contravention of any other provision.

So, those who seek to rely upon section 46 whether as regulator or market participant left to the two primary remedies of money and injunction. The ACCC, of course, can seek a pecuniary penalty, while the focus for a market participant will be upon damages.

The conventional approach The pecuniary penalty which is directed against the contravener and those concerned in devising and implementing the offending conduct [reading ss 76 with 75B], it is very significant, and although of course a maxima in order to retain the necessary judicial discretion, the potential penalty is by s 76(1A)(b): (b) for each act or omission to which

this section applies that relates to any other provision of Part IV—the greatest of the following: (i) $10,000,000; (ii) if the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the act or omission—3 times the value of that benefit; (iii) if the Court cannot determine the value of that benefit— 10% of the annual turnover of the body corporate during the period (the turnover period) of 12 months ending at the end of the month in which the act or omission occurred; And for individuals, $500,000.

(5) For the purposes of this section, the annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than: (a) supplies made from any of those bodies corporate to any other of those bodies corporate; or (b) supplies that are input taxed; or (c) supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999); or (d) supplies that are not made in connection with an enterprise that the body corporate carries on; or (e) supplies that are not connected with Australia.

What should be appreciated is that this provision creates very clever economic incentives, once a contravenor realises that they are going to lose, to use their own records and resources to actually identify the competitive harm (so as to try and reduce it) so as to avoid falling into the default penalty of 10% of turnover.

Effectively, once condemned, one has to bargain against oneself in relation to penalty. This raises significant practical pleading and evidentiary issues, most acutely of timing as to when to plead, and lead evidence, in particular if the trial is not managed so as to separate liability and penalty phases.

Injunctions are dealt with in section 80, which allow both prohibitory injunctions (to force an offending party to stop engaging in monopolistic behaviour) can be mandatory (and might compel an offending party to do something which would mitigate the offending behaviour, such as to create a supply chain, or deal in particular terms) but affirmative relief in that matter does not yet seem to have been tested in the Australian jurisdiction.

There are of course a number of other remedies which can be employed to significant punitive effect, although not ostensibly punitive, including adverse publicity orders, community service orders, and (in relation to directors and officers) orders disqualifying them from being involved in the management of businesses for a defined period of time.

The latter is derived from provisions which have existed in the Corporations Act for many years, which are routinely used to disqualify corporate officers involved in insolvent and other breaches of the duties to act honestly and for a proper purpose. The cases make it clear that this is not punitive, but rather prophylactic – to protect the community from the risk of future misconduct, at least until the defaulting officer has had some time to contemplate their misdeeds and

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re-educate themselves in relation to the proper standards of behaviour expected of them.

The use of remedies in relation to section 46 cases The deployment of these remedies in relation to contraventions of section 46, to date, has focused around the pursuit of pecuniary penalties by the Commission, and injunctions to restrain future conduct and damages by the affected rivals.

In the high point (successful) cases: Queensland Wire Industries4 and NT Power Generation Pty Ltd v Power and Water Authority5 the (private) counterparty claimed both damages and injunctive relief.

Both cases were remitted for the determination of damages, but no report exists of the outcome of that process.

In the regulatory proceedings under section 46: TPC v Pioneer Concrete (QLD) Pty Ltd,6 ACCC v Ticketek Pty Ltd,7 ACCC v Pfizer Australia Pty Ltd,8 ACCC v Rural Press Ltd,9 ACCC v Cabcharge Australia Ltd;10 ACCC v Australian Safeway Stores Pty Ltd (No.2),11 ACCC v Baxter Healthcare Pty Ltd,12 Universal Music Australia Pty Ltd v ACCC,13 Boral Besser Masonary Ltd v ACCC14 and ACCC v Cement Australia Pty Ltd,15 damages were of course not in issue, the Commission not relevantly acting on behalf of the affected competitors, and having (with the exceptions of Australian Safeway Stores Pty Ltd and Baxter Healthcare Ltd) either negotiated agreed penalties and other remedial measures, or failed.

Apart from those cases, there appear to be no reported instances of a party affected by a misuse of market power pursuing a claim for damages to successful curial resolution.

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37

Conclusion The changes which have been effected to section 46 in which will shortly come into force have been hard fought over and debated not for years but for decades in one form or another. Section 46 can now be seen to be, in its application, more conformant to the policy approach taken to the other restrictive practices regulated in Part IV of the Act. Whether the feared excess of false positives eventuates will take some years to ascertain. To some extent it is likely that the concern about the number of positives studiously ignores that SLCbased effects test can be (and often has been) applied to conduct said to constitute a breach of section 46, when engaged in by a firm with substantial market power.

How section 46 is used, in practice, sympathetically to those sections of the business community which have sought stronger safeguards against competition from large market participants will be the acid test of whether section 46 is, ultimately, about economic, or political, welfare.

At least in theory, such a claim should up till now have been (relatively) straightforward. Under section 46 as it has been to date, the focus of the anticompetitive activity has been on a particular competitor or competitors. The very essence of the anticompetitive harm contemplated by the first limb of section 46 was a purpose of eliminating or substantially damaging a competitor, and many of the leading cases demonstrated very specific behaviour targeting a specific competitor or group of competitors, to either eliminate them (Queensland Wire or Concrete Products) or deter competitive behaviour (Rural Press or NT Power). In those cases (where the conduct has had a demonstrable effect) the prospect of establishing individual damage caused “by” the contravening conduct is obviously higher than cases in which conduct more generally suppresses competitive activity. While the object of protection is general consumer welfare16 the proxy for protection is the harm occasioned to the competitor.

But two things must be said about that: First, the assessment of damage remains a challenging exercise.17 Secondly, it is almost perverse that consumer welfare is protected through the medium of an award to a competitor (with no certainty as the effects of pass through), for injury suffered to the competitor’s ability to compete.

