Brief November 2019

VOLUME 46 | NUMBER 10 | NOVEMBER 2019

Interview with the Hon Justice Janine Pritchard

President of the State Administrative Tribunal

Also inside...

Address to the National Press Club: Human Rights Annualised Salaries and Set-off Clauses: Are They Worth the Trouble?

Lawyers Administering Justice Rebates – A Fraud on the Financier?

Nothing to Write Home About: Australia the Defamation Capital of the World

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Volume 46 | Number 10 | November 2019

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CONTENTS

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ARTICLES

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.).

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Interview with the Hon Justice Janine Pritchard, President of the State Administrative Tribunal

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Old Court House Law Museum: Conserving our Favourite Objects

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Address to the National Press Club: Human Rights

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2020 Council Nominations

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On Royal Commissions

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Annualised Salaries and Set-off Clauses: Are They Worth the Trouble?

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Nothing to Write Home About: Australia the Defamation Capital of the World

Communications and Design Officer: Charles McDonald

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Corrective Services Custodial Operational Policies and Procedures Project

Editor: Jason MacLaurin

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Lawyers Administering Justice

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Rebates – A Fraud on the Financier?

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Editorial Committee: Gregory Boyle, Thomas Camp, Jack Carroll, Dr Rebecca Collins, The Hon John McKechnie QC, Dr Pat Saraceni, Robert Sceales, 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.

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REGULARS 02 President's Report

42 Family Law Case Notes

04 Editor's Opinion

44 Drover's Dog

28 Taxing Matters: The High Court of Australia's Glencore Decision

45 Cartoon

35 Ethics Column: Being Retained

48 Classifieds

36 Federal Court Judgments

48 New Members

38 High Court Judgments

49 Events Calendar

46 Quirky Cases

President: Greg McIntyre SC Senior Vice President: Nicholas van Hattem Junior Vice President & Treasurer: Rebecca Lee Immediate Past President: Hayley Cormann Ordinary Members: Jocelyne Boujos, Nathan Ebbs, Ante Golem, Matthew Howard SC, Gary Mack, Denis McLeod, Jodie Moffat, Shayla Strapps, Paula Wilkinson, Joel Yeldon Junior Members: Jack Carroll, Brooke Sojan, Demi Swain Chief Executive Officer: David Price

41 Law Council Update 01

PRESIDENT'S REPORT Greg McIntyre SC President, The Law Society of Western Australia

Welcome to the November issue of Brief. Included in this Report are updates on the Law Society’s advocacy on issues of importance to the legal profession and wider community, as well as information on the results of the 2020 Council elections, upcoming Annual General Meeting and End of Year Celebration.

Council Elections Nominations for election to the 2020 Law Society Council closed on Wednesday, 16 October 2019. Congratulations to my 2019 Senior Vice President Nicholas van Hattem, who was declared elected as the Law Society’s President for 2020.

My congratulations also to Jocelyne Boujos, who was declared elected as Senior Vice President, and Rebecca Lee, who was declared elected as Junior Vice President and Treasurer.

Rebecca Bunney, Daniel Coster, Mark Hemery, Craig Slater and Brooke Sojan were declared elected as Ordinary members.

I look forward to working with the newly constituted Council and Executive in 2020 as Immediate Past President.

Voting for the Country Member to be elected for a two year term and three Junior Members for a one year term opened on Wednesday, 30 October 2019 and will close on Wednesday, 13 November 2019. You will find the candidate statements and photographs in this edition of Brief.

Annual General Meeting The Law Society’s Annual General Meeting will be held on Thursday, 21 November 2019 at 5.15pm at Level 36, QV1 Building, 250 St Georges Terrace, Perth.

The Law Society thanks Herbert Smith Freehills for allowing the AGM to be

02 | BRIEF NOVEMBER 2019

held at their premises and providing refreshments following the meeting.

An agenda will be provided electronically to members prior to the AGM. I hope to see you there.

Delays in the Family Court of Western Australia The Law Society has written to the Commonwealth Attorney-General, the Hon Christian Porter and State AttorneyGeneral, the Hon John Quigley MLA to request that the Commonwealth and State Governments give urgent consideration to the appointment of an additional Judge to the Family Court of Western Australia, to address the increasing difficulty with delays in the resolution of proceedings in that Court.

As members may be aware, the Commonwealth Joint Select Committee on Australia’s Family Law System is in the early stages of its inquiry and is not due to report until October 2020. In April 2019, the Australian Law Reform Commission published its final report on Family Law for the Future: An Inquiry into the Family Law System.

It is the Law Society’s view that the appointment of another Judge is needed to address delays in the Family Court of Western Australia now, before any future structural changes arising out of these inquiries have the effect of creating additional delays.

This does not detract from the fact that the Law Society is grateful to the State Government for acting efficiently to appoint Andrew Mackey as Family Court Magistrate effective from 29 July 2019.

Legal Aid Fees for Private Practitioners The Law Society is concerned that legal fees for private practitioners providing legal services to Legal Aid Western Australia have not increased for 10 years.

This has had the effect of compromising the quality of legal advice being provided and has created adverse implications for access to justice, as the current fees payable are contributing to a decline in the number of senior lawyers prepared to undertake Legal Aid work.

The Law Society has written to the Director of Legal Aid requesting that the issue be urgently addressed by: •

increasing the rates paid to private practitioners doing legal aid work, with a one-off immediate increase to the rate from $140 to $159 per hour; and

•

providing for the fees payable to be increased to at least half the rate of the Supreme Court Scale for five year post admitted practitioners as of 1 July 2020.

The Law Society also suggests that Legal Aid review the Criminal Law Cost Schedule – review of time allowances for private practitioners to ensure that fees are subject to regular increases and thereby prevent a similar situation occurring in the future.

End of Year Celebration I look forward to seeing you at the Law Society’s End of Year Celebration on Thursday, 5 December at The Westin, Perth.

The End of Year Celebration is a chance to gather with friends and colleagues and presents an opportunity to thank you, our valued members, for your engagement with, and support of, the Law Society throughout the year.

Members can attend for $35 and nonmembers for $55. Register online by visiting lawsocietywa.asn.au/event/endyear-celebration-2019.

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

Last month’s Editor's Opinion concerned the interesting times in which we live. This state of excitement (which we’ll1 come to later) has some time to run yet, and Brief continues to strive to present stimulating items, relevant to these interesting times. Indeed, just two editions ago Brief’s feature article was about Інформаторів.2 Some readers will recall when WA was the self-proclaimed “State of Excitement”, corresponding with its sesquicentenary, 40 years ago. The phrase could have just as easily sprung from events 50 years ago when Poseidon NL nickel shares shot from $0.50 through to $280 through October to December 1969, in the midst of a Vietnam War-caused nickel shortage, thus precipitating a boom/bubble in local and London stock markets.

For younger readers, this half-century old Poseidon Bubble may also explain why their parents and their parents’ friends seem to invariably have one or more beach houses down south, or ski cabins abroad.

Readers might also recall the “State of Excitement” moniker from car registration plates emblazoned with the phrase. If readers have cars dating back to that time and bearing such plates, please let the Editor know – he is still looking for a starter car for his eldest son.3 The “State of Excitement” motto may also have been a reaction to the unfair sledging of WA in the early to mid-20th century, as being afflicted by “W.A.T.F”, short for “WA Tired Feeling” (these initials probably now stand for something different, and more profane, in the Twitter-verse).

Newspapers from the time evidence the “W.A.T.F” sledge. A 1936 article, unfairly no doubt, referred to W.A.T.F and claimed it was suffered by WA Premier, then Lieutenant-Governor and later Governor, Sir James Mitchell4 – after whom the Mitchell Freeway is named.

The article refers to a 1920 incident where, in the Royal railway coach (which did, rather embarrassingly, de-rail) during the Prince of Wales’ visit, Sir James fell asleep “at two o'clock in the after-noon between Pemberton and Bridgetown”. Anyone with young children knows that this is exactly the time you hope they’ve fallen asleep on the drive back from the holiday house.5 Also recounted is when Archibald Prize winner Ernest Buckmaster was painting Sir James’ portrait. Sir James nodded off and when he awoke said to the artist: “Did I keep my hand perfectly still?". The painter replied

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"Quite," to which Sir James replied “Then I must be just about due for a rest.” This exchange is so utterly awesome there is a case for naming the entire freeway after Sir James.

methinks"11 probably had in mind more pressing concerns than whether she had misidentified/mis-pronouned herself or others.

D. H. Lawrence, whose novel about Australia, Kangaroo, is a classic, had similar things to say about WA, writing in correspondence that the people “were friendly, but slow as if unwilling to take the next step as if everything was a bit too much for them”.6

It would be particularly nice to see if “ye” could enjoy a revival, as its potential lyrical beauty has been sullied in modern times by only being seen as in “Ye Olde” (signifying a tourist trap), “Ye Olde English Tavern” (signifying a fake English Tavern)12 or otherwise portending an utterly kitsch night of awful/bawdy dinner theatre.

Some feel Kangaroo unfairly portrays the Australian character, and critics are divided about the novel. Whatever mixed feelings there may be about Lawrence’s writings concerning Australia it is unarguable that another of his works performed an intensely valuable service for many, by warning one to keep a close eye on the gardener at all times.

Brief congratulates Nicholas van Hattem upon his appointment as Law Society President for 2020, and all members declared elected to Council. Members are encouraged to vote in the open elections and hardly require the admonition to only engage in the first part of досрочное голосование часто.13

On another cultural note, the Editor was pleased to wrangle his children into seeing Shakespeare’s Hamlet at the pop-up replica Globe theatre.

This edition has, along with other items of interest, the Hon Chief Justice on Lawyers Administering Justice, containing a tribute upon the retirement of Kevin Pratt (well known to and admired by many readers), an interview with the Hon Justice Janine Pritchard, President of the SAT, the Hon Kenneth Hayne on Royal Commissions, Dr Matt Collins AM QC on Australia as the Defamation Capital of the World, Fiona Stanton on Claims Harvesting, Arthur Moses SC on Human Rights, Nicholas Ellery and Jack de Flamingh on Annualised Salaries and Set-off Clauses, Peter Beekink on Rebates, Greg Sikich on the Old Court House Law Museum and a Taxing Matters feature by Sam Radici on the High Court’s Glencore decision.

It was especially pleasing to use the occasion to dispel some misconceptions the youth of today are labouring under, such as the reason that Shakespeare’s original Globe attracted patronage from all classes, and indeed the masses, was because it offered free WiFi. Or, that Hamlet’s “To be or not to be” soliloquy7 was actually about Hamlet agonising over his choice of preferred pronouns.

“World Pronoun Day” was on 16 October, which had engendered8 hope that it involved lots of learning about parts of speech and fascinating things, like there being interrogative, possessive, demonstrative, relative, reflexive, and indefinite pronouns.

Alas (or zounds!) it seems pronouns are nowadays defined as “instruments of oppression” and things that can get you sued, pepper-sprayed, or excluded from polite woke society if you mess them up.

Nevertheless, as with many things, Shakespeare has something to say about, and a possible solution to, modern issues.

Apparently “modern” English used only four pronouns for directly addressing a person(s) (you, your, yourself, and yours)9 whereas Shakespeare’s time used ten pronouns: thou, thee, thy, thyself, thine, ye, you, your, yourself, and yours.10 Surely some of Shakespeare’s pronouns (thou, thine, ye (etc.)) are benign and incapable of causing offence – if there is such a thing today. Queen Gertrude, when saying "the lady doth protest too much,

Endnotes 1 Apologies if this is not a preferred pronoun.

2 Which most readers would immediately recognise, from their dealings with that country, as Ukrainian for “whistleblowers”.

3 Unfortunately, while a very promising Kia was in the running, it was pointed out that “Kia” is now also some other group’s preferred pronoun which the Editor’s son does not presently identify as, and so might be offensive to that other class of persons.

4 “W. Australia's Lieut.-Governor Can Go To Sleep Without Effort”, Smith's Weekly, 7/11/36.

5 Likely called “Poseidon’s Lodge” or some such.

6 Land of Vision and Mirage: Western Australia since 1826, G Bolton, 2008, WA Publishing.

7 Act III, Scene I (or in modern parlance, Series 3, Episode 1).

8 Terrible pun intended, but immediately regretted.

9 It seems now there are more such pronouns than the number of votes that have traditionally ensured a Brownlow Medal win.

10 “Thou and Thee, You and Ye, A Primer on Shakespearean Pronouns”, Michael J Cummins, shakespearestudyguide. com.

11 Hamlet, Series 3 Episode 2.

12 The only authentic part being beer lines not cleaned since Cromwell’s time.

13 This being, of course, Russian for “vote early and vote often”.

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State Administrative Tribunal

Interview with the Hon Justice Janine Pritchard, President of the State Administrative Tribunal Congratulations on assuming the Presidency. This must seem like full circle as you were Deputy President before joining the Supreme Court. How do you feel about the return?

I thoroughly enjoyed the year I spent at the State Administrative Tribunal (SAT) as a Deputy President when I was first appointed to the bench in 2009, and I was honoured to be given the opportunity to return to the SAT as its President.

Throughout my career, I have had a particular interest in public law, so I am very much enjoying working in the public law field again. It is a privilege to have the opportunity to contribute to the development of public law in this State, both by determining matters and publishing judgments which contribute to the jurisprudence of the SAT, and by being involved in the exercise of the SAT’s review jurisdiction, which provides an opportunity to contribute to the quality of administrative decision 06 | BRIEF NOVEMBER 2019

making. In addition, the wide scope of SAT’s jurisdiction (at last count, its jurisdiction was conferred by more than 150 pieces of enabling legislation) means that there is a huge variety of challenging and interesting work.

‘administrative law’ was a pejorative term. Yet in Australia administrative tribunals abound.

What do you see as their purpose?

I also feel very privileged to have the opportunity to work with the highly experienced judges and members of the SAT. We are ably supported by the SAT’s administrative staff, many of whom have worked with the SAT since it was established and who have a vast store of knowledge about its procedures.

When the Lord Chief Justice published The New Despotism1 in 1929, he was concerned about what he saw as the emerging tendency of the UK Parliament to enact legislation to increase the scope of executive authority, and to attempt to place it beyond the reach of the courts by conferring review powers on Ministers or administrative bodies.