38 | BRIEF APRIL 2018

Both of those difficulties persist and may be exacerbated to the extent that the “effect” limb is now to be relied upon by competitors. Properly analysed, if you rely upon an effect upon competition, generally, rather than effect upon the competitor, proof of harm requires the construction of a counterfactual competitive market which would otherwise have existed, and then an attempt to identify in that market what the position of the complainant market participant would have been. The curiosity there is that the closer that counterfactual market gets to being a perfectly competitive market the less “lost profit” there will be because perfect competition minimises profit. It may be, indeed, that future cases rely upon the effects test will be more concerned with claims by purchasers against suppliers, at various points in the chain of distribution, then between those having the same functional role in a market. That has already been the case in Queensland Wire Industries and Melway, and reflects some of the politics which are surrounded section 46 and its amendment – in particular in such areas as supermarket supply chains (where the expressed concerns are focused around suppliers to supermarkets, from paddock, to processor, to warehouse and the asserted oligopsony power of the supermarket chains).

NOTES: 1

See for example Rural Press v ACCC (2003) 216 CLR 53 at [41] and Universal Music v ACCC (2003) 131 FCR 529 at [242].

2

See, for example, ACCC v Baxter Healthcare Pty Ltd [2008] FCAFC 141 (on sections 46 and 47), in which Baxter Healthcare offer to supply to a number of State purchasing authorities of sterile fluids used for dialysis treatment. Baxter manufactures and supplies intravenous (IV) solutions, peritoneal dialysis (PD) fluids and parenteral nutrition (PN) products. It has an effective monopoly in relation to sterile fluids but faced real competition in relation to PD fluids. During the relevant time Baxter tendered for the supply of sterile and PD fluids to State Purchasing Authorities (SPA’s). If offered products either as (prohibitively) high item-by-item prices or ‘bundled’ at significantly lower prices. The ‘bundled’ price was only available on condition Baxter was the sole supplier of both sterile and PD fluids to the SPA’s. [Summary courtesy of the Australian Competition Law blog site at: https://www. australiancompetitionlaw.org/cases/2007baxter.html].

3

More formally, the Competition Policy Review conducted under the auspices of Prof Ian Harper, Mr Peter Anderson, Ms Sue McCluskey and Mr Michael O’Bryan QC, who delivered their final report on 6 March 2015 (Final Report) 345-347.

4

[1989] HCA 6; (1989) 167 CLR 177.

5

[2004] HCA 48; (2004) 219 CLR 90.

6

(1994) 124 ALR 685.

7

[2011] FCA 1489.

8

[2015] FCA 113.

9

[2001] FCA 1065.

10

[2010] FCA 1261.

11

[2003] FCAFC 163.

12

[2008] FCAFC 141.

13

[2003] FCAFC 193.

14

[2003] HCA 5.

15

(2016) 336 ALR 1.

16

Section 2 of the CCA.

17

For the reasons well explained by Dr Caron Beaton – Wells in her “Article Private Enforcement of Competition Law in Australia — Inching Forwards?” (2016) 39 MULR 681.

Sources (Lawyers Weekly and Thomson Reuters Legal Australia LGBTQI survey): 1. http://insight.thomsonreuters.com.au/resources/resource/lgbtqi-inclusion-diversity-infographic 2. http://www.abc.net.au/news/2017-11-15/same-sex-marriage-results-ssm/9145636 3. http://www.news.com.au/lifestyle/relationships/marriage/samesex-marriage-survey-why-thousands-of-votes-were-deemed-invalid/news-story/6459dc09f72545daa718dcbfe693a043 4. https://www.lawyersweekly.com.au/careers/22411-report-sheds-light-on-lgbtqi-inclusion-in-law-firms

39

Dr ver's Dog Send your submissions to the Dog via brief@lawsocietywa.asn.au

Your Dog revels in the majesty of the cycle of life – the birth of a child, which carries such hope, joy and expectation for its future. It is encapsulated to perfection in the music and lyrics of Handel’s Messiah “For unto us a child is born, unto us a son is given, and the government shall be upon his shoulder; and his name shall be called wonderful counsellor, the Mighty God, the Everlasting Father, the Prince of Peace” (Isaiah 9:5).

Anzac Day is a time when that timeless expression of joy and expectation, contrasted with tragic loss of life, looms large in the Dog’s mind.

Alexander Phipps Turnbull (1888 – 1915), the son of Alexander (Alec) and Marian Turnbull was born under the same star as that predicated in Isaiah.

Alec had moved to WA from South Australia. He married Marian Lee Steere. Alec had interests in mining, horse racing and was a grazier. He was a member of the Weld Club and co-founded what became the WA Club. Alec and Marian moved to Lynburn station, east of Esperance, where the family lived.

Phipps excelled in his schooling at Perth High School (Hale School). In 1906 he was first in Latin, French, Greek and English. He was Captain of School and Dux. He played in the First XI, rowed, played soccer and was a distinguished athlete and horseman.

Selected as Western Australia’s fourth Rhodes Scholar, in August 1907 he went to Merton College at Oxford.

He studied arts and jurisprudence. He rowed for Merton and represented it at soccer. He served in the King’s Colonials cavalry regiment. In mid-1910 he was one of only three who graduated with first class honours. He was called to the Bar as a member of the Inner Temple, returning to Australia in December 1911.

Phipps joined Parker & Parker at its Howard Street office. By 1914 Phipps was about to become the first partner of the firm who was not a relative of Sir Henry Parker. Phipps was active in the West Australian Rowing Club, the Royal Perth Yacht Club, the Old Boys Association, and he joined the Weld Club.

Molly Marmion, his fiancée, was the daughter of William Marmion, a prominent West Australian. A photograph of Molly and Phipps is included in the Private Collection items of the Australian War Memorial. Molly had much of her formal education in the UK at boarding school.

She was an accomplished writer.

In 1915 Phipps enlisted for service in the 10th Australian Light Horse regiment, together with Gresley and Wilfrid Harper, sons of Charles Harper.

40 | BRIEF APRIL 2018

Gresley was practising as a barrister in Perth, whom Phipps briefed. Wilf and his brother Prescott farmed Koorian, 3700 acres west of Gingin Brook. Following his father’s death in 1912 Wilf moved to Ferndale near Balingup.