He described this review jurisdiction as being exercised by anonymous officials, whose proceedings were not transparent and open to the public, who were not bound by the rules of evidence and who could disregard relevant evidence at will, and who were not bound to provide parties with a hearing, to enable them to test evidence or to make submissions.2

Finally, the role has also provided the opportunity for me to develop some additional skills in the management of the SAT, and I am enjoying the new challenges that that involves.

In The New Despotism, published 90 years ago, the Chief Justice Lord Hewart considered the expression

While this form of ‘administrative

review’ had been likened, in some quarters, to the system of ‘Administrative Law’ applying in continental Europe, especially in France, the Lord Chief Justice rejected that analogy: The ‘droit administratif’ is administered by real tribunals, known to the parties, and these tribunals apply definite rules and principles to the decision of disputes, and follow a regular course of procedure, though the rules and principles applied are different from those of the ordinary law governing the relations of private citizens as between themselves. Moreover, the tribunals give reasons for their decisions and publish them. In a word, the ‘administrative tribunals’ of the Continent are real Courts, and what they administer is law, though a different law from the ordinary law.3 In contrast, in the Lord Chief Justice’s view, the system of ‘administrative law’ emerging in the UK was not really a system at all, but is simply an exercise of arbitrary power in relation to certain matters which are specified or indicated by statute, not on any definite principles, but haphazard, on the theory, presumably, that such matters are better kept outside the control of the Courts, and left to the uncontrolled discretion of the Executive and its servants.4 The Lord Chief Justice regarded this ‘new despotism’ as being intended ‘to subordinate Parliament, to evade the Courts, and to render the will, or the caprice, of the Executive unfettered and supreme’.5 To say that there has been a significant development in administrative law in Australia (and in the UK) in the ensuing 90 years since The New Despotism was published would be something of an understatement. It is beyond dispute that tribunals are now an integral component of the Australian legal system (although some controversy still exists in relation to aspects of the composition or operation of some tribunals6).

Turning to the purpose of generalist tribunals like the Administrative Appeals Tribunal (AAT) and the SAT, one of the core purposes of such tribunals is to undertake merits review of administrative decisions.

That purpose can be traced back to 1971, when the report of the Commonwealth Administrative Review Committee (the Kerr Committee) noted that in view of the vast range of powers and discretions vested in the executive government and which could detrimentally affect a citizen, the ability to seek a review of the merits of such decisions was usually what an aggrieved citizen sought, and yet, as a general rule, a review on the merits was not available.7 The need for a system of merits review led to the establishment of the AAT and eventually the establishment of State administrative tribunals.

However, the jurisdiction conferred on many tribunals, especially State administrative tribunals which are not subject to limitations arising from the separation of powers under the Commonwealth Constitution, has extended far beyond the review of administrative decisions on their merits. It is common to see tribunals conferred with jurisdiction to make first-instance decisions, and to exercise the jurisdiction formerly exercised by inferior State courts in party-party disputes (for example in relation to residential tenancy disputes8). Another feature of the development of tribunals in more recent times has been the amalgamation of numerous miscellaneous tribunals into larger ‘super-tribunals’ which exercise jurisdiction under dozens, if not hundreds, of pieces of enabling legislation.

The SAT itself reflects these developments. Its establishment involved amalgamating the jurisdiction of nearly 50 industry and public sector boards and tribunals, and a number of courts. While SAT has a merits review jurisdiction, it also exercises original jurisdiction under numerous enabling Acts.9

In the second reading speech introducing the State Administrative Tribunal Bill in 2003 it was said that it would provide a modern, efficient and accessible system of administrative law across a wide range of areas. Do you feel the SAT has lived up to this promise?

The SAT has undoubtedly lived up to this promise. In each of the

last 3 years, between 6,800 and 7,245 applications have been filed in the Tribunal. The SAT deals with applications extremely efficiently: its clearance rate each year is close to 100%.

One of the main objectives of the SAT is to act as speedily and with as little formality and technicality as is practicable,10 and most matters in the SAT are resolved very quickly. In the last financial year, for example, the median number of weeks to resolve matters in each of the SAT’s four streams was: 12 weeks (commercial and civil stream); 21 weeks (development and resources stream); 9 weeks (human rights stream); and 7 weeks (vocational regulation stream). In large part, this is because the SAT’s case management processes are streamlined, and there is a heavy emphasis on facilitative dispute resolution, especially through mediation, to resolve disputes. Across the Tribunal, only 22% of matters are resolved following a final hearing.

As in any organisation, there is always room for improvement. One area of improvement currently being pursued is the development of an e-filing system for the SAT, which will enable the electronic filing of all documents.

I intend to pursue improvements in a number of other areas, with a view to making the SAT more accessible. I discuss these below.

It was also said that the SAT would be a Tribunal in which the public can seek redress without excessive delay, the need for legal representation or high costs. To what extent is that true today?

This remains true to a very large extent. I referred to the SAT’s timeliness in answer to question 3.

As for legal representation, in the last financial year, parties in the SAT were legally represented in less than a third of cases overall, and applicants were self-represented in the large majority of cases (73%). In some areas involving cases of greater complexity, such as planning or vocational regulation, it is more common for parties to be legally represented. However, even in these areas, applicants are self-represented in the majority of cases.

The frequency with which parties appear without legal representation

07

in the SAT reflects the informality, simplicity and flexibility of the Tribunal’s procedures. It also no doubt reflects the effect of the SAT’s statutory obligation11 to take such measures as are reasonably practicable to ensure that parties to a proceeding before it understand the nature of the assertions made in the proceeding, the Tribunal’s procedure, and any decision or ruling the Tribunal makes in the proceeding.

As for costs, in most areas of its jurisdiction, the SAT continues to operate from the starting point that the parties bear their own costs.12 Even in cases where costs may be awarded, the fact that the SAT resolves matters quickly has an important flow-on consequence in minimising the overall ‘cost’ of the proceedings to the parties – both in the cost of any legal representation, and in the personal toll (in time and emotional energy) which litigation can take.

SAT has 3 judicial members, 4 senior members, 14 members, 50 senior sessional members and 40 sessional members. Are these resources sufficient to perform its functions officially?

Over the last few years, as the SAT’s annual reports confirm, the SAT has met its key performance benchmarks for the timeliness of its resolution of disputes. That suggests that the number of judges and members presently appointed to the SAT is adequate. However, the SAT’s workload is increasing over time, for two reasons. First, a significant proportion of the applications received by the SAT are applications for guardianship and administration orders. As our ageing population increases, the number of these applications will inevitably increase.

Secondly, the SAT is continually being conferred with additional jurisdiction.

The ongoing challenge for government is to ensure that any conferrals of additional jurisdiction, both individually and cumulatively, are matched by such additional resources as may be required to reflect any increase in the SAT’s workload. By way of example, it is anticipated that the additional jurisdiction conferred on the SAT under the Strata Titles Act 1985 (WA) as a result of the amendments made by the Strata Titles Amendment Act

08 | BRIEF NOVEMBER 2019

2018 (WA), will result in a substantial increase in the number of applications lodged in the SAT. At present, no additional resources have been allocated to the SAT to deal with that anticipated increase in its workload, so the implications of that additional jurisdiction will need to be very carefully monitored.

for written reasons for every one of those decisions to be published. That is expressly recognised in s 79 of the SAT Act which provides that a written transcript of that part of the proceedings in which the decision or reasons are given orally is sufficient for any provision of the Act which requires the decision or reasons to be in writing.

The SAT’s sessional membership is not a panacea for increases in the SAT’s workload. Although the SAT has a large number of sessional members, it has a limited budget to spend on its sessional members each year (equivalent to 3 full time member positions). For that reason, sessional members are usually only listed to sit on matters when they are able to provide a specialist expertise or perspective that the SAT’s permanent members are unable to provide. Most of the SAT’s budget for sessional members is expended on those of its sessional members who have specialist qualifications relevant to matters in the vocational regulation stream (where enabling legislation often requires that a member from the relevant profession be listed as part of a panel to hear the matter) or in building, planning or guardianship matters where the expertise of the members can assist the SAT to quickly understand and deal with the issues in dispute.

However, I am conscious of the fact that the publication of written reasons for at least a proportion of the decisions made by the SAT is important, for a variety of reasons.

Reasons for decisions in matters of particular significance or interest should be published, so that the community can see how the SAT reached its decision. In addition, the publication of reasons is important to develop the jurisprudence of the SAT; to provide guidance to parties on how enabling legislation is interpreted and applied; to demonstrate the transparency of the SAT’s processes, consistent with the principle of open justice; and to ensure the consistency of the SAT’s decisions. For that reason, I have encouraged the judges and members of the SAT to publish more of their reasons, and that is now being seen in the number of decisions published on the SAT’s website.

By mid-July 2019 SAT had published 50 decisions. Is this output reasonable in your view?

Each year, the SAT’s judges and members make thousands of decisions in the determination of applications made in the SAT. In those cases where a final decision is made, the SAT is subject to an express statutory obligation to give reasons for its decision.13 In some cases, it will be appropriate for the SAT to reserve its decision and to publish written reasons.

However, where possible, judges and members will deliver oral reasons ex temporaneously. (By way of example, almost 4,000 guardianship and administration applications are dealt with each year, and all of these require a hearing, followed by a final decision for which reasons must be given. In the large majority of cases, these reasons are given orally).

The sheer volume of decisions that the judges and members of the SAT make each year is such that it is not possible

What do you hope to achieve during your term?

My overall objective is to work with the judges, members and staff of the SAT to ensure that the SAT is one of Australasia’s leading tribunals.

At its most basic, that objective must be met in the manner in which the SAT deals with each application which comes before it. For many individuals in our community, their only interaction with the justice system may be through proceedings in the SAT – whether to resolve a civil dispute (for example, a building dispute), or to challenge a decision of an administrative decision maker, or to seek the exercise of a particular power vested in the SAT (such as the appointment of a guardian or administrator for a family member who has lost the capacity to make their own decisions). I want to ensure that all of those who are involved in proceedings in the SAT feel that they have been treated with respect, that their complaints or concerns have been genuinely heard, that they have been given a fair hearing, and that the proceedings have been resolved as

quickly as possible.

Looking beyond individual cases, however, I would like to focus on some improvements in the following areas. First, in my view, it is important for the SAT to have a greater regional presence. Commencing in 2020, the SAT will be listing more regular hearing days in regional centres. In addition, I hope to be able to explore how technology might assist the SAT to conduct more simple hearings, and mediations, remotely, to regional areas, especially through the use of videoconference (VC) technology.

Although the SAT itself has excellent VC technology, the use of VCs is often restricted because of limitations in the internet access and capabilities of the parties to SAT proceedings, especially parties in regional areas. It is important that the SAT explore what assistance can be provided to parties to overcome any such difficulties.

Secondly, I am concerned to ensure that the SAT is readily accessible to all members of our community.

Amongst other things, this requires an assessment of whether, and how well, the SAT is accessible to indigenous Australians, to those from culturally diverse backgrounds, and to those who have a disability. The next step will be to adopt measures to overcome difficulties experienced by parties in pursuing proceedings in the SAT. Such measures may include improving the accessibility of the SAT’s website, providing easy to access information about commencing and pursuing proceedings in the SAT, such as through the use of information sheets and short videos (and by providing such information in a variety of languages apart from English), and by conducting information sessions for the public.

Finally, I want to encourage innovative thinking about how the SAT’s work can be more effectively and efficiently undertaken – by seeking feedback from our staff and key users and stakeholders, and by drawing on different approaches used in other tribunals around Australia.

Is there anything else you would like to add?

I welcome constructive feedback from the Law Society and from practitioners as to how the SAT’s processes and procedures could be improved.

Endnotes 1 2 3 4 5

6 7 8 9 10 11 12 13

Rt Hon Lord Hewart of Bury, The New Despotism, London, 1929.

Ibid 44 - 44.

Ibid 45.

Ibid 45 - 46.

Ibid 17. The Lord Chief Justice’s reference to despotism in this context appears to have been a nod to the views of AV Dicey, who regarded the system of droit administratif as protecting executive power from supervision by the courts, an outcome which he had described as ‘despotic’: see AV Dicey, Introduction to the Study of the Law of the Constitution, 10th ed, Macmillan, 1959, 345.

See, eg, Hon I.D.F Callinan AC QC, Report on the Statutory Review of the Tribunals Amalgamation Act 2015 (Cth) [10.31] - [10.36].

Report of the Commonwealth Administrative Review Committee (Parliamentary Paper No 144, August 1971) [11], [58].

See, eg, Residential Tenancies Act 2010 (NSW) s 187.

State Administrative Tribunal Act 2004 (WA) pt 3.

State Administrative Tribunal Act 2004 (WA) s 9(b).

State Administrative Tribunal Act 2004 (WA) s 32(6).

State Administrative Tribunal Act 2004 (WA) s 87(1).

State Administrative Tribunal Act 2004 (WA) ss 74, 77.

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Experience – C onfidence – Trust

09

Address to the National Press Club: Human Rights Speech delivered by Arthur Moses SC, Law Council of Australia President at the National Press Club, Canberra 4 September 2019

Press freedom is a matter that is important to all Australian citizens. Not just to politicians or lawyers or journalists.

But all who call our nation home, and contribute to building and upholding the way of life we cherish.

Liberty is not a word we use very often in Australia. Our national anthem speaks instead of being “free”.

We have – all of us – a responsibility to contribute to its protection.

But Lincoln’s words should resonate with us and challenge each of us. Because we too could use a better definition of what we understand freedom and liberty to mean in Australia.

Australia is a great nation where respect for human rights and liberty underpins our way of life and opportunities in life.

These rights have been hard-won but are easily eroded. Complacency – and good intentions – can be as dangerous as illintent.

US President Abraham Lincoln once said “The world has never had a good definition of liberty, and the … people, just now, are much in need of one”.

“We all declare for liberty,” he continued.

“But in using the same word we do not all mean the same thing”.

10 | BRIEF NOVEMBER 2019

If we do not agree on what we mean, then how can our policy-makers and parliaments protect it?