After training at Guildford, Claremont and Rockingham the men left for Gallipoli via Colombo and Egypt on the troop carrier Mashobra. On 21 May 1915 they arrived at Anzac Cove and disembarked from the Lutzow. By July 1915 Phipps had been promoted to lieutenant.

On 7 August 1915, aged 27, as Phipps and others emerged from the trenches in a poorly planned and illtimed break out, under orders to charge in waves under debilitating enemy fire over open ground from Russell’s Top, across the hillcrest known as the Nek, Phipps was shot and died. Gres and Wilf Harper and many others were mown down. A survivor called it “a FOOL charge”.

The 10th Light Horse was decimated. Phipps’ grave is at Ari Burnu cemetery, Anzac Cove.

On 21 August 1915 Alfred Smith, a telegraph linesman at Israelite Bay, was dispatched on a “fearful ride” on horseback in foul weather to Lynburn, 48 miles away, to deliver a cable with the news of Phipps’ death to his family. He arrived at the station 10 hours later, where he gave Alec and Marian the heart rending news of Phipps’ death. Isaiah’s prophecy for him and for another 50,000 or so had turned to dust.

At the Anzac Day service on 25 April 1916 Sir Harry Barron, Governor, unveiled a plaque in St Georges Cathedral in commemoration of Phipps, who is also named on the memorial marble tablet in the Cathedral as a tribute to members of the 10th Light Horse. He is named at the 10th Light Horse memorial in King’s Park, and on the war memorial at Esperance. His name is on a remembrance plaque in May Drive, Kings Park: the

tree originally planted by his mother has died and been replaced. The remembrance plaques for Gres and Will Harper are in Lovekin Drive, adjacent to a newly planted tree.

Phipps is listed on the honour boards at the Weld Club and at RPYC. Hale School has commemorated him in the naming of Turnbull House, his naming in the Hale Memorial Grove and on the School’s collective honour board.

In To-Day and Yesterday Molly described “the first wild gust of grief” and “the slough of a hopeless, despairing melancholy”.

“It is hard for the women who have lost all to face each succeeding day with a smile, probably only God knows how hard; fill their lives with what they will, there is always the emptiness, always the pain that never seems to grow less, and when one is young and the vista of years ahead seems very long, sometimes one is afraid.”

Molly later moved to England, where she married, but she died aged 49.

Phipps’ cousin, Evelyn Elgee, continued to commemorate Phipps’ memory more than 50 years after his death. She donated a silver salver to Hale School, and his Gallipoli medal. In 1984, after her death, her executors paid a bequest under her will to Hale School to endow a

scholarship, it being to inspire future Australians to try to be like Phipps.

Your Dog, not a beast given to emotion, quietly wept as he dipped his claw in the molten tar in St Georges Terrace, and sadly scratched this account. A couple of kindly tourists patted him on the head, remarking what a good, studious dog he seemed to be. That was the straw that broke the camel’s back: your Dog looked up at the sapphire blue sky above Perth, and howled.

Perhaps Anzac Day should be given to quiet contemplation, as to how to prevent these conflicts recurring in the future. Celebration of Australia’s “coming of age”, as journalists, politicians and commentators describe it, is misplaced. Armed conflict, whatever purpose it is intended to serve, is a tragedy for all societies, wasteful of people, resources and utterly destructive, not only of the hopes and aspirations at birth, but of all that is so good in the world. The Dog hopes that the elected representatives in the Federal Parliament will one day come of age, and understand the significance of their oath to serve the Commonwealth and all its people.

(With acknowledgements to “Farewell, dear people – Biographies of Australia’s lost generation”, Ross McMullin, Scribe Publications Pty Ltd, 2012; “3 Barrack Street – The Weld Club”, Paul de Serville, The Helicon Press Pty Ltd, 2004; Molly Marmion “To-day and Yesterday” Westralia Gift Book 1916)

Dear Dog, A Particular Dog’s Life Trigg is quite a fashionable suburb in Perth, particularly as it overlooks the ocean. The writer is of an age where as a youth it was quite an experience to be invited over school holiday periods to stay with friends whose fathers’ owned a Beach House in this suburb.

At the time it was regarded as quite some distance from Perth but perhaps not in Eagle Bay’s stature today.

Last week I had occasion to visit my brother who lives at Trigg. He has a lorikeet which he rescued, as it was no longer able to fly.

The lorikeet is in a cage hanging perhaps a metre and a half above the floor of the verandah. Oscar, another brother’s cocker spaniel arrived and took great interest in this now flightless bird and began standing on

his hind legs and pawing and nuzzling at the cage. The size of the bars in the cage were sufficient to repel his paws and nose from gaining access, but not small enough for the wily lorikeet, fighting back quickly, putting his beak through the aperture in the bars and causing blood to flow from Oscar’s nose.

Oscar then contented himself for the rest of the evening eating scraps of food that fell to the floor from the dining table and lost all interest in Mr Lorikeet.

Many thanks for your column which I enjoyed immensely.

Best Wishes, R E Ledger Chartered Accountant

41

2018 Member Scorecard Results In February, 376 members evaluated the Society’s performance against eight key performance indicators (KPIs) in the Society’s four-year strategic plan, Strategic Direction 2017-2020.

Member feedback indicates the Society is committed to building a reputation as the essential membership for lawyers.

A growing number of members are reporting high satisfaction. Overall, 86% of members are satisfied, an increase of 3% points over the past 12 months and up 14% points since 2011.

The Society is considered to be the voice of the legal profession and to be keeping members well informed about changes in legislation and key issues affecting the profession. There is high satisfaction with the Society’s ecommunications, including Friday Facts, CPD News and YLC News.

The Society’s website, Brief journal and continuing professional development were flagged as areas to address when Council adopted the new Strategic Plan in 2017. Over the past 6 months, the Society has been developing new strategies to better meet members’ needs in these areas and service improvements to these areas will be communicated to members over the coming months as they occur.

If you have ideas about how the Society could improve, or to discuss these results further, please contact the Chief Executive Officer, David Price on (08) 9324 8605 or by email dprice@lawsocietywa.asn.au.