Australia is in dire need of a national discussion about the importance of human rights and freedoms in our country.

How as lawyers or journalists, politicians or citizens can we best protect them.

The Law Council welcomed the release of the draft Religious Freedoms Bill for

public consultation. Not because we necessarily agree with the government’s approach or with every provision. But because this provides an opportunity for a discussion that is long overdue about what type of nation we want to be.

An inclusive, tolerant and harmonious nation? A nation where people are vilified because of their sexuality in the name of religion? We need to get the balance right to ensure that there are no unintended consequences.

Reasonable minds may differ about how we balance competing rights.

As a starting point, we need to have a clear definition of what we understand freedom and liberty to mean. We also need to be very clear what we understand by the word “security”.

Because when we baulk from these discussions, as our nation has done in recent times, I fear we are heading down a slippery slope.

After 9/11, in efforts to preserve our rights and freedoms, governments here and around the world found themselves

increasingly encroaching upon them.

This was done in good faith, not with ill intent. Protecting our community and the safety of our people must be the government’s priority.

But our Parliament is also the guardian of the rights and freedoms of Australian citizens.

In this it is aided by the media, which plays a key role in defending the public interest and scrutinising the exercise of power. The media is not the enemy of our nation, nor should the actions of journalists in scrutinising government be criminalised.

These responsibilities of the government, parliament and media should not be taken lightly.

Over centuries, through the work of great philosophers such as John Locke (English 1600s), the notion developed that human rights are inherent to who we are as humans. They are not rights given by the State but rather to be protected from the State.

This concept of inherent and inalienable rights is found in the first article of the UN Declaration of Human Rights: “All human beings are born free and equal in dignity and rights”.

The common law too has placed a premium on rights and freedoms and been reluctant to limit them.

This is known as the principle of legality.

The principle presumes that parliament does not intend to abrogate rights and freedom unless there is a clear intention to do so.

As former Chief Justice of the High Court, Murray Gleeson explained it:1 Courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.

But with a proliferation of statutes with a clear intention by parliament to abrogate rights and freedoms we can no longer rely on this principle to protect them.

Since September 11, about 75 pieces of federal national security legislation have been passed.

And there has been a slow erosion of our freedoms.

The impact has been creeping.

In isolation, barely noticeable.

This year’s media raids shone a powerful light on the limits of freedoms – of people and of the press – in Australia.

The Law Council has said that all national security and secrecy legislation should be reviewed and reconsidered to ensure it is appropriately calibrated.

While protecting our community must always be a priority for the government, this must be considered in conjunction with potential impacts on human rights and freedoms.

Proportionality is key. Speaking in 2015 on this challenge of balancing security and individual liberty, then Prime Minister Malcolm Turnbull said “while we are – and always will be – facing new and evolving threats to our national security, our forebears have faced far greater

Australia is in dire need of a national discussion about the importance of human rights and freedoms in our country. ones”.2 This is not a new challenge by any means. But it is a challenge we have stopped talking about as a nation. Many politicians on both sides of politics have informed me that they do not want to question laws purportedly made in the name of national security even though they have concerns about overreach.

They don’t want to be accused as being un-Australian or endangering national security so they have waved legislation through the Parliament without testing it.

The rhetoric of calling those who disagree with your views about national security as un-Australian or not being concerned about national security is

a way of avoiding having to explain and justify why laws are needed which take away the rights and freedoms of Australians.

The AFP’s June raids on Australian journalists were a stark example of how far the pendulum has swung. The raids were not the fault of the AFP, or the agents whose images were televised.

They were investigating offences which had been created by the Federal Parliament. It is their job to do what they were doing – the problem is the law.

The raids remind us why we must never stop talking about human rights in the context of national security.

A free, independent press is a critical safeguard of human rights.

The United Nations Human Rights Committee has said that “A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other…rights. It constitutes one of the cornerstones of a democracy”.3 Until the raids Australians for the most part believed press freedom was protected by law. They were wrong.

Since 9/11, Australia’s national security provisions have developed inconsistently, in an environment of increasing powers to intercept and access data.

This has exposed the media because of its role as the fourth estate.

Public interest journalism must be protected.

Disclosure of classified information by the media should only be criminalised if it can be proven to have posed real harm to national security.

For this reason, the concept of ‘harm’ must be clearly defined in section 122 subsection 4A of the Criminal Code.

It must be more than just embarrassment to government or some bureaucrat being humiliated because of a grand plan to acquire more power has been exposed.

This would help protect against overuse and arbitrary use of executive power.

Though a public interest defence currently exists in section 122 subsection 5 of the Criminal Code, it is poorly defined.

And the Law Council believes a public interest defence is not sufficient to safeguard press freedom.

The onus should be on the prosecution – not the journalist – to establish that 11

the disclosure was not in the public interest in relation to the publication of the journalist. If this offence is to remain, then for example the government should be forced to prove in open Court why it was not in the public interest for a journalist to expose the fact that an agency was seeking more powers to access personal details of citizens without their consent. The absurdity of the government taking such position would soon become clear and be met with a response by the community at the ballot box.

Journalists and supporters of a free press are rightly alarmed and have been vocal about this creeping erosion of media freedoms.

But for the most part there has not been the same awareness or response to the chipping away of other rights and freedoms we often take for granted.

paramount but the moment we undermine our own rights and freedoms is the moment our enemies win.

security without testing them can result in overreach and the erosion of basic freedoms.

We must not be afraid to have these discussions. A culture of silence on some of the most critical issues does the nation a great disservice.

It is possible to defend the rights of citizens and prosecute the interests of our nation. These two concepts are not contradictory but complimentary.

Regrettably, some have forgotten this in the rhetoric associated with national security legislation.

Do not be Quiet Australians.

So let me throw down this challenge today.

To journalists, to policy-makers, to government, to lawyers.

Question threats to all rights and freedoms, not just those that are threats to your freedoms.

That is not your job.

And do not assume because there are many other Quiet Australians that they are not concerned about these matters.

They are, and they rely and they depend on you.

The Australian Law Reform Commission highlighted in 2015 that many rights with a long and distinguished heritage have been chipped away.

Through laws that reverse the legal burden of proof and interfere with the presumption of innocence until proven guilty.

These incursions have gone largely unreported.

Do not be afraid to have these discussions – and challenge those who would seek to shut them down.

Laws that interfere with freedom of association or assembly, whether counter-terrorism, criminal or migration laws.

National security must always be

Enacting laws in the name of national

Laws that impinge on the right to a fair

12 | BRIEF NOVEMBER 2019

trial by protecting certain confidential communications, even from a defendant seeking those to help prove their innocence in a criminal trial.

When words like the rule of law or freedom or security are thrown around carelessly like confetti, they become white noise.

Laws that impose strict or absolute liability on one or more elements of an offence despite the traditional presumption that intent or knowledge an act is wrongful is necessary to found criminal liability.

We fail to stop and reflect on what the words mean – and why they are important.

Coercive information-gathering and investigation powers of agencies that abrogate the privilege against selfincrimination.

Laws that retrospectively change rights and obligations.

That remove the common law duty to afford procedural fairness to people affected by power exercised by a government official. Restricting access to the courts and tribunals to challenge administrative decisions which may be unlawful or unfair. Expanding broad Executive decision-making powers, which can determine people’s outcomes but do not lend themselves to judicial review. This is but a small list.

Many may seem technicalities. But taken together, a concerning picture emerges.

There has been a trend in recent years of parliamentarians tripping over themselves to enact laws in the name of national security without understanding the effect of these laws on our media or the rights of innocent citizens.

The result is an erosion of rights and freedoms taken for granted over centuries.

The rule of law means no one is above the law.

It means government decisions are made according to known rules, are not made capriciously.

It is embodied by fairness and transparency. Illustrated through accountability.

All people, no matter where they are from or what they do, are equal before the law.

Can this be said of modern Australia?

Our leadership on the world stage remains fundamental as we face an uncertain global future for human rights.

We cannot lead with credibility or integrity unless we put our own house in order.

It would be alarmist to say our democracy is under threat. But we must always be vigilant.

In 1939, Sir Robert Menzies said: “The greatest tragedy that could overcome a country would be for it to fight a successful war in defence of liberty and to lose its own liberty in the process”.

Ours is a way of life the envy of others the world over.

It is worth protecting. And we must do so together because there is no them and us in this endeavour. We are all Australians.

We are the only western democracy without a Charter of Rights or Human Rights Act.

Endnotes

The Law Council believes a Charter of Rights would offer a coherent legal framework to express and protect rights and freedoms.

2

To promote the universal, indivisible nature of human rights, inherent in the Australian psyche but strangely not its law.

1

3

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, 492 (Gleeson CJ), citing Coco v The Queen (1993) 197 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ). https://www.malcolmturnbull.com.au/media/speechto-the-sydney-institute-magna-carta-and-the-rule-oflaw-in-the-digit.

‘General Comment No. 34’, Human Rights Committee, 102nd session, Geneva 11-29 July 2011, https:// www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf.

And provide a vehicle to balance tensions between freedom of speech, freedom of the press, public safety, national security, and other fundamental human rights.

Our Constitution provides minimal protections.

Lawyers and politicians often refer to the rule of law as though that was the start and end of the argument.

A Charter of Rights would set out a clear list of fundamental rights, values and freedoms that deserve legal protection.

We forget the term is not well understood, even amongst ourselves.

Australia has a proud history in the development of human rights.

Gifts in Wills help us fund Research

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Prevention

Australia will become the first country to effectively eliminate cervical cancer if vaccination and screening rates are maintained1. Our daughters and granddaughters will likely live in a world that is free of cervical cancer thanks to Professor Ian Frazer AC, former VicePresident and President of Cancer Council Australia and our investment in cancer research.

Gifts in wills make a real difference. When writing a Will for a client please ask them to consider including a charitable gift.

To find out more contact us on 08 9212 4333 or visit cancerwa.asn.au.

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13

Annualised Salaries and Set-off Clauses: Are They Worth the Trouble?

By Nicholas Ellery, Partner, Corrs Chambers Westgarth and Jack de Flamingh, Partner, Corrs Chambers Westgarth

Recent high profile cases involving alleged underpayment of employee entitlements have focused attention on whether employers can rely on set-off clauses in common law contracts, and other forms of annualised salary arrangements, in order to meet their award obligations.

In addition, the Fair Work Commission has recently published new ‘annualised salary clauses’, intended to be adopted in a wide range of modern awards.

These developments come at a time when employers are relying less and less on enterprise agreements as a means of regulating terms and conditions, and are instead focusing more on awards for this purpose.

Awards can, however, be complex instruments, and may not be particularly well-adapted to the circumstances of a 14 | BRIEF NOVEMBER 2019

particular enterprise. This leads many employers to seek to rely on flat ‘salary arrangements’, or ‘all-in rates’ in order to avoid having to manage the complexities of hourly rates, overtime, allowances and other obligations that can arise under the award system or under some enterprise agreements. Under such arrangements, employees receive a rate of pay that is equal, or superior, to the rate required

by the relevant industrial instrument, but without the shift-to-shift or week-to-week variations that can arise under the award/ agreement model. This may appear to be a win-win option for both employer and employee: for the employer it is administratively less complex, whilst for the employee it means that there is greater predictability in income flow.

Below, we explore some of the ways in which such arrangements can be put in place, and identify some potential compliance risks associated with their use. The options that are most commonly adopted are: •

common law contracts of employment containing a ‘set-off’ clause; or

•

an annualised salary arrangement such as those provided for in some awards.

This article is framed in terms of setoff of award entitlements, but it is important to appreciate that it is also possible to adopt similar contractual arrangements for employees whose terms and conditions are regulated by an enterprise agreement, and to include annualised salary provisions in enterprise agreements.

Set-off clauses It is well established that an employer and employee can lawfully agree in a common law contract to an arrangement where the employee is paid a rate of pay (typically expressed as a salary) that is higher than the base rate required by the relevant award, and expressly agree that the ‘over award’ component of that pay arrangement will be treated as having met the employer’s obligations to make other forms of payment that may arise under an award, such as overtime, weekend penalty rates, leave loading, and allowances.

It is of the utmost importance, however, to ensure that any contractual provision of this kind is carefully drafted to achieve this lawful outcome.

The lawfulness of such arrangements was most recently re-affirmed by a Full Court of the Federal Court in Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate.1 In this case, the Full Court explored in detail the history of decisions of various courts and tribunals, (dating back to the decision in Ray v Radano in 1967),2 testing whether or not set-off clauses were valid and/or could be relied on in practice.

The Full Court was of the clear view that such clauses were valid and could be relied upon so long as they were appropriately drafted, and that the amount of money being paid was sufficient to fully meet the employer’s award obligations. In particular, the Court found that where the employer and employee have agreed that the salary payment can be applied against specific award payment obligations, then the clause should be given effect.

By way of illustration, where an employer and employee have agreed that the salary rate of pay was to be applied to cover and offset against all obligations arising in relation to overtime, weekend and night penalty rates, then the salary rate of pay can be applied to meet those award obligations.

What can and cannot be offset?

The pay rate can only be applied to

offset or meet the obligations that have been identified in the contract. It is not, for example, possible to lawfully provide that the rate serves to meet one specific award obligation, and then later try to argue that it meets a different award obligation.

Therefore, if a contract designated that part of the salary was to cover leave loading and overtime obligations, and made no reference to some other entitlement such as weekend penalty rates, the employer could not offset that part of the salary against weekend penalty rates.3

What level of specificity is required?

It is not necessary that the parties use precisely the same language in the contract to match every single award obligation that the payment is intended to cover. There should be a ‘close correlation between the nature of the contractual obligation and the nature of the award obligations. But it is not necessary that the same label be used…’.4 As long as the concepts are broadly the same (e.g. payment for hours of work performed, or for work performed on weekends etc.) then generally this will be sufficient.

It is common practice for set-off clauses to list a range of specific award obligations in detail, but provide that the salary can also be used to set off any other payment obligations or entitlements. Sometimes this can be done by listing specific award clauses by number and title. This has the attraction of clarity and certainty, but can become problematic if/when the award itself is amended, or more than one clause is (or becomes) relevant to the particular entitlement.