86%

74%

1. Member Satisfaction

2. Has a good understanding of members’ needs

86%

83%

3. Keeps members well informed about changes in legislation and key issues affecting the profession

4. Is the voice of the legal profession in Western Australia

64%

79%

5. The Society's website

6. Brief journal

69%

86%

7. Continuing Professional Development

8. e-Communication i.e. Friday Facts, CPD News and YLC News

Target achieved

42 | BRIEF APRIL 2018

Focus area

Aunt Prudence Juris Your one stop solution to problems after law school Ever wondered about how to recover from a faux pas at work, how to reject work-social invitations without becoming a pariah, or whether honesty can cost you your job? Life as a junior is filled with perils, but it’s not all doom and gloom! The YLC is starting a column to answer those beleaguered questions of yours or to hear your side of the story.

Dear Aunt Pru,

Sugar,

I love working for my firm and the opportunities for career progression are great. I work in a tight-knit and high-achieving team, and do not want to leave anytime soon. However, I have developed feelings for the married Senior Associate in my team, who I have been working with for a number of years now. I don't want to give up my wonderful life at my firm, but I also don't want to stick around and end up getting my heart broken. What do I do?

It sounds like you’ve got yourself into a pickle. There are two big problems with no easy solution. Take it from this lady who has seen it all. No matter what, professional boundaries must always be drawn at work. Your team may have different sensitivities in relation to office relationships and to divorce, and you might just find some of your friendships severely tested.

Cam Crossroads

No question is too big or small, and Auntie loves a nip of gossip!

So send your burning questions to Aunt Pru at http://freesuggestionbox.com/pub/iddzxds

The first question is, does said Senior Associate know about your feelings? If he or she does not, stay in that territory. I advise you to be cautious in encouraging infidelity – you do not want to be one taking the wrecking ball to a marriage.

It sounds like you have developed feelings for this colleague over a few years, but that teamwork, friendships and career opportunities at work have not been jeopardised. If everything else at work is going well, then unrequited love would be the safest bet. Should you not be able to stop falling in love with this married man or woman, you should think about moving elsewhere. Whilst it seems like your firm has the trifecta of a good team, good work and promotion opportunity, remember that there are other fish in the sea, and another firm may offer you all that, less a guilty conscience.

Hugs and kisses, Auntie 43

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

Property – Wife’s application filed electronically after 4.30pm accepted (despite FLR 24.05(2)) as filed before husband’s death hours later In Whooten & Frost (Deceased) [2017] FamCA 975 (29 November 2017) the wife filed a property application when she learned that the husband (from whom she had been separated for two years) had been placed on life support after a farming accident. Her application – for an order that she be excused from particularising her final orders until the husband had made full and frank disclosure – was electronically filed at 7.40 pm. The husband died at 11 pm.

His estate relied on FLR 24.05(2) (an electronic filing “after 4.30 pm according to legal time in the [ACT] is taken to have been received … on the next day when the … registry is open”) to argue that the wife could not apply after the husband’s death (22) and that her application needed amendment to claim some relief if it was to invoke jurisdiction ([44]). Cronin J disagreed (at [45]): “ … The jurisdiction … is enlivened by a party filing an application seeking a matrimonial cause. Did the wife’s application seek that the court exercise its jurisdiction in relation to ‘proceedings between the parties to a marriage with respect to the[ir] property … ? Clumsily though the words may have been expressed, I accept that the wife invoked the jurisdiction seeking orders with respect to property. ( … )” The wife sought an order under FLR 1.14 to extend time under the rules, the estate a decision that the rule “should not be applied because the rules cannot create a substantive right” ([47]). Cronin J, however (at [49]-[51]), cited the judgment of McHugh J in Gallo v Dawson [1990] HCA 30 who said that rules of court “cannot become instruments of injustice”.

Applying Rules 1.14 and 1.09 (“if a doubt exists in relation to … practice a court may make such order as it considers necessary”) it was held that the wife’s application should be treated as having been filed when it was filed electronically.

Property – When heads of agreement at a mediation involving a third party take effect is a question of fact In Thatcher & Thatcher & Ors [2017] FCCA 3008 (6 December 2017) heads of agreement at a mediation between the husband, wife and their two sons related to the property case between husband and wife and a case by

44 | BRIEF FEBRUARY 2018

the sons against their parents in the Supreme Court of Victoria where they claimed an interest in a farming company. The sons agreed to pay the husband $800,000 and interest of 3.5 per cent p.a., the husband agreeing to transfer properties to the wife. After orders were made the husband refused to settle, arguing that he was entitled to interest since the mediation.

Weldon’s property application, granting Ms Levitt a declaration that the parties did not have a de facto relationship and accepting her evidence that they were “boyfriend and girlfriend” ([3]) and that while they did have two children together they lived in the same house for less than one of the 16 years they had known each other.

Judge Riethmuller said (from [8]):

The Court said (from [33]):

“( … ) As the High Court … [said] in Masters v Cameron [1954] HCA 72 … [as to] heads of agreement … : a.

b.

c.

The parties may intend to be bound immediately, although desiring to draw up their agreement in a more formal document at a later stage; or They intend to be bound immediately, but do not intend to have … [it] take effect until … a more formal agreement; or They may intend to postpone … contractual relations until a formal contract is … executed ( … Chesire & Fifoot Law of Contract … 10th ed, 2012, 5.24).

[9] … The fact that … [an] agreement is informal … does not preclude it from being immediately binding. ( … ) Ultimately … it is a matter for the Court to determine the parties’ intention … objective[ly] … having regard to the language used and their conduct. ( … ) [15] … [T]he heads of agreement could [not] be considered a binding financial agreement ( … ) [17] The land … was held in part by the wife, yet the payment was entirely to the husband.

Without finalisation of the … [case] the wife was potentially required to transfer her interest … for the husband to receive $800,000 … without any certainty that the[ir] agreement … would become binding.

[18] In these circumstances, I am not persuaded that the heads of agreement were … binding … until … the … orders were made …

[29] … I am satisfied that the sons were ready, willing, and able to settle … and that … settlement did not proceed … because the husband sought … interest … prior to … the … orders … [thus] it is not appropriate that he be permitted to insist on interest … ”

Property – Parties not in a de facto relationship despite their lengthy sexual relationship and two children – Elias principle In Weldon & Levitt [2017] FCCA 3072 (11 December 2017) Judge Riley dismissed Mr

“The respondent was unemployed and in receipt of … [benefits] from 2001 until the present … She did not … tell Centrelink that she was in a de facto relationship. ( …)

[68] The applicant acknowledged … that the respondent alone bought Property B, Property C and Property A. …

[73] The applicant exhibited … an application for an intervention order … by a police officer … [in] 2014 on behalf of [the] respondent … [which] said that … the … [parties] were in a de facto relationship for about 12 … years ( … ) [115] In … Elias … (1977) FLC 90-267 Goldstein J held that the parties were bound by their statements to governmental authorities. (…)

[116] More recently, however, the Elias principle has fallen into disfavour. ( … ) [117] In Sinclair & Whittaker [[2013] FamCAFC 129 at [65]] the primary judge found that a de facto relationship existed, notwithstanding the applicant’s statements to governmental authorities and lenders that she was single.

That finding was not disturbed on appeal. ( … ) [120] The respondent’s child support application was … based on her claim that the … [parties] were not in a de facto relationship. (…)

[126] … [T]he respondent’s statement in an intervention order application … that the applicant was her former intimate partner tends to go the other way … it supports the proposition that the applicant was merely her boyfriend.

[127] The net effect … is that the court is required to look at all of the evidence, including statements to governmental authorities … and assess whether, in all the circumstances, the parties were a couple living together on a genuine domestic basis. ( … )”

Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, loose-leaf and online subscription service. thefamilylawbook.com.au. He is assisted by accredited family law specialist Craig Nicol.

Tromso, Norway

Ex Juris: Travel Tales from the Legal Profession Tromso Lots of lawyers have travelled to Tromso above the Arctic Circle in Norway in order to go dog sledding and view the northern lights, the Aurora Borealis.

In winter, the sun never rises and in summer, the sun never sets.

Late at night, you can wander the streets and take in the scenes made famous by Robert Barnard. Cruise ships regularly call at Tromso during the summer and for the adventurous, catch the Norwegian Post Boat in February. The Arctic

Australians are great travelers and lawyers are no different. Each month a reader of Brief tells us about their favourite travel destination.

cathedral, a modern church, stands aloft on the western side.

This surprisingly vibrant town of 70,000 people has lots to do in summer or winter. An unusual place to visit is the Macks Brewery and the Distillery within.

In a quirky mixture of old and new, you can scan a pot with your smart phone and play through Spotify the music that was being played when the spirit was laid down.

Tell us about your favourite (or not so favourite) destinations and why you travel there. Please send your contributions to brief@lawsocietywa.asn.au

45

Law Council Update

Recommendations to reduce disproportionate Indigenous incarceration must not be ignored The Law Council backed the Australian Law Reform Commission’s (ALRC) Indigenous incarceration report and warned that its compelling recommendations must not be shelved like those from the 1991 Royal Commission into Aboriginal Deaths in Custody report.

Many of the 35 recommendations released echo what has been heard in submissions to the Law Council’s Justice Project – including: •

•

•

•

•

•

Justice Targets – the Commonwealth Government, in consultation with State and Territory Governments, should develop national criminal justice targets to reduce the rate of incarceration of Aboriginal and Torres Strait Islander people and violence against them.

Justice reinvestment – all levels of Government should provide support for the establishment of an independent justice reinvestment body to promote the reinvestment of resources from the criminal justice system to community-led, placebased initiatives.

Repeal Mandatory sentencing – all levels of Government should repeal legislation imposing mandatory or presumptive terms of imprisonment upon conviction of an offender that has a disproportionate impact on Aboriginal and Torres Strait Islander peoples.

Bail and sentencing options – ensuring that these are culturally appropriate and include communitybased sentencing options.

Interpreter schemes – State and Territory Governments should work with relevant Aboriginal and Torres Strait Islander organisations to establish interpreter services within the criminal justice system where needed and monitor and evaluate their use.

Imprisonment for fines – fine default should not result in the imprisonment of the defaulter, and options should be developed which ameliorate the disproportionate effects of fines on Aboriginal and Torres Strait Islander people.

46 | BRIEF APRIL 2018

Law Council President, Morry Bailes said the disproportionate numbers of Aboriginal and Torres Strait Islander people in incarceration was a ‘national crisis’ requiring immediate action.

“It has been 27 years since the Royal Commission into Aboriginal Deaths in Custody found that Aboriginal and Torres Strait Islander people were imprisoned at seven times the rate of the general population, yet many of its 339 recommendations remain unimplemented,” Mr Bailes said.

“The ALRC report identifies that this figure has jumped to 14.7 times for Aboriginal and Torres Strait Islander men and a staggering 21.2 times for Aboriginal and Torres Strait Islander women.

“The ALRC report must not go the way of the past Royal Commission report where most of the recommendations are still gathering dust. The ALRC’s recommendations offer a renewed roadmap to end disproportionate numbers of Aboriginal and Torres Strait Islander people in incarceration.

“The proposed justice reinvestment strategies are vital to communities. For decades, research has shown that topdown approaches to social issues do not work and we know top-down approaches do not reduce recidivism, they perpetuate and often drive it.

“We must invest in communityled, partnership-driven approaches and programs to break the cycle of incarceration.” Mr Bailes added that in urgently progressing these recommendations it is important that Aboriginal and Torres Strait Islander leaders and communities are closely engaged at every stage.

Law Council applauds Senate's call for an end to court funding crisis The Senate has overwhelmingly passed a motion calling for adequate funding of the Federal Circuit Court and the Family Court, where parties can be forced to wait up to three years before final hearing.