It is also possible, and could provide more certainty, for a contract to nominate a specific monetary or percentage allocation of the salary to specific award entitlements (e.g. ‘$1.50 of the hourly rate is allocated to meet the obligation to pay the remote site work allowance under clause X of the ….award’). This is, however, notoriously difficult to achieve in practice, as it is often very hard to be clear about exactly what value can be attached to a particular award entitlement for every pay period. Furthermore, some award entitlements are calculated by reference to other award entitlements, and of course the value assigned to a particular entitlement within the award may vary as and when the award is varied.

Payment within a pay period, and time and record keeping Awards will generally require certain payments to be made within a nominated pay period or roster cycle (which can often range from one week to four weeks in duration).

Therefore, the employer must satisfy the award payment obligation for each and every pay period or roster cycle. It cannot rely on a ‘over award’ payment in another pay period/roster cycle to satisfy the obligation from an earlier pay period/ roster cycle.5 This is an issue that causes many setoff arrangements to come unstuck, particularly if there are substantial fluctuations in award pay entitlements from one pay period to another. The salary level must be sufficient to cover the employee’s award entitlements for every period. If the salary falls below the award entitlement in a given period, then the employer will be in breach of the award in respect of that period. The fact that the shortfall was ‘made up’ in another period will be of no avail to the employer.

Furthermore, if the employer has limited or no records of time actually worked, it becomes more difficult to show that the award obligations were in fact satisfied for each pay period.

In addition, under the Fair Work Act 2009 (Cth) (FW Act) and the Fair Work Regulations 2009 (Cth)6 employers are obliged to keep various records (and to provide detailed payslips to employees).

This can include an obligation to record and/or show the number of overtime hours worked, any averaging of hours agreements, the number of ordinary hours worked, and similar matters.

Failure to observe these requirements is one of the most common forms of employer breach of the FW Act. Further, as a result of 2017 amendments to the FW Act, where the employer was required to keep such records but failed to do so, in circumstances where there is an alleged breach of provisions such as those relating to the National Employment Standards or an award or an enterprise agreement, a reverse onus applies such that the employer is obliged to disprove such the allegation.7

Appropriation argument In some instances, the courts have determined that where an over-award rate of pay is paid, but the contract does not specifically allocate the overaward component to a particular award 15

obligation, it is open to the employer to ‘appropriate’ part of that component to meet a particular debt under the award, simply by asserting that the money paid is now relied on to meet that particular obligation.8 This approach arises from general common law principles of creditor obligations: the creditor can choose to attribute the over-award payment to a particular part of a debt or obligation (assuming that the overaward component has not already been assigned elsewhere).

Suppose, for example, a salary of $1000 per week is paid. The base rate for the employee under the award is, say, $800 per week, and the employee should also have received $100 in penalty rates and $50 for allowances for that week (under the award). The contract is silent on whether the extra $200 was intended to meet or be set off against any particular award obligation. If a claim was made alleging underpayment and/or breach of award obligations, the employer may be able to appropriate $100 out of that extra payment towards meeting the obligation

16 | BRIEF NOVEMBER 2019

to pay penalty rates, and similarly, $50 towards the allowances obligation.

It is important to note that this defence relies on the employer being able to appropriate the amounts to the relevant debt arising under the award, and that the amounts have not already been appropriated (by conduct of the parties, or by a declaration by either employer or employee, or in some other way) for some other purpose. It is not, therefore, a particularly reliable defence to rely upon in the face of alleged failure to meet award obligations.

This issue is presently the subject of consideration by the Full Federal Court in the ‘casual employee test case’ of Workpac Pty Limited v Rossato.9 These proceedings concern a claim by a nominally casual employee, Mr Rossato, for entitlements payable to continuing employees (e.g. annual leave and notice of termination). Workpac contends that the casual loading that was paid to Mr Rossato may be set-off against the entitlements claimed by him in the event that he is found to be a continuing

employee. This is despite the fact that, as was the case with Mr Rossato, the parties could not have intended to provide for the entitlements payable to a permanent employee since they did not regard him as such! The case was heard in May 2019 and a decision is expected within the next few months.

Unjust enrichment claims?

A further option that may be available in underpayment cases is the argument that an over-award payment constituted an ‘unjust enrichment’ of the employee such that (s)he should be required to repay the employer. In Rossato for example, the employer argued that the casual loading payment to Mr Rossato was paid on the mistaken belief that it would satisfy the legal obligations of the employer to provide for permanent employment entitlements.

The ‘unjust enrichment’ principle is well established. It is, however, subject to an exception where the person who has been unjustly enriched is able to

demonstrate that paying the money back would be unjust.10 It remains to be seen whether the Full Court in Rossato will accede to the employer’s argument. In the meantime, employers should treat this line of defence with caution.

ordinary and overtime hours can be worked without requiring a payment higher than the annualised wage; •

Award annualised salary arrangements As noted earlier, some awards contain provisions or mechanisms that allow for some form of annualised salary to be paid to an employee instead of the more traditional award approach of paying a flat wage, plus various additional amounts such as overtime, penalties, allowances etc.

Awards with these provisions include commonly applied awards such as the Clerks – Private Sector Award 2010, the Banking, Finance and Insurance Award and the Mining Industry Award 2010.

Many of these clauses were reviewed recently, and proposed or ‘model’ new clauses were published by the Fair Work Commission in the 2019 ‘Annualised Wage Arrangements’ decision, published on 4 July 2019.11 The new clauses are yet to be included in the awards that presently have annualised salary provisions, but it is anticipated that that will occur in March 2020. The precise terms of the proposed new terms vary, but in some instances they will be highly prescriptive and difficult to administer in practice. For example, some of the more prescriptive terms include requirements that: •

employees be advised in writing of the details of the annualised wage, including how it has been calculated (specifying which award obligations are included in this calculation), and the ‘outer limit’ of how many

•

an annual review be undertaken to ensure the employee was paid at least as much under the salaried arrangement as if they had simply been paid according to the standard award terms; and a written record be kept of all start and finish times, and of unpaid breaks, which is signed or acknowledged in writing in some way by the employee ‘each pay period or roster cycle’.12

These requirements are potentially so onerous that many employers may question the utility of reliance upon annualised salary provisions in awards in the first place.

The Fair Work Commission itself has made clear that an employer and employee are not obliged to rely only on an award annualised salary arrangement – they can choose to apply the normal common law contract with a set-off clause, as described above. As the Commission stated: ‘the model clauses (in awards) do not seek to invalidate or regulate any such contractual arrangements’.13 This view is consistent with the approach in many of the leading cases discussed above.

It should also be noted that the new clauses would not have to be included in an enterprise agreement provision dealing with set-off arrangements, although if the underpinning award for the agreement included such a term, then that requirement would constitute part of the award provision against which the BOOT would be applied.

Final thoughts The use of annualised salaries and set-off arrangements under common law contracts remains a viable option.

There are, however, many practical and technical challenges associated with their use.

These are often not well understood, and that is why many of these arrangements have failed. In particular, businesses should consider the drafting and record keeping requirements carefully before assuming any set-off arrangement will withstand scrutiny.

But with the exercise of reasonable care, both common law contracts and award/ agreement set-off clauses are attractive from many perspectives.

Endnotes 1

2 3 4

5

6 7 8 9

10 11 12

13

(2015) FCA FC 99 (‘Linkhill’); an application for special leave to appeal to the High Court was filed by Linkhill Pty Ltd, but was dismissed.

(1967) AR (NSW) 471.

Linkhill [59]; Poletti v Ecob (No 2) (1989) 31 IR 321 (‘Poletti’), 333-334.

Australia and New Zealand Banking Group Limited v Finance Sector Union of Australia (2011) 111 IR 227,[53], referred to and adopted in Linkhill, [59].

Lynch v Buckley Sawmills Pty Ltd (1984) 3 FCR 503, at 509, also James Turner Roofing Pty Ltd v Peters (2003) WASCA 28, at 45.

Fair Work Act 2009 (Cth) ss 535-536; Fair Work Regulations 2009 (Cth) regs 3.31-3.46.

Fair Work Act 2009 (Cth) s 557C. Linkhill, [84];Poletti, [49].

David Marln-Guzman, ‘Workpac hit with $84 million class action over casual ‘underpayments’’, Australian Financial Review (online, 5 February 2019) <https:// www.afr.com/policy/economy/workpac-hit-with84-million-class-action-over-casual-underpayments20190205-h1avua>; Workpac Pty Ltd v Rossato (Full Federal Court of Australia, QUD724/2018, commenced 4 October 2018).

See Pavey and Matthews v Paul (1987) 162 CLR 221.

Four Yearly Review Of Modern Awards – Annualised Wage Arrangements (2019) FWCFB 4368.

Four Yearly Review Of Modern Awards – Annualised Wage Arrangements (2019) FWCFB 4368, [23] (cl X.2(c) of ‘Model Clause 1’). Note also that as mentioned above, various records are required to be kept in any event under the Fair Work Regulations, whether or not any form of annualised salary is in place.

Four Yearly Review Of Modern Awards – Annualised Wage Arrangements (2019) FWCFB 4368, [22].

Shearn HR Legal - Human Resource + Recruitment is proud to announce its 21st Anniversary in 2019, having first opened the doors on 16 February 1998 and still going strong! It has been a pleasure working with the legal fraternity, locally and afar, over all these wonderful years and it is our aim to continue doing so, for many years to come. Please call or email for a confidential discussion about your most important asset, you or your firm, for your legal career needs and requirements.

Julianna Shearn B.Juris.,LL.B. Director 0401 001 888 julianna@shearnhrlegal.com.au

Suite 4, 5 Colin Street, West Perth WA 6005 T (08) 9322 3300 F (08) 9322 3355 www.shearnhrlegal.com.au

17

Lawyers Administering Justice

By The Honourable Justice Peter Quinlan Chief Justice of Western Australia Keynote Address to Australian Lawyers Alliance Western Australia Conference, 6 September 2019

I thank the Australian Lawyers Alliance for the invitation to speak at this year’s Western Australian conference.

This is particularly so, given that 2019 marks the 25th anniversary of the Australian Lawyers Alliance (albeit not in name, a matter I shall return to shortly).

May I begin by acknowledging the Whadjuk people of the Noongyar nation, the traditional owners of the land on which we gather this morning, and pay my respects to their elders past, present and emerging.

When I initially agreed to speak at this morning’s event, I thought I would take for my theme a quote from Sir Gerard Brennan that I referred to at my welcome to the bench of the Supreme Court and that I have used in every speech marking the admission of new lawyers that I have conducted since that time.

Sir Gerard’s remarks were made in the year prior to my own admission as a lawyer and, appropriately enough, were made in a case on appeal from the Supreme Court of Western Australia. He said this: The law is administered more frequently and more directly by legal advisers than it is by judges.

The importance of this quote comes from what it says to every lawyer: that 18 | BRIEF NOVEMBER 2019

what you are doing, in your work, is administering the law and administering justice. Not only when you are assisting the Court to do so: but doing it directly yourselves.

It emphasises that every time a lawyer provides frank, independent and accurate advice to a client that resolves a problem, however large or small, he or she is directly administering justice.

Why raise this quote in the context of an address to the Australian Lawyers Alliance?

The answer comes, in part, from the name change of this association that I alluded to earlier.

Many of us here will recall that, for the first ten years of its existence, this gathering was known as the Australian Plaintiff Lawyers Association. It was an association formed, in 1994, with the purpose of furthering the interests of persons seeking compensation for injury caused by negligence. Notwithstanding the name change, the topics in today’s

sessions demonstrate that in substance, if not in form, that continues to be the ethos of the association.

I must confess to a certain affection for the old name. And can I suggest that, as noble as the new name is, and as reflective as it may be of the scope of the interests of the association, there are some subtle but important things that have been lost by the name change?

First, its directness and its clarity.

Everyone knows what a ‘plaintiff lawyer’ is. It tells the world immediately, and with precision, who comprises this group and what its core interest is.

And in that context, ‘plaintiff lawyer’ is not simply a person acting for the initiating party in a court proceeding. We don’t call a practitioner who acts, from time to time, for the moving party in a defamation claim, or a contract claim, or a misrepresentation claim, a ‘plaintiff lawyer’. It’s a particular kind of plaintiff that the expression brings to mind.

The plaintiff who has suffered a personal injury.

And so to the second subtle loss in not being the Australian Plaintiff Lawyers Association. The name told us who it was for. It was an association of lawyers but it was not for lawyers. It was about the plaintiffs; about the clients. It was about them and not about us.

And thirdly, I always thought that there was a wonderful brashness, even defiance, associated with the name.

Because as we know, regrettably, in parts of the legal profession personal injuries work is looked down upon – even frowned upon - and regarded as low status.

This is nothing new. As early as 1906 the American Bar Association, in a report on its Code of Ethics, said the following: Once possible ostracism by professional brethren was sufficient to keep from serious error the practitioner with no fixed ideals of ethical conduct; but now the shyster, the barratrously inclined, the ambulance chaser, the member of the Bar with a system of runners, pursue their nefarious methods with no check save the rope of sand of moral suasion so long as they stop short of actual fraud and violate no criminal law. These men believe themselves immune, the good or bad esteem of their colaborers is nothing to them provided their itching fingers are not thereby stayed in their eager quest for lucre.

Such sentiment finds its way into legislative policy. It is plaintiffs’ personal injury lawyers, and those lawyers alone, who are prohibited, under pain of criminal penalty, from advertising their services and from touting. Such a prohibition is, apparently, unnecessary for the rest of the legal profession.

And so, to name an association the Plaintiff Lawyers Association, brought with it a certain impertinent pride. It said, ‘we are plaintiff lawyers and we own it’.

Finally, and returning (finally!) to my theme, it always seemed to me that my colleagues who routinely acted for plaintiffs in personal injuries claims were in many ways the exemplar of the

ideal of lawyers administering justice.

The overwhelming majority of claims for compensation, by ordinary men and women, of course, never see the inside of a courtroom. They are resolved by negotiation and mediation, both formal and informal, in which the law and justice must be administered by the lawyers involved; lawyers whose responsibility it is to see that those ordinary men and women leave the process with a sense that the law has been vindicated and that justice has been done.

Which introduces the other component of the title to my address this morning: a tribute.