In the last sitting fortnight ahead of the Federal Budget, the motion was cosponsored by Senator Griff (NXT), Senator Pratt (Labor), Senator Hanson (One Nation) and Senator Hinch (Justice Party) and supported by the Greens, Senator Leyonhjelm (Liberal Democratic Party)

and Senator Anning (Independent). The motion, which passed 39 to 27, included that: • •

•

The Federal Circuit Court and the Family Court have inadequate funding.

Inadequate resourcing of the family law system has created a snowball effect, the social and economic cost of which will be felt by the community for years to come.

A clear plan for the future is needed.

The motion also calls for the tabling of the 2014 KPMG report into the funding of the federal courts, and the Ernst & Young associated costings, prior to the Senate voting on the Family Law Amendment (Parenting Management Hearings) Bill 2017.

“This motion makes patently clear that the Australian Senate recognises our Federal Circuit Court and our Family Court are in crisis,” said Morry Bailes, President of the Law Council of Australia.

“On behalf of all Australians who will engage with our justice system, we urge the Government to heed the Senate’s concerns and provide our courts with the funding required to effectively fulfil their role.

“It is unacceptable that in a nation as prosperous as Australia, we are seeing families facing the prospect of being forced to wait up to three years before finalising cases involving disputes around children and property and allegations of family violence.

“These delays add unnecessary stress to what is likely a very painful and difficult time for the families involved.

“While the Law Council recognises the importance of the current Review of the family law system, we would urge the Government not to cite it as a reason to delay increasing funding.

“We are grateful the Senate has recognised the justice crisis and that it has expressed its collective view so powerfully today.

“The upcoming Budget is a chance for the Australian Government to recognise the crisis in our courts and take steps to ensure Australians have timely access to justice,” Mr Bailes said.

47

New Members New members joining the Law Society (March 2018)

Ordinary Membership Miss Natasha Dougall King & Wood Mallesons Ms Caitlin Moustaka Allens

Restricted Practitioner Mr Ashley Ang Clayton Utz Mr Ramesh Bajaj Peel Community Legal Services Ms Cordelia Coleman Ellery Brookman Pty Ltd Mr Michael Dias Clifford Chance Mr Kirk Dundo KD Legal Mr Morgan Hawkins Chapmans Barristers & Solicitors Mr Jeremy Heenan Butlers Barristers & Solicitors Miss Gabrielle Lindsay Milton Graham Lawyers Ms Jade Olynyk Jackson McDonald Miss Kerry Posthumus Patrick Legal Miss Marianne Schwartz Baldivis Law and Mediation Mr Tedros Yabio JDK Legal Services Pty Ltd Mr Vamanan Yogendran Morris, Alexander & Nelson

Associate Membership Mr Athir Al Asadi Murdoch University - School of Law Ms Lynette Avins Edith Cowan University - School of Business & Law Ms Dena Badawi Ms Anna Barningham University of Western Australia Law Faculty Ms Sophie Blades University of Notre Dame Australia Mr Steven Boughton Murdoch University - School of Law

48 | BRIEF APRIL 2018

Ms Georgia Cain Murdoch University - School of Law

Mr Kayne Leeson Murdoch University - School of Law

Mr Mitchell Rosario Murdoch University - School of Law

Ms Melissa Callanan University of Western Australia – Law Faculty

Ms Cinthia Lima Murdoch University – School of Law

Ms Caitlin Rumac Murdoch University - School of Law

Miss Jessica Cappendell Murdoch University - School of Law

Mr Eric Lund Edith Cowan University - School of Business & Law

Ms Jessica Cleasby Murdoch University - School of Law

Ms Shaleen Mahtani Murdoch University - School of Law

Ms Notre Dame Saez Gomez Galarza Charles Darwin University Law School

Ms Stuart Counsel Murdoch University - School of Law

Ms Iriaka Marshall Edith Cowan University – School of Business & Law

Miss Shayma Sorefan Murdoch University - School of Law

Miss Samantha Crkovsky Edith Cowan University - School of Business & Law

Miss Tanielle Martin Murdoch University - School of Law

Mr Sriram Srikrishnan Murdoch University - School of Law

Miss Georgia Curry Murdoch University - School of Law

Mr Kevin Mateiu Murdoch University – School of Law

Mr Chen Da Tan Edith Cowan University – School of Business & Law

Mr Jamie Davidson University of Notre Dame Australia

Ms Kathryn Muller Edith Cowan University – School of Business & Law

Miss Joycelyn Tang Curtin University – School of Business & Law

Mr Tayt Mumme Edith Cowan University - School of Business & Law

Mr John Theodorsen Curtin University - School of Business Law & Tax

Miss Andrea Neoh Price Sierakowski Corporate

Ms Kashmirra Thevar Murdoch University - School of Law

Ms Priscina Dharmadasa Murdoch University - School of Law Mr Alexander Gibson University of Western Australia Law Faculty Ms Grace Gilbert University of Notre Dame Australia Mr Troy Gittos Murdoch University - School of Law Ms Alexandra Goodman University of Notre Dame Australia Mr Sitara Grey Murdoch University - School of Law Mr Clifford Hughes Clifford Hughes & Associates (QLD) Miss Suzanne Kee Leo Cussen Institute trading as Leo Cussen Centre for Law Ms Lalita Kirilak University of Notre Dame Australia Miss Jessica Large Valenti Lawyers Mr Jordan Law University of Notre Dame Australia

Mr Jonathan Newson Murdoch University - School of Law

Miss Hannah Scallan University of Notre Dame Australia

Miss Emma Townsend RMIT University

Ms Analiza Obiasca University of Western Australia Law Faculty

Ms Amanda Turacchio Murdoch University - School of Law

Mr Jenee Peters Murdoch University - School of Law

Ms Zebelene Wates Charles Darwin University Law School

Miss Brenda Powell Murdoch University - School of Law

Ms Marnie Williams

Mr Nathanael Price Murdoch University - School of Law Miss Tabiha Raphael Curtin University – School of Business & Law Mr Quinton Roberts Murdoch University - School of Law

Miss Yih Ling Wong University of Notre Dame Australia Ms Dorlisa Wong Si En Murdoch University - School of Law Ms Jessica Woolcott University of Western Australia Law Faculty Mr Xiaosong Zhang University of Notre Dame Australia

2017 WA Lawyer of the Year Awards Winners (L-R): Nicholas van Hattem, Simon Creek and Alain Musikanth.

Photo: The Scene Team (www.thesceneteam.com.au)

THE LAW SOCIETY LAWYER OF THE YEAR AWARDS

Law Society Lawyer of the Year award recipients

In the lead up to Law Week, the Law Society invites members to submit entries to the Law Society Lawyer of the Year Awards.