Because, reflecting upon my own impression of plaintiff lawyers as exemplars of lawyers administering justice, there is, for me, one particular exemplar of such a lawyer.

And so, in exploring a little further the important responsibilities of a lawyer administering justice, I do so in the context of a tribute to the contribution and career of Kevin Steven Pratt, who after 36 years of dedicated service, has this year retired from legal practice.

Kevin Pratt commenced his legal career at Jackson McDonald and was admitted in December 1982. He continued with that firm for a number of years until 1990, although from 1984 to 1985 he spent time in Kalgoorlie with the firm Sheppard Lalor.

In 1990 he commenced practice as a barrister at what was then Bar Chambers in Cathedral Square. As a little personal aside, I can claim to have been the first person to deliver Kevin a brief, which I did as a summer clerk at a small Perth law firm.

Kevin Pratt’s practice at the Bar over the next 29 years was not confined to personal injuries work: he was at home

in criminal law, wills and estates and commercial law, to name but a few.

More broadly, Kevin Pratt, has always maintained a fervent interest in the law generally. Those of us who like to pride ourselves on being up to date with all the latest High Court decisions would struggle to keep up with the rate at which Kevin read and digested the law in all of its variety.

What has always struck me, however, is not the breadth of Kevin’s understanding of the law, but its depth. Unlike many who can claim an encyclopaedic knowledge of precedent and authority, Kevin has a preternatural insight into what lies beneath a particular judicial expression of the law; getting to underlying philosophical presuppositions that lead a particular judge in a particular direction. Such an ability comes not only from a keen understanding of the law but of human nature itself.

So it was that Kevin Pratt was able to bring a breadth and depth of vision to legal practice that can be sadly lacking in our times.

That breadth and depth of vision extended to the legal profession itself: the subtle, but significant, changes in the way in which lawyers conduct themselves that have profound effects on the legal system and the community as a whole. In this regard Kevin was able to diagnose the cause of many of the problems that beset modern litigation (over-servicing, undue complexity and unnecessary interlocutory disputation) long before the rest of us could even recognise the symptoms. His insights into our own collective failings have always been invigorating.

But it was his work for injured plaintiffs for which Kevin is rightly renowned as a leader in the field. The sheer scale of his practice, and his commitment to

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19

clients, is the stuff of legend. He is the only person to have paid rent on two separate sets of chambers at Francis Burt Chambers, one for himself and one to serve as a conference room for the multiple settlement conferences that would be conducted (often simultaneously) both before and after court sitting hours. When he moved to establish Central Law Chambers with Theo Lampropoulos SC, it was necessary to design the chambers with a separate entrance and waiting room in order to accommodate his clients.

So it is that, echoing the aphorism of Sir Gerard Brennan with which I began, it has often been said of Kevin Pratt that he single-handedly administered more justice on a daily basis than most courts do.

And this was, of course, true. But it was true in a way that goes beyond mere results.

Which brings me to the deeper meaning of the notion of lawyers directly administering justice, when they give frank, independent and accurate advice to a client that resolves a problem.

It is the distinction, particularly in the context of mediation (formal and informal) between results, on one hand, and justice, on the other.

The success of a system of mediation is sometimes expressed in numerical terms, reflecting the numbers of matters resolved by a particular process or institution. Success, according to this metric, is a result. A settlement is a success; the failure to settle is ipso facto a failure.

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Metrics are important, of course. And outcomes (including mediated outcomes) are essential to any properly functioning legal system. But outcomes, or results, are not enough, if they are not delivered within the context of, and consistent with the requirements of, justice. A mediated outcome that is achieved by reason of attrition, or cost, or fear, or fatigue, is not a just outcome. It may, strictly speaking, be a result. But it is not justice and it does not vindicate the rule of law.

And so the aphorism that the law is administered more frequently and more directly by legal advisers than it is by judges, is not simply a comforting platitude, designed to make lawyers feel better about themselves. It is an urgent responsibility against which the performance of the profession is to be judged.

We are indeed fortunate in this State, and indeed the envy of other jurisdictions throughout Australia, to have a welldeveloped, and well-understood, court based mediation system. Court based mediation is an essential component of the broader dispute resolution system because it aims to achieve consensual outcomes within the context of the delivery of justice, which is, of course, the courtsâ&#x20AC;&#x2122; overriding responsibility.

The delivery of justice in this context is both procedural and substantive. It must aim for both a fair hearing and a just outcome according to law.

That is where lawyers come in, and apropos todayâ&#x20AC;&#x2122;s remarks, plaintiff lawyers. Because, whether a matter is settled within a court based mediation, an informal conference or in a lawyerâ&#x20AC;&#x2122;s

office, it is the lawyers who ultimately must ensure a fair hearing and a just outcome.

Let me develop this by reference to two aspects of the administration of justice drawn from the obligations which are properly understood to be owed by courts.

First, the right to be heard. One of the fundamental obligations of natural justice is the hearing rule. Persons whose interests are affected by a particular decision have the right to be heard in relation to it. Even an apparently obvious outcome may be regarded as unjust if the person affected by it does not have the opportunity to be heard. And, indeed, sometimes the apparently obvious case is the one in which the right is most important.

As Sir Robert Megarry observed: As everybody who has had anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who paused to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.

feeling of injustice can arise and, as Justice Brennan of the United States Supreme Court … recently perhaps overstated: “...Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down.” Aside from the sense of injustice which can be caused there is a broader interest in maintaining public acceptance of judicial decisions and the judicial system.

We are all, of course, acutely conscious of the need to provide those affected by our decisions the opportunity to influence the course of events in a court or administrative setting.

But it applies equally in the context of a mediation or negotiation, where the need to be heard, and the feelings of resentment if one is not, are just as real. And often, in those circumstances, the only opportunity to be heard that a plaintiff might have is the opportunity to be heard by his or her own lawyer. The course of a negotiation may be one in which it is only the plaintiff’s own lawyer that hears all of his or her story. And so in ensuring that justice is done, and seen to be done, in those circumstances it is necessary for the lawyer to learn to listen. And to listen to real needs and concerns of that client.

The second aspect, to which I wish to refer, is the duty, in the administration of justice, to give reasons. As an incident of the judicial process, this duty is, of course, well known and is an important aspect of judicial accountability. It facilitates the capacity of an appeal court to determine whether a particular decision is affected by factual or legal error.

But the duty to provide reasons has other, more human, benefits. As Meagher JA once put it: A failure to provide sufficient reasons can and often does lead to a real sense of grievance that a party does not know or understand why the decision was made. This Court has previously accepted the proposition that a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why they lost. One reason is obvious: if decisions cannot be understood, a

These remarks, of course, were made in the context of the judicial system. But they reflect a broader human reality.

Confidence in the legal system and in the rule of law may be affected just as significantly by a mediated outcome as it can be by a judicial decision. The reasons why a person settles a claim may be as important to their sense that justice has been done as the nature of the outcome itself.

A plaintiff may leave a mediation room, or lawyer’s office, not only with a negotiated outcome, but with an understanding as to why the outcome is what it is and how the law has been applied to the facts of their case to achieve that result.

Even where the outcome is not one which meets the particular plaintiff’s expectations, or is a disappointment, such an understanding has real benefit.

Or a plaintiff may leave that mediation room, or lawyer’s office, with a brooding sense of injustice and with no real understanding as to how the result was achieved.

And it is the plaintiff’s lawyer that has a vital role in determining which of these two alternatives is brought about. In such a case, it is the lawyer, inevitably, who provides the reasons for the outcome and whose duty it is to explain how that

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outcome is the result of the application of the law to the facts of the client’s case.

And sometimes that might be the most difficult task the lawyer has: to explain the result (or the proposed result) in a frank and impartial way. In some cases that frank and honest explanation might be unwelcome, because the application of the law to the facts may not be in accordance with the client’s wishes.

But such an explanation is essential to the attainment of justice and to the maintenance of the rule of law.

Returning to my tribute, both of these aspects of the maintenance of the rule of law were conspicuous in the way in which Kevin Pratt has practised the law over many decades. Notwithstanding the many thousands of them, Kevin brought a genuine interest in the story that each of his clients had to tell. He brought a passion to the pursuit of justice which, let’s be frank, sometimes bordered on the irascible. And, importantly, he brought an honest and frank explanation of the legal and factual merits of the client’s case according to law, including, occasionally, a frankness that courts can only envy. All of this ensured any outcome that was achieved was reasoned, attentive to the needs of the client and served the public’s confidence in the law and its institutions.

Kevin Pratt’s retirement from practice therefore leaves a significant gap in the legal landscape in this State.

In concluding these remarks may I offer my gratitude for Kevin’s fine example to me and to a generation of lawyers and pay tribute to his significant contribution to the administration of justice in this State.

Thank you for your time.

We’re on the hunt for new lawyers. If you want to be part of something fun, call our Director, Aaron McDonald, on 0401 919 456.

21

Rebates – A Fraud on the Financier?

By Peter Beekink, Partner, Lavan and Alexandra Johns-Putra, Solicitor, Lavan

It is becoming common practice, particularly in a soft property market, for developers to offer incentives to buyers of residential real estate. From cash-back schemes and holidays to home upgrades, developers continue to find creative ways to lure buyers to invest in their developments.

While it is a relatively untested area in Western Australia, there is some commentary in Queensland in respect of issues arising in relation to discounts, cash backs and other forms of rebates that are documented in side deeds or side letters outside of the sale contract and which are not disclosed to a buyer’s financier.

buyer’s financier documents), when conduct is considered in its totality, all parties involved in providing or receiving the rebate and concealment of the arrangement from the financier may be found to be guilty of fraud pursuant to section 409 of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code).

The commentary concludes that this conduct could amount to an intention to mislead the financier as to the true ‘market value’ of the property. This is because a reduction in the price that the financier is not aware of is likely to lead the financier to lend a greater amount than they would otherwise be willing to lend.

Section 409 of the Criminal Code relevantly provides that any person who, with intent to defraud, by deceit or any fraudulent means:

Additionally, it has been suggested that such practice could also amount to a fraud on the Office of State Revenue in that the consideration stated on a transfer of land is then used as sales evidence for the purpose of the Valuer General calculating the land values by which land tax is calculated and charged.

is guilty of a crime.

While it is commonly thought that the obligation to disclose any rebate or incentive that is available to the buyer which may impact on the value of the financier’s security sits with the buyer (and is likely to be a default under the

22 | BRIEF NOVEMBER 2019

1. induces any person to deliver property to another person; or 2. gains a benefit pecuniary or otherwise, for any person,

The penalty for contravention of section 409 of the Criminal Code where the value of the benefit gained is less than $50,000 is: 1. if the person deceived is of or over the age of 60 years, imprisonment for 3 years and a fine of $36,000; or 2. in any other case, imprisonment for 2 years and a fine of $24,000.

Accordingly, the relevant seller, the relevant real estate agent and any directors or licensees involved in rebate

arrangements that are not contained in the sale contract and not made apparent to the buyer’s financier could be open to arguments for fraud on the financer as a concealment could give rise to (without limitation) the following pecuniary benefits: 1. commissions to the real estate agent in respect of a completed purchase; 2. the sale of the property and payment of the purchase price to the relevant seller; or 3. the payment of management fees or other remuneration to the seller triggered by the settlement of the sale of the relevant lot.

If an incentive is not intended to be documented in the sale contract, consideration should be given to whether the terms and conditions of the incentive expressly include a requirement that details of the incentive are provided to the buyer’s financier and that if requested of the developer, seller or the real estate agent, the Buyer irrevocably consents to the release of a copy of that information to the buyer’s financier.

The conduct of the developer, the relevant seller and the real estate agent and its employees must be consistent with full and frank disclosure to the financier regarding the incentive arrangements. Developers may also wish to consider documenting this and undertaking training with relevant personnel and the real estate agents who are managing sales regarding the required conduct.

The Old Court House Law Museum: Conserving our Favourite Objects

By Greg Sikich, Curator, The Law Society of Western Australia, Old Court House Law Museum

The Bar Table is one of the most memorable objects that captures the attention and curiosity of audiences who visit the Law Societyâ&#x20AC;&#x2122;s Old Court House Law Museum. It rests in the centre of the Old Court House and is an important object that brings the Western Australian legal system to life for students who engage with the Francis Burt Law Education Programme.

Sources indicate that the Bar Table was purpose built in Western Australia and is believed to have been based at the Old Court House since 1854. The underside of the table is consistent with acceptable practice of leaving scrub plane marks, showing evidence of an early period of work pre-machinery era. The base still retains its original aged shellac finish and the base joints show evidence that original hide glue remains. There can be few more significant pieces of colonial legal furniture in Western Australia.

As identified in the Museumâ&#x20AC;&#x2122;s Significance Assessment Report, the Bar Table is an object of international, national and State significance. Due to this importance, the conservation and care of this object is a high priority for the Museum.

This past July, conservation work for the Bar Table occurred. Following advice from the Western Australian Museum, conservators Vanessa Wiggin and Ian Clark were engaged to undertake the conservation work required.

The treatment report from the work undertaken noted that the casters applied to the legs of the table were causing much damage. As a result, the casters were unscrewed from the legs.

The top of the table was removed to allow the legs to be repaired. To achieve this, the table top was placed on its side and secured to a bench for safety during the treatment. The curved end pieces were removed by tapping the joints with a mallet. Holes were drilled in the tops of the legs in order to inject in hide glue.

Hot water was also injected into the joints to reactivate the old glue.

The bulk of accretions, such as chewing gum, were mechanically removed from the underside of the table. Remaining residues were removed with white spirits on a cotton bud. Surface dust was removed from the table with a soft brush as well as a microfibre cloth dampened with a solution of non-ionic detergent to deionised water.

The Museum is pleased that the necessary conservation steps have been taken to ensure the community has continued, long-term access to this valuable glimpse into Western Australian social history.

Interested in learning more about the significant objects in the Museum Collection? Visit us at the Museum or go online the Museumâ&#x20AC;&#x2122;s website (lawsocietywa.asn.au/the-museum) and read our Significance Assessment Report that details upcoming conservation priorities.

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2020 Council Nominations COUNTRY MEMBER – ONE TO BE ELECTED FOR A TWO YEAR TERM Melita Medcalf*

Jamie Hodgkinson*

I am the Solicitor in Charge of Legal Aid's Pilbara Office. I am passionate about access to justice, engagement with Aboriginal voices and building team resilience in the legal profession. Currently serving on the Society's Indigenous Legal Issues and Country Practitioners Committee, I seek election to share my perspectives and experiences with the Society's council.

I began practice in Albany 11 years ago after working for national firms in Perth, where I was also raised and educated.

I have been in legal practice for nine years, commencing with the Office of the DPP in NSW. Since then, I have spent most of my career in the Pilbara, with roles in ALS, Legal Aid and KJ Rangers. I became Solicitor in Charge of the Pilbara in January 2019.

My key areas of interest are: •

Addressing the isolation of regional practitioners;

•

Supporting the Society's initiatives in building cultural understanding and competency; and

•

Contributing to the Society's important work supporting the health and wellbeing of practitioners.

My desire to move to a rural environment arose from a decision to achieve a more sustainable pace of life and to assist individuals, small business and farmers with all the issues that life brings.

I was recently recommended by Doyles for Agribusiness Law. I would be pleased to have the opportunity to represent country practitioners and make a positive contribution to the Law Society Council.

Junior Members – THREE TO BE ELECTED for a one year term Demi Swain

Thomas Camp

I am a solicitor at Bennett + Co and I was a Junior Member of Council in 2019. During my time as a Junior Member, I have gained insight and appreciation of the matters facing the legal profession and the importance of the role of the Law Society. As a recently admitted solicitor, I believe I have good insight into the issues, concerns and passions of the future of the legal profession. In particular, I am enthusiastic about promoting and fostering collegiality in the profession, mental health and wellbeing and access to justice.

I am currently working as a solicitor at the Inquiry into the City of Perth having previously worked as a solicitor at Mony De Kerloy Barristers and Solicitors and as the associate to the Hon. Justice Le Miere. I have served on the Brief Editorial Committee since April 2017.

I have thoroughly enjoyed my time on Council and I am committed to advocating for these issues in 2020.

I am committed to serving the profession wherever possible, such as mentoring in the Law Society’s junior mentoring program, judging mock trials and regularly contributing to Brief.

As a Junior Member of Council, I aim to help continue its good work with a focus on supporting members of the legal profession on a practical and personal level as well as improving outcomes for vulnerable members of the community involved in the legal system.

Gemma Swan

Lea Hiltenkamp

I am an Associate at Butlers, Lawyers & Notaries, working primarily in Family Law.

I am employed at Glen McLeod Legal, a boutique firm which specialises in environment and town planning law.

Having worked in the legal profession for almost 3 years, I have gained an appreciation for the issues that legal practitioners face and am eager to valuably contribute to the development of the profession. With my experience in Family Law, and having worked in the not-forprofit health sector, I am passionate about ensuring that the testing environments we work in are managed so as to foster positive mental health within the profession.

While at university, I volunteered at Law Access and gained insight into the importance of contributing to the profession. I am seeking election as a Junior Member to advocate for the more junior lawyers, and the issues they face in the first years of practice.

I wish to nominate as a junior member of the Law Society Council in order to contribute to discussions and actions on topics affecting not only the legal profession but also the West Australian community. I have a particularly strong interest in social justice issues and opportunities for reform. This interest has developed throughout my practical legal training with the Piddington Society as well as through volunteering with both Law Access and the Environmental Defender's Office.

I am enthusiastic about my work and helping others, and would embrace the role of Junior Member.

Have your say Ballot papers were electronically transmitted to members eligible to vote on Wednesday, 30 October 2019 by independent voting services organisation CorpVote. Voting will close at 3.00pm WST on Wednesday, 13 November 2019. *Preferred position as specified by nominee Candidates are listed in order as per the independent ballot draw performed by CorpVote

24 | BRIEF NOVEMBER 2019

The Law Society’s Wellbeing and Resilience Programme Did you know? Your membership with the Law Society provides complimentary access to these support programmes through LawCare WA. To find out more about all resources offered through LawCare WA, visit www.lawsocietywa.asn.au/lawcare-wa

Member Assistance Programme

Employee Relations Advice Line

The member assistance programme offers support with personal and work-related issues that may impact your job performance, health, mental and emotional wellbeing.

LawCare WA offers a free confidential telephone advice service to members on personal matters relating to a range of human resources and employee relations issues.*

Service provided by Converge International

Service provided by CCIWA

Phone: 1300 687 327

Phone: (08) 9365 7660

Practitioner Advice

Health and Wellbeing

Members of the profession connect with experienced practitioners for advice on ethical issues or complaints through the Senior Advisors Panel and Western Australian Bar Association Referral Service.

Working in the legal profession can be rewarding and challenging. It is important to find balance in your life as you juggle career, family, friends and hobbies.

Referral service provided by WABA

Phone: (08) 9220 0477

LawCare WA is available to members of

• • •

Attend complimentary Pilates classes provided by HBF twice a year Participate in sporting tournaments hosted by the Law Society’s Young Lawyers Committee Take advantage of exclusive offers through the Law Society’s member privileges programme

For more information about LawCare WA please visit

lawsocietywa.asn.au/lawcare

*This service is only for a Law Society member who is an individual employee (not an employer). If after speaking to CCIWA more substantial employee relations advice is required, members may use the Law Society’s Find a Lawyer service to find legal practitioners specialising in employee relations law. Disclaimer: The Law Society facilitates all the above services and does not warrant or guarantee the work undertaken by any third party organisation, firm or individual listed or provided and is not liable in relation to any aspect of services they may provide to you.

On Royal Commissions CCCS Conference, Melbourne Law School, 26 July 2019

By The Hon Kenneth Hayne AC QC Professorial Fellow, Melbourne Law School Commissioner, Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, 2017-2019 Rather than speak about the work of the Financial Services Royal Commission, I want to say something about what seems to be the place Royal Commissions are now being given in our democracy and what that may say about the structures of government.

Some of you will have seen that, earlier this week, John Pesutto, formerly Victoria’s shadow Attorney General and now a Senior Fellow at the School of Government at this University, wrote a piece published in The Age newspaper in which he said he was becoming increasingly worried about what the ‘apparent proliferation of Royal Commissions is saying about our standing institutions of government’.

And I should say that, when first working on this speech some weeks ago, I had thought that the central question I should pose for you tonight is the question Mr Pesutto asked. What does the use of Royal Commissions tell us about how our existing governmental structures are working?

And the immediate answer to that question may be that it shows that those structures – legislative, executive or judicial – are not working as they should.

If they were, why would we want or need so many Royal Commissions?

But to answer the question at any deeper level requires some unpacking of the issues.

To do that, I need to begin from three basic and obvious observations.

First, the legislative and the executive branches of government make all sorts of inquiries and gather all sorts of information without appointing a Royal Commission. And much of that information is assembled compulsorily.

Committees of the Parliament conduct many inquiries. The executive gathers a lot of information about what is

26 | BRIEF NOVEMBER 2019

happening in society whether by census or otherwise. Compulsory gathering of information is not the sole province of Royal Commissions.

Second, appointing a Royal Commission is a political act. Government establishes the Commission and appoints the Commissioner or Commissioners. And governments often appoint a Commission in response to what the political branches see as public pressure for an open and transparent examination of some issue or issues.

Third, a Commission cannot decide any issue. It can only make recommendations.

It cannot and does not decide whether offences have been committed. It cannot and does not decide whether rights have been infringed.

Fourth, if regulators and the courts are doing their jobs properly and efficiently, misconduct is identified, prosecuted and punished. If either the regulators or the courts fail in their tasks, misconduct multiplies, and justifiable grievances build up.

All this being so, why are there as many Royal Commissions as there have been in recent times? Why are there so many calls for new Royal Commissions?

Part of the answer may lie in the ways in which Commissions go about their work.

Although there is a political dimension to every Royal Commission it does not follow that the Commission will be conducted as a political exercise. On the contrary. Ordinarily, the appointed Commissioner or Commissioners will execute the tasks given by the Letters Patent assisted by counsel and solicitors of their choice working wholly independently of not only the political branches but also any government department or agency whose conduct might be in issue.

It is always a matter for the Commission to decide how it will gather the information it needs in conducting its inquiry. That said, most Commissions

will conduct some public hearings. But because the Commission is to inquire and report, and it is no part of the work of the Commission to decide any issue, counsel assisting the Commission are not there to make a case. They are there to assist a process of inquiry.

The process of inquiry will often have three distinct consequences. First, for some who have been affected by conduct which is the subject of inquiry, a Royal Commission’s public examination of events and their causes will provide an opportunity to be heard and give public voice to issues which they may think have not been properly understood or appreciated. For them, there will be a sense of vindication from the very fact of being heard.

Second, it will often be the case that a Commission’s hearings will require those who have engaged in the conduct which is the subject of inquiry to give their accounts of what happened and why. There is for them, therefore, a real measure of public accountability. But it is a very different form of accountability from what follows from the proper application of the law by regulators, appropriate prosecution of wrongdoing and adjudication by the courts.

The third kind of consequence is broader in its effect. It is a consequence which affects the wider community. A Royal Commission will always provide a focus for debate about the issues the Commission is examining. That debate will be focused by the course of hearings but will also be focused by what appears in the reports made by the Commission.

None of these observations about how Commissions work is novel or remarkable. But I make them because they bear upon the larger question of whether the use now being made of Royal Commissions tells us anything about our standing institutions of government.

The points I have made about how Royal Commissions work can be captured in a few words: • • • •

Independent; Neutral; Public; and Yielding a reasoned report.

These ideas of independence, neutrality, publicity and reasoned reports may be contrasted with what some, perhaps many, would see as the characteristics of modern political practice with its emphasis on party difference, and with decision-making processes that not only are opaque but also, too often, are seen as skewed, if not captured, by the interests of those large and powerful

enough to lobby governments behind closed doors.

And the ideas of independence, neutrality, publicity and provision of a reasoned report are of course characteristic of judicial processes. But, as I have explained, a Royal Commission applies these ideas in a manner and in a context that is radically different from the exercise of judicial power.

Reasoned debates about issues of policy are now rare. (Three or four word slogans have taken their place.)

Political, and other commentary focuses on what divides us rather than what unites us. (Conflict sells stories; harmony does not.) And political rhetoric now resorts to the language of war, seeking to portray opposing views as presenting existential threats to society as we now know it.

Trust in all sorts of institutions, governmental and private, has been damaged or destroyed. Our future is often framed as some return to an imaginary glorious past when the issues that now beset us had not arisen.

The contrast between these characteristics of the political process and the characteristics of the work of a Royal Commission is marked.

It may well be thought that our governmental institutions are framed on the premise that there can and will be reasoned debate about the merits of competing policy ideas. If that is right, does the premise remain valid? We seem unable to conduct reasoned debates about policy matters. Policy ideas seem often to be framed only for partisan or sectional advantage with little articulation of how or why their implementation would contribute to the greater good.

Notice how many recent inquiries relate to difficult issues of public policy: how can

we, how should we, look after the aged?

How can we, how should we, respond to mental health? Some are more particular.

Has the course of criminal justice been deflected by the way in which a lawyer provided information to police?

Does reference of matters of these kinds to Royal Commissions suggest that our governmental structures can deal effectively only with the immediate spot fire and cannot deal with large issues?

If that is a conclusion to be drawn, I am not sure that the solution lies in trying to have our existing structures of government replicate some of the processes of a Royal Commission. To do that would require revealing more of the inner workings of government and would require revealing how, and why, policy choices were made. Hence, it would be necessary to reconsider the relationship between the political branches of government and the public service, with a view to revealing more about advice to government.

And it would be necessary to reveal more about what the lobbyists and interest groups are telling government.

But would any of those steps help? Are they steps that are likely to provoke better debate about policy? To make information available is important but there will be informed debate only if the information is read, understood and used to make reasoned arguments. Too often, the information that is available is neither read nor understood. And even if the information has been read and understood, debate proceeds by reference only to slogans coined by partisan participants. We have seen that in this country in the debate about the Uluru Statement from the Heart. We have seen that in the United States in the debate about the Mueller report. The

examples can be multiplied.

The increasingly frequent calls for Royal Commissions in this country cannot, and should not, be dismissed as some passing fad or fashion. Instead, we need to grapple closely with what these calls are telling us about the state of our democratic institutions.

Scholars in many places (including this Law School) are considering issues about democratic decay. Some see public law as an important element in slowing or preventing that decay. And I am sure that this is right. Proper development and application of public law doctrines is very important. But public law doctrines take the structures and system of government as they exist and those doctrines seek to mark and enforce the bounds of exercise of public power within those structures.

It follows, I think, that proper development and application of public law doctrines (important as that is) will not come to grips with the issues that lie beneath the rising demand for Royal Commissions.

Those issues are different. They are issues about development of policy. They are issues about public debate about policy. They are issues about public accountability when the legal system has not been engaged or has not been engaged effectively for the vindication of the law and those who have suffered a wrong. These are the kinds of issues that I think lead to the strength and frequency of public appeals for Royal Commissions.

All of them are issues about the way our democracy is operating and the premises that underpin the structures of our government. I offer no answer to the issues. We would all do well to consider them in relation to all three branches of government â&#x20AC;&#x201C; legislative, executive and judicial.

27

Taxing Matters

The High Court of Australia's Glencore Decision

By Sam Radici* Special Counsel, HHG Legal The recent decision of the High Court in Glencore International AG & Ors v The Commissioner of Taxation of the Commonwealth of Australia & Ors1 considered whether the defendants could be restrained from using “leaked” documents that it had obtained.

The leaked documents would ordinarily have been subject to legal professional privilege (“LPP”) which would have enabled the plaintiffs not to disclose the documents to the defendants.

The case considered the history and nature of LPP to determine whether LPP gives rise to an actionable right to grant the relief sought by the plaintiffs.

Glencore International AG engaged Appleby, an incorporated legal practice in Bermuda to provide legal advice to it. Some of the advice provided related a restructure of its Australian entities (“Project Everest”).

Appleby’s electronic file management system was subsequently hacked and a number of documents were stolen. In late 2017, the hacked documents, known as the “Paradise Papers” became publically available.