The Law Society Lawyer of the Year Awards recognise practitioners who have made particularly noteworthy contributions to the Western Australian legal profession, over and above what might be reasonably expected through paid legal employment.

Do you know someone who could be th Law Society Lawyer of the Year?

Nominations for the Law Society Lawyer of the Year Awards are now open until Friday, 20 April 2018.

Law Society members are invited to nominate a worthy recipient in the categories of Lawyer of the Year (more than 5 years’ experience) and Lawyer of the Year (less than 5 years’ experience).

Winners are announced at the Law Week Awards Night and Cocktail Evening, hosted by Bankwest on Friday, 18 May 2018.

Practitioner with more than five years’ experience 2017 – Simon Creek and Nicholas van Hattem 2016 – Claire Rossi and Glen McLeod 2015 – John Fiocco 2014 – Melanie Cave 2013 – Thomas Percy QC 2012 – Denis McLeod and Clare Thompson 2011 – Shayla Strapps and Amanda Goodier 2009 – Steven Penglis 2008 – Dr Johannes Schoombee Practitioner with less than five years’ experience 2017 – Krista McMeeken 2016 – Michael Geelhoed 2015 – Callum Hair 2014 – Jessica Bowman and Stephanie Puris 2013 – Gary Mack

For full criteria and further information, please visit lawsocietywa.asn.au/law-week

2012 – Tammy Solonec 2011 – Breony Allen 2009 – Toni Emmanuel 2008 – Anna Rakoczy

Proudly sponsored by Lawyer of the Year

(less than 5 years’ PAE experience)

Lawyer of the Year

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lawsocietywa.asn.au Law Week 2018

49

Professional Announcements Career moves and changes in the profession

Kim Wilson & Co Family Lawyers

IRDI Legal

Cullen Macleod

Kim Wilson & Co Family Lawyers are pleased to announce that Elyce Lines has been appointed an Associate of the firm from 1 January 2018

We are pleased to announce the appointment of Daniel Papalia as Senior Lawyer.

Daniel, previously of Avon Legal, brings over ten years of property and corporate/ Daniel Papalia commercial law experience to IRDI Legal which enhances its client offerings.

Rebecca Bunney, Principal.

Cullen Macleod appointed Rebecca Bunney as Principal of our Family Law team effective from 1 July 2017. Rebecca Rebecca Bunney completed her articles at Freehills (now Herbert Smith Freehills) and joined Cullen Macleod in 2010. Rebecca started her career in commercial litigation.

This background, as well a degree in psychology, allows Rebecca to provide commercial and practical advice to her clients when dealing with parenting and financial matters, and binding financial agreements.

Elyce Lines

Fourth Floor Chambers

John Fiocco

David Thompson Joel Yeldon

Rachael Young

The above are pleased to advise that they are all practising as Barristers from Fourth Floor Chambers, together with Grant Donaldson SC and Steven Penglis. Contact us (08) 9221 4050 or email admin@fourthfloor.com.au

Chisholm Law

Shayla Strapps

Amanda Goodier Tony Caravella

Chisholm Law was lunched on 1 December 2017. The practitioners in the new firm are Shayla Strapps, Amanda Goodier and Tony Caravella.

Tony and Amanda recently completed terms as Members on the Administrative Appeals Tribunal (AAT). They have a combined total of 13 years’ experience deciding migration and refugee appeals with the AAT. Shayla recently worked as an arbitrator at WorkCover.

In 2011 while working for CASE for Refugees Amanda and Shayla were awarded the Law Society’s Lawyer of the Year Award.

Chisholm Law will specialise in migration law, but will also provide assistance in civil litigation, criminal, and family law.

Chisholm Law will assist clients in making applications for review to the AAT,and appeals to the Federal Circuit Court and Federal Court in decisions involving refusal or cancellation of visas, employer nominations, or citizenship.

50 | BRIEF APRIL 2018

We are also pleased to announce the appointment of Anna Liscia as Special Counsel. Anna, previous principal of Liscia Legal, brings over 30 years’ Anna Liscia experience in the areas of dispute resolution and corporate/ commercial law to IRDI Legal to complement and enlarge its client services.

Klimek & Wijay Family Lawyers Klimek & Wijay Family Lawyers is pleased to announce that Devin Sanghavi, an Associate Director of the firm, has completed the family law Devin Sanghavi accreditation process of the Law Society of WA and is accordingly an Accredited Family Law Specialist.

Devin joined the firm in 2014. He has extensive experience in a range of parenting and financial matters including those involving a high degree of complexity. n addition to family law, Devin has experience in areas with which family law commonly intersects such as conveyancing, wills and probate, restraining orders and criminal law.

Charles Docus, Solicitor.

Charles Docus is a dedicated practitioner who is passionate about hospitality and entertainment with a particular focus on the Small Charles Docus Bar scene. Since joining Cullen Macleod earlier in the year, Charles has shared a wealth of experience and knowledge and is an integral part of Cullen Macleod’s Hospitality, Liquor Licensing and Litigation teams.

Janie Plant, Solicitor.

Janie Plant joined Cullen Macleod in early 2017 as a Law Graduate, bringing with her extensive experience and knowledge of the IT Industry Janie Plant and IT Project Management.

Having recently been admitted as a Lawyer, Janie works in Cullen Macleod’s Wills and Estates, and Litigation teams.

Rothstein Lawyers Glen McLeod Legal We are pleased to announce that Caroline Foster has been promoted to Associate with our firm. Caroline represents clients in the areas of land compensation, planning and environmental appeals, clearing prosecutions and remediation of contaminated sites. Caroline’s contact details are: caroline@glenmcleodlegal.com and 08 6460 5179.