By November 2017, the defendants obtained a copy of the Paradise Papers which included documents that related to “Project Everest” (“Glencore Documents”).

There was no suggestion that defendants had done anything wrong or illegal in obtaining the Glencore Documents.

Representatives of the parties had meetings where the ATO indicated that it was in possession of the Glencore Documents.

Prior to the commencement of the High Court proceedings, the defendants declined to return the Glencore Documents and provide an undertaking not to use those documents.

In the proceedings, the plaintiffs sought: a. an injunction restraining the defendants from making use of any of the Glencore Documents; and, b. an order that the defendants return to the plaintiffs the Glencore Documents.

The defendants demurred to the plaintiff’s claim on the basis that no cause of action is disclosed by the plaintiffs by which the plaintiffs are entitled to the relief sought.2

28 | BRIEF NOVEMBER 2019

In the alternative, the defendants contended that under s 166 of the Income Tax Assessment Act 1936 (Cth), they were entitled and obliged to retain and use the Glencore Documents. That section provides that the Commissioner must make an assessment of a taxpayer’s assessable income (if any) on the basis of the taxpayer’s returns and any other information that is in the Commissioner’s possession.

The Association of Corporate Counsel and Australian Corporate Lawyers Association (“ACC”) sought and but was not granted leave to appear as amicus curiae.

The ACC contended that the issues being considered were important matters of public policy in extending the application of LPP. It asserted that privilege holders have a right to restrain the unauthorised use of documents and that this right is not abrogated by Australian tax laws.3 The doctrine of LPP arose as a response to the exercise of powers by the State to compel disclosure of confidential communications between lawyer and client.4 In Daniels Corporation5 it was observed that legal professional privilege is a rule of substantive law and not merely a rule of evidence. McHugh J6 described LPP as “a person’s immunity from compulsion to produce documents that evidence confidential communications in legal matters” between lawyers and clients.

Gummow J’s view regarding LPP is that it is “not to be characterised as a rule of law conferring individual rights, breach of which gives rise to an action on the case for damages, or an apprehended or continued breach of which may be restrained by injunction.”7 In Grant v Downs8 it was recognised that there was another more general public interest which LPP did not promote. Fair conduct of litigation requires that all relevant documentary evidence be available. Arguably LPP does not allow all relevant documentary evidence to be made available.9 In Glencore, the High Court said that a balance needs to be struck between the two competing public interests: “the law is not concerned to further a client’s personal interest in preventing the use which might be made by others of the client’s communications if they obtained them. In providing an immunity, the law’s purpose was to enhance the administration of justice.”10 The High Court stated LPP is unlikely to extend beyond an immunity from disclosure.11 Further, once privileged

documents have been disclosed equitable relief must sought to prevent the use of that material. The basis for relief in equity is confidentiality.12 The High Court also said that there may be difficulties in the plaintiffs successfully seeking equitable relief given that the Glencore Documents are in the public domain in circumstances where there is no suggestion that the documents were improperly obtained. The plaintiffs, with orders sought, did not seek equitable relief nor did they seek to expand on any area of the law such as any tort of unjustified invasion of privacy.13 The High Court held that the demurrer must be upheld which enabled the defendants to retain and use the Glencore Documents.

in Daniels Corporation, and leaves some unanswered questions: a. can a claim of confidentially successfully prevent a third party from the unauthorised use of privileged documents that have been leaked into the public domain; and, b. can hacked or stolen information that would have otherwise been subject to LPP be admissible in subsequent proceedings or be used by third parties such Government departments?

The Law Council of Australia has made the following observations16 regarding the implications of the decision:

Overall, it appears that (if available) Glencore should have sought remedy through equity and the law of confidential information. As this was not raised, the Court did not need to consider this area in any great detail, however, the Court made it clear that it was the only potential appropriate avenue in this circumstance.

Consequently, the Court did not need to address the limitations of recourse though confidential information: that is, that such an action generally requires evidence as to the confidential nature of the documents. In the present case that course of action was undermined by the fact that the documents were stolen and published by an unidentified hacker (i.e. their confidentiality was lost by being placed into the public domain). There are also interesting issues surrounding the balance between confidentiality and the obligations upon regulators and administrators to use all available information to discharge their statutory obligations.

While it is disappointing that this issue was not further addressed, it appears that there is a gap in

The High Court said that while there was no issue about the Glencore Documents being the subject of LPP, the orders sought would not assist the plaintiff as the documents were already in the possession of the defendant.

The High Court also said14 that LPP “is only an immunity from the exercise of a powers which would otherwise compel a disclosure the disclosure of privileged communications as Daniels Corporations holds.”

That is LPP is not an actionable right and is only a “shield” to protect a party from having to disclose documents.

The High Court also said that: “In the absence of further facts it is not possible to say whether the plaintiffs are without any possibility of a remedy. But if there is a gap in the law, legal professional privilege is not the area which might be developed in order to provide the remedy sought.”15 The decision does not expand on the principles set out

29

the law by virtue of the nature and impact of the modern phenomenon of hacking and cyber security.

The decision of the High Court does not address, for example, the admissibility of hacked documents in subsequent court cases and the court's discretion to exclude improperly obtained evidence (as Glencore's case did not depend on questions of admissibility).

These gaps could have serious implications. Legal professional privilege facilitates the administration of justice by encouraging clients to make full and frank disclosures to their lawyers. This in turn furthers access to justice, insofar as it allows clients to receive accurate legal advice. Failure to protect this information thereby undermines the operation and effectiveness of our legal system.

As this decision is now the authority on the issue, there are also serious concerns with regard to privileged documents mistakenly disclosed to government agencies. If privileged documents are inadvertently disclosed in court proceedings, the rules of the court are a sufficient remedy to compel their return and non-use per Expense Reduction.

The various state and territory professional conduct rules reinforce this. However, if such documents come into the possession of a government agency, there is no clear recourse for affected parties. The High Court refrained from considering this issue in the context of the ATO’s assertion that s166 of the Income Tax Assessment Act 1936 (Cth) prevented

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them from returning and disregarding the Glencore documents.

Furthermore, the decision seems to leave unanswered a potential back door or loophole through which otherwise privileged documents might become admissible.

Further potential implications include greater exposure by legal practitioners and law firms to professional negligence proceedings in the event that confidential information stored online is inadequately protected from hackers.

Notes: * 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

The author thanks Alex Sceales of Sceales Lawyers for his assistance in preparing the article.

[2019] HCA 26 (‘Glencore’).

Ibid 2 [4].

Refer to ACC’s submissions filed with the High Court on 22 March 2019.

See Glencore at [15], citing Brereton, “legal professional privilege”, in Gleeson, Watson and Peden (eds), Historical Foundations of Australian Law (2013), volume 2, 127 at 128-129.

(2002) 213 CLR 543 at 552 to 553 [9-11].

See Glencore at [24] citing Daniels Corporation Ibid at 563 [44].

Ibid 7 [26] citing Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 118 CLR 501 at 566.

(1976) 135 CLR 674 at 685 per Steven, Mason and Murphy JJ. See Glencore 7 [29].

Ibid 8 [31].

Ibid 8 [32].

Ibid 8 [34].

Ibid 3 [7].

Ibid 4 [12].

Ibid 10 [42].

Law Council of Australia Memorandum – Glencore International Ag and Ors v Commissioner of Taxation of Australian and Ors, High Court of Australia, No. S256 of 2018, 15 August 2019.

Nothing to Write Home About: Australia the Defamation Capital of the World

By Dr Matt Collins AM QC President of the Victorian Bar Address to the National Press Club, Canberra 4 September 2019

Australian defamation laws – the laws of libel and slander – bear the indelible stamp of their lowly origins.

Libel was derived from Roman law. It was originally a crime, often prosecuted in the Star Chamber.

Slander emerged in the ecclesiastical courts in England in the early middle ages.

Not a promising start for a cause of action that is supposed to balance two fundamental rights when they come into conflict in the internet age: the private right to protect one’s reputation, and the public interest in freedom of expression.

It used to be said that London was the libel capital of the world.

Let me give you one statistic to ponder: I recently asked a researcher, Hannah Douglas, to identify every decision by a superior court in the United Kingdom and Australia considering a defamation law issue over the five-year period from 2014 to 2018. We found 268 references in the United Kingdom, for a national population of about 66 million people.

In Australia, with our population of 25 million people, we found 577 references: more than double the number in the UK, despite our much smaller population.

Even more stunningly, 312 of the Australian references came from New

South Wales, with its population of about 7.5 million people. On a per capita basis, that means that defamation law issues were considered by superior courts in Sydney more than 10 times more frequently than in London in the period we analysed.

And we did not even look at proceedings in lower courts, such as the District Court of NSW, which is a very active jurisdiction.

acknowledged problems with them, they have not been amended since 2005. That is no small matter.

At the end of 2004, Facebook had approximately 1 million users globally.

Today, it has 2.41 billion active users per month. Twitter was founded in March 2006, about three months after our current defamation laws commenced.

In 2005, only 28% of the Australian population had broadband internet access. The first iPhone was not released until June 2007.

In short – our defamation laws predate the modern communications era.

In Australia, we inherited the English common law and then made it worse.

Not only are they out-of-date, but they are flawed in a number of other respects.

Until 2005, when uniform national defamation laws were passed, there were differences between the defamation laws of the six Australian states and two territories, with the result that there were things you could say on Collins Street, Melbourne that you could not say on Pitt Street, Sydney.

There are many problems. I will identify just a few, to give a sense of the scale of the problems:

Those problems were overcome when we achieved uniformity in 2005, but the laws we passed then were a pragmatic compromise, and not a very coherent one at that.

Because our defamation laws are uniform national laws, they are all-butimpossible to change. Despite myriad

•

the limitation period for defamation actions was reduced to one year, but the period starts to run afresh every time the same material is accessed, no matter how much time has passed since it was first written, so in most online cases the statute of limitations never actually expires;

•

there is a drafting problem with the defence of contextual truth, which is supposed to stop plaintiffs from cherry-picking minor parts of a publication that are wrong, while 31

“Our defamation laws predate the modern communications era” multiple proceedings in relation to the same material in any case where there are different publishing entities – so plaintiffs routinely bring separate proceedings, for example, in relation to the same article in The Age, the Sydney Morning Herald and the Canberra Times; and

ignoring all the true parts that have really caused them damage, as a result of which the defence is in practice a dead letter; •

•

•

•

the honest opinion defence, which was supposed to liberalise the common law defence of fair comment, has been interpreted by courts as importing some of the requirements of the common law that are not expressly stated in the legislation, so the new defence has not actually had any practical impact; there is a defence of qualified privilege, which is supposed to protect publishers who have acted reasonably, but got their facts wrong, but which has been interpreted so conservatively that it has never actually succeeded in a case involving the media since 2005; the statutory cap on damages can be set aside in any case involving conduct that warrants an award of aggravated damages; the statutory cap can also be circumvented by plaintiffs bringing

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•

the legislation focuses on the imputations conveyed by a publication – which are, in any serious case, formulated by the small number of ingenious lawyers who have mastered the arcane art of defamation pleadings – rather than on what a defamation action should be about: the meaning of what a publisher actually wrote or said.

Last year, the NSW Attorney-General released a discussion paper for the reform of defamation law which addresses some of these and other issues with the legislation. I support the current debate. But it is timid.

It assumes we are stuck with our current laws and that the best we can do is tinker at the edges. That might prove to be right, but I believe we should aim higher.

There are two critical ways in which our defamation laws are failing us.

The first is that our laws have proven singularly unable to provide an effective remedy to persons whose reputations are destroyed, often in a heartbeat, by the publication of damaging and demonstrably false material via the internet. This is a growing problem.

In the vast majority of cases, in my experience, defamation plaintiffs are not motivated by money, at least initially; they are looking to have damaging material removed, or to have a court declare that what has been said about them is false, so that they can mitigate the damage by pointing to a finding by a responsible authority.

But our courts measure defamatory impact by an award of damages, and then only after protracted and costly litigation in which mud is thrown, some of which inevitably sticks. In addition, in some cases, plaintiffs have been awarded eye-watering sums of damages, vastly in excess of what would be awarded for a workplace injury resulting in, say, the loss of a limb.

The second failure is that our laws do not adequately protect freedom of speech, and particularly freedom of the press, in cases of serious journalism in relation to matters that its targets do not want exposed. Often, these cases involve stories that journalists profoundly believe in; subject matter of high public importance; plaintiffs who are motivated by a desire to shut down public debate; and information provided to journalists by whistleblowers or confidential sources who are useless in a legal sense, because they cannot be called to give evidence at trial.

There is a common element to both of these failures.

It resides in the fact that our defamation laws presume that all defamatory publications are false, and place a burden on defendants to displace that presumption.

This, it seems to me, has it exactly the wrong way around.

Although we do not talk about it in terms of the presumption of innocence, there are analogies: in all other fields of civil law, defendants are not presumed to be liable; plaintiffs have to prove some wrongdoing on the part of the defendant and that they have suffered some damage before they are entitled to compensation. In defamation law, the law presumes that every defamatory publication is false; and that every defamatory publication has caused damage to the plaintiff’s reputation – that second presumption, in Australia, is irrebuttable.

Surely, it would be better for the law to enable plaintiffs to demonstrate quickly and cost- effectively that false material has been published about them?

And surely it would be better to impose upon plaintiffs the burden of establishing the falsity of what has been published, and that their reputations have in fact been damaged, so that we can be sure that plaintiffs are not compensated for the publication of the truth or of matters that have not caused any actual harm?

For those reasons, I favour making falsity an element of the cause of action for defamation, and introducing a threshold of seriousness as a precondition for commencing a defamation action.

More fundamentally, however, I am convinced that the time has come for Australia to have a mature debate about how to balance fundamental rights when they come into conflict.

This is, obviously, not a problem which is confined to defamation law – it rears

its head in national security law, in restrictions on court reporting, in the expression of religious belief and so on – but defamation law makes a good case study.

The fundamental rights at play in defamation law are reputation and freedom of expression.

Damage to reputation, however, is not even necessary to found a cause of action for defamation: it is enough that a person is ‘exposed’ to hatred, contempt or ridicule; or that a statement may ‘tend to’ lower a person in the estimation of right-thinking people generally. As a consequence, defamation has, all too often, become a cause of action to compensate for hurt feelings, in circumstances where the plaintiff has suffered little or no reputational damage.