With effect from 1 December 2017 Mervyn Rothstein has stepped down as a partner of the firm he established some 20 years ago. Henceforth the firm will be conducted

by Sophie Manera through the medium of S Manera & Associates Pty Ltd trading as Rothstein Lawyers. Mervyn was originally admitted to practice in South Africa in 1970 and in Australia in 1989. Mervyn will continue with the firm as a Senior Consultant. All contact details remain the same.

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Warren Syminton Ralph is currently seeking a Senior Practitioner with their own client base to join the Firm as a Principal. The position is largely autonomous offering the ability to practice as you choose in a full service office environment in the company of other Senior Practitioners. Contact Alex Salvaris on (08) 9435 9435 for a confidential discussion.

BRIEF For advertising opportunities in Brief please contact: Madeleine McErlain Manager, Marketing and Communications T: (08) 9324 8650 E: advertising@lawsocietywa.asn.au lawsocietywa.asn.au

Missing Will Any person holding or knowing the whereabouts of the last Will and Testament of the late BRUCE GRAEME MARKS (DOB 03.03.1962, DOD 04.03.18) formerly of 4A Salvado Street, Cottesloe, please contact James Moss on (08) 9386 5200 or email legal@butlers.com.au within one month of the date of publication of this advertisement.

ALFRED JAMES PASSFIELD (also known as JIM PASSFIELD) late of 7 Chisholm Way, Balga, WesternAustralia and also 616 Lower King Road, Lower King, Albany, Western Australia died on 25 July 2017 at Nedlands, Western Australia.

Would any person holding the last Will and Testament of ALFRED JAMES PASSFIELD (also known as JIM PASSFIELD) or knowing the whereabouts of such last Will and Testament please contact the Public Trustee at 553 Hay Street, PERTH, WA 6000 on (08) 9222 6660 within one (1) month of the date of publication of this advertisement quoting reference DE 33146245 EM213. adcorp WG24102

Social Justice Opportunities Evening Thursday, 17 May 2018 6.00pm – 8.00pm (registration from 5.45pm) Parmelia Hilton Hotel 14 Mill Street, Perth Explore how law students and young lawyers can engage in the social justice space and understand the legal and professional skills required when embarking on related career pathways. Discover how you can get involved and learn how to become actively involved in the work of a diverse range of rights-focussed organisations. Speakers from a number of organisations will explain what they do and how you can get involved. Drinks and canapés are provided, with the opportunity to network with the panellists and a number of organisations that work in the human rights space in Western Australia.

Please join us for an evening of information, networking and refreshments.

Premium Sponsor

51

Events Calendar

With thanks to our CPD partner

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

APRIL 2018 Membership Events

CPD Seminars

Commencing Wednesday, 4 April Pilates – Six week course

Monday, 9 April The Essential Legal Assistant (Runs for 10 weeks)

Thursday, 12 April Society Club Sundowner Thursday, 19 April YLC Inter Profession Speed Networking Cocktail Event

Tuesday, 10 April Cyber security: Mobile device protection

MAY 2018 Membership Events Thursday, 24 May Sole Practitioner and Small Firm Forum Monday, 14 May Law Week Breakfast and the 2018 Attorney General’s Community Service Law Awards Tuesday, 15 May Law Access Walk for Justice Wednesday, 16 May Law Week Panel Presentation hosted by the Law Society’s Young Lawyers Committee

Thursday, 17 May Social Justice Opportunities Evening Friday, 18 May CPD Day for Country Practitioners Friday, 18 May Law Week Awards Night and Cocktail Evening CPD Seminars Wednesday, 2 May GST at Settlement Thursday, 31 May QPS Accreditation Workshop 1

JUNE 2018 CPD Seminars Thursday, 7 June QPS Accreditation Workshop 2 Friday 22 & Saturday 23 June Essentials of Advocacy and Negotiation

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8640.

For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8692.

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

52 | BRIEF APRIL 2018

LAW WEEK 2018

A FOCUS ON LAW AND JUSTICE IN THE COMMUNITY Embracing the law as part of our daily lives is important. From knowing our rights under the law, creating employment contracts, how a mediation works, through to setting up a business, having a will prepared or simply knowing what to do and where to go for legal assistance, the law plays a vital role.

Each year, Law Week showcases events which provide the opportunity for the community and the legal profession to engage in open dialogue and build a shared understanding of the role of law in society. It is an excellent opportunity for the profession to promote its role in enabling an open, independent and unbiased judicial system.

The Law Society of Western Australia showcases a series of events and information sessions focusing on law and justice in the community.

Save the Date • Law Week Breakfast and the 2018 Attorney General’s Community Service Law Awards, Monday, 14 May 2018, Parmelia Hilton Perth • The Law Access Walk for Justice 2018, Tuesday, 15 May 2018, Commencing in front of the Bell Tower on the CBD foreshore at Barrack Square, Elizabeth Quay • 2018 Annual Quiz Night organised by Pragma Legal at Subiaco Sports Club, Tuesday 15 May 2018 • Law Week Panel Presentation hosted by the Law Society’s Young Lawyers Committee, Wednesday, 16 May 2018, Supreme Court of Western Australia • Social Justice Opportunities, Thursday 17 May 2018, Parmelia Hilton Perth • Panel Discussion - My Culture My Story: Aboriginal Women Leaders in Law, Friday, 18 May 2018, Old Court House Law Museum, Perth • Law Week Special CPD Day for Rural, Regional and Remote Legal Practitioners, Friday 18 May 2018, Law Society • Law Week Awards Night and Cocktail Evening, Friday, 18 May 2018, Bankwest Place, Perth Visit lawsocietywa.asn.au/law-week for more information and to register for these events.

With thanks to Law Week supporters and sponsors

Lawyer of the Year Award: Less than 5 years’ PAE experience and Community Events Sponsor

Lawyer of the Year Award: More than 5 years’ PAE experience

Cocktail Evening Host Sponsor

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