Freedom of speech is also dealt with only indirectly. Our laws are silent as to the reasons why freedom of speech matters: nowhere do we find, for example, reference to John Stuart Mill’s 1859 insight that there is a ‘peculiar evil’ in silencing the expression of an opinion, because it robs us of ‘the clearer perception and livelier impression of truth, produced by its collision with error’.

If we were drafting defamation laws from scratch, I think we would start by asking of the plaintiff: has the defendant published something that is false and that has damaged your reputation and in what way?

And if a plaintiff’s reputation has been damaged by a false publication, beyond a threshold of seriousness, I think we would ask, of the defendant: why should

your right to freedom of speech prevail, given the damage you have caused? For the purpose of that inquiry, I would look at the value of the defendant’s speech: was it in the public interest for the matter to be published? Was the publication fair, in that it was competently researched and not motivated by malice?

Did it occur on an occasion deserving of special protection for some reason; for example, because it was said in court or parliament, at a public meeting, in a boardroom or clubhouse, or in the course of a work performance review?

In other words, we would subject the competing interests of reputation and freedom of expression to a balancing exercise, taking into account the justifications for interfering with or restricting each right. We would inquire into the extent to which it is necessary to qualify one right in order to protect the underlying value which is protected by the other.

In short, we would do what happens in places where the law must conform to a charter of rights and freedoms.

The absence of a charter has been used

by Australian courts as a justification for not following liberalising trends in defamation law that have emerged in countries like the United States, the United Kingdom, Canada and New Zealand.

It is no coincidence that our defamation laws are among the most restrictive of any western democracy, and that we are at the same time the only western democracy without a charter.

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END OF YEAR CELEBRATION The Westin, 480 Hay Street, Perth Thursday, 5 December 2019 5.30pm – 7.30pm Members: $35 Non-Members: $55 Join us, and your colleagues in the contemporary surrounds of Hibernian Place as we toast to another successful year. The evening promises to be a night of collegiality, refreshments, delicious canapés and music, so get a group from your workplace together or fly solo, but don’t miss our final event for the year.

Members, non-members and partners are welcome to attend this popular Law Society event.

Registrations close Wednesday, 27 November 2019 or when sold out.

Book online at lawsocietywa.asn.au/ upcoming-events/

Sponsored by

lawsocietywa.asn.au 34 | BRIEF NOVEMBER 2019

Note: The Law Society endorses moderation and a responsible attitude towards alcohol at all Law Society functions.

The Westin

Being Retained Gino Dal Pont Professor, Faculty of Law, University of Tasmania

• The law seeks to counterbalance perceived inequality in lawyer-client relations by controls on the retainer.

• These controls span the existence, content and duration of the retainer.

• Lawyers should accordingly take care in accepting engagements, as the same standards apply even when clients become difficult.

Prevailing public policy speaks to the protection of the vulnerable to others’ dominant position. And the law, both judge-made and statute, in manifold ways implements this policy. The relationship between lawyer and client illustrates the point. The lawyer has traditionally been perceived as in a ‘strong’ position vis-à-vis the client — by virtue of a monopoly punctuated by special skill and learning — which has in turn prompted the law to impose various obligations and constraints to counterbalance client ‘weakness’.

It is unsurprising that many of these focus on what goes to substantiating the lawyer-client relationship, namely a retainer. Courts acknowledge that whether or not a retainer is created is approached chiefly from the perspective of the putative client;1 hence the law on what are termed ‘implied retainers’. When it comes to the scope of the retainer, a line of authority (though not without its critics) maintains that, all else being equal, ‘the word of the client is to be preferred to the word of the solicitor’.2 When it comes to charging costs, which rests on a retainer with a client (even though the method of charging is often prescribed by a costs agreement), both the general law and legislation imposes duties and proscriptions upon lawyers lacking equivalents in any other professional-client scenarios (or indeed any other contractual relations). The courts have long recognised a jurisdiction to set aside costs agreements infected by the germs of ‘unfairness’ or ‘unreasonableness’. Statute continues this trend, also bringing with it extensive costs disclosure obligations, temporal constraints on costs recovery and a process directed to the independent adjudication of lawyerclient bills.

The law’s tenderness to the ‘weak’ client endures to the termination of the retainer. For instance, while a client may terminate at any stage, absent consensus there is no parallel entitlement in the lawyer. He or she must instead rely on ‘just cause’. That following a client’s instructions would involve the lawyer acting illegally or unprofessionally gives the lawyer ‘just cause’ in this context. The case law has also long accepted that a client’s refusal to put the lawyer in funds to pay disbursements can justify termination.3 In one of the surprisingly few judicial statements to this effect, a New Zealand judge has remarked

Ethics Column that a client’s ‘[n]on-payment of fees, of course, would constitute just cause for terminating’.4 This statement, as in all instances where just cause is in issue, presupposes that a premature termination of a retainer; after all, if the subject matter of the engagement has been fulfilled, the retainer comes to an end under its own steam. In the premature termination for non-payment scenario, again reflecting the primacy of client interests, the law generally treats the lawyer as having discharged the client, and thus forfeited the entitlement to retain the client file as security for unpaid fees.5 The expectation, in any case, is that any termination by the lawyer for just cause be accompanied by reasonable notice. In some contexts, it also requires leave of the court.6 While not all lawyer-client relationships are characterised by the vulnerability that has informed the law’s sensitivity to the retainer, the subtext from the foregoing is clear: taking on the ‘wrong’ client can generate a fraught relationship from which extrication may not prove easy. And while the engagement remains on foot, it is important to note that the panoply of lawyer obligations remains.

The latter saw illustration in an attempt by a Queensland solicitor to defend a disciplinary charge arising out of alleged neglect and delay in client affairs.7 In this regard, he maintained that the clients in question were difficult, and that the difficulties had been compounded by their failure to place him in funds. The tribunal responded with little sympathy, stating that because ‘they were his clients, and he continued to act for them despite not having been placed in funds’, ‘for so long as he continued to act for them’, the solicitor owed the clients fundamental duties.8 While it may well have been to the solicitor’s credit to continue acting in circumstances that may have justified termination — as indeed do many dedicated lawyers to assist clients who are impecunious or otherwise struggle to pay legal fees — it licences no reduction in client service commensurate with client intransigence.

GINO DAL PONT is Professor, Faculty of Law, University of Tasmania Notes: 1 2 3 4 5 6 7 8

See, for example, Pegrum v Fatharly (1996) 14 WAR 92.

Griffiths v Evans [1953] 1 WLR 1424 at 1428 per Denning LJ. Wadsworth v Marshall (1832) 2 C & J 665; 149 ER 279.

Heslop v Cousins [2007] 3 NZLR 679 at [146] per Chisholm J. Robins v Goldingham (1872) LR 8 Eq 440.

See, for example, Super 1000 Pty Ltd v Pacific General Securities Ltd [2007] NSWSC 171.

Legal Services Commissioner v Cruise [2019] QCAT 182.

Ibid at [104].

35

FEDERAL COURT JUDGMENTS Dan Star QC Owen Dixon Chambers West, Melbourne

Consumer law Construction of disclosure obligation in the Franchising Code – civil penalties In Ultra Tune Australia Pty Ltd v Australian Competition and Consumer Commission [2019] FCAFC 164 (20 September 2019) the appellant (Ultra Tune) appealed against the trial judge’s decision that it contravened a disclosure obligation owed to franchisees in cl 15(1) of the Franchising Code (Schedule 1 to the Competition and Consumer (Industry Codes – Franchising) Regulation 2014 (Cth)) and the imposition of penalties for that and other admitted contraventions of the disclosure obligations in the Franchising Code.

Ultra Tune is a franchisor for motor vehicle engine repair and maintenance services provided by a national network of approximately 200 franchises. It admitted various contraventions of the Franchising Code but disputed other claims of contraventions pressed by the respondent (ACCC).

The disputed contraventions gave rise to a question of construction as to the proper meaning of the expression “sufficient detail” in cl 15(1)(b) of the Franchising Code (at [19]). The Full Court dismissed Ultra Tune’s appeal on the contested contraventions and upheld the trial judge’s construction (at [46][48]). Further, Allsop CJ and Jagot and Abraham JJ said at [47]: “The facts of the particular case will determine the issue of sufficiency which lends support to the primary judge’s observation at [104], that a franchisor would be well advised to err on the side of candour”.

However, the appeal against penalty was allowed and the Full Court reduced the trial judge’s penalty of $2,604,000 to $2,014,000. The Full Court disagreed with the trial judge that the disclosure contraventions were in or towards the worst category of case (at [60]). Ultra Tune’s contravening conduct was characterised and assessed by the Full Court as “egregious inadvertence” (at [59] and [70]-[72]).

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Consumer law, torts and trade marks Whether conduct in the course of an industrial dispute (i) infringed trade mark, (ii) was misleading or deceptive or (iii) injurious falsehood – “in trade or commerce” requirement for misleading or deceptive conduct In National Roads and Motorists’ Association Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1491 (11 September 2019) the applicant (NRMA) brought a proceeding alleging that the respondent (MUA) engaged in trade mark infringements, misleading or deceptive conduct and committed the tort of injurious falsehood. The Court dismissed the NRMA’s case on all bases.

The impugned conduct occurred in an industrial dispute relating to the wages and conditions of employees of a ferry business owned by the NRMA. The NRMA’s claims included that, as part of the industrial dispute, the MUA used the NRMA’s word and device marks, and made false or misleading statements which were detrimental to, and designed to injure, the NRMA and its brand.

In relation to the claims of misleading or deceptive conduct, the central issue was whether the conduct was “in trade or commerce”. The Court considered and applied the principles from the seminal High Court case of Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 (at [132]). The Court also discussed the body of caselaw which indicates that it is not the intention of ss18 and 29 of the Australian Consumer Law (or its predecessor) to govern public or political debate (at [133]-[149]). It was held that the relevant conduct of the MUA was not conduct “in trade or commerce” (at [154]). Griffiths J explained at [135]: “It was properly acknowledged by [Counsel for the NRMA] that there is no precedent which establishes that the conduct of a trade union or its members in campaigning for improved wages or conditions of employment constitutes conduct ‘in trade or commerce’. Conduct

in the course of an existing employment relationship is unlikely to constitute conduct ‘in trade or commerce’ even where it is the conduct of the parties to the relationship itself. . . Similarly, I consider that statements by an employer to its employees in the context of a proposed enterprise agreement will not generally constitute conduct ‘in trade or commerce’. By analogy, representations made by a trade union in the context of an industrial campaign in relation to the existing conditions of employment of employees will generally fall outside conduct that is ‘in trade or commerce’”.

The claim based on the tort of injurious falsehood failed because the relevant statements and representations were not made maliciously and because the NRMA did not establish actual damage in the relevant legal sense (at [191]-[219]).

Evidence and industrial law Accessorial liability – inferences and the rule in Blatch v Archer In Fair Work Ombudsman v Hu [2019] FCAFC 133 (16 August 2019) the Full Court dismissed the appellant’s (FWO) appeal. The underlying case concerned whether workers who picked mushrooms were “casual employees” and were not paid in accordance with the relevant award. One respondent admitted contravening s45 of the Fair Work Act 2009 (Cth) (FW Act), which provides “A person must not contravene a term of a modern award”. The FWO appealed the trial judge’s decision that other respondents were not “knowingly involved” and therefore a person involved in a contravention within the meaning of s550 of the FW Act. The majority concurred with the trial judge’s refusal to infer that the relevant person lacked certain knowledge (namely, the trial judge could not infer that Mr Marland knew that the employees were casual employees) (at [33]-[48]).

Certain potentially relevant witnesses (including Mr Marland) were not called to give evidence by the respondents.

An issue raised in the appeal issue was

whether the trial judge erred in applying the principles in Jones v Dunkel too narrowly and erred in not applying the approach in Blatch v Archer (1774) 1 Cowp 63, (1774) 98 ER 969. The former case is more well-known that the latter.

The rule in Blatch v Archer sought to be invoked by the FWO was Lord Mansfield’s statement that: “. . . [i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”.

The majority held that on the facts of the present case, it lead to no different result whether recourse is had to the observations of Kitto J in Jones v Dunkel or those of Lord Mansfield in Blatch v Archer (at [55]). Flick and Reeves JJ explained at [56]: “Although on the facts of the present case considerable reservation may be expressed as to whether an adverse inference was available to be drawn against Mr Marland, by reason of him being in possession of sufficient information to arouse a not inconsiderable suspicion as to the employees being casual employees, and thus a ‘basis for concluding' (cf. Hellicar [2012] HCA 17 at [168], (2012) 247 CLR at 413) that he in fact knew that the employees were casual employees, neither Blatch v Archer nor Jones v Dunkel can be relied upon to ‘convert conjecture and suspicion into inference’: cf. Council of the Law Society of the ACT [2015] ACTCA 20 at [56]. The more so is this the case in the present appeal in

circumstances where there was no comparable basis for imposing upon the Respondents the same expectation as to “fairness” in the conduct of the litigation as was assumed (but not decided) to be imposed upon the Australian Securities and Investments Commission in Hellicar: [2012] HCA 17 at [147] and [152], (2012) 247 CLR at 406 to 407”.

threat to human life or safety, being the Queensland Shark Control Program; and (ii) to conduct a research program comprising certain specified studies.

The AAT varied the decision under review and the appellant challenged the AAT’s decision on various administrative grounds, all of which were dismissed by the Full Court.

The dissenting judgment of Bromberg J principally concerned the proper construction of cl 15 of the Horticultural Award 2010. Flick and Reeves JJ disagreed with Bromberg J’s approach and held that recourse to the industrial context out of which cl 15 emerged cannot be relied on as a means of construing cl 15 contrary to the clear terms employed (at [30]).

Among other matters, there was consideration of the “precautionary principle”. The precautionary principle is one of the “principles of ecologically sustainable use” in s3AB of the Great Barrier Reef Marine Park Act 1975 (Cth). Section 3(1) of that Act defines the “precautionary principle” to mean “the principle that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage”. The precautionary principle is also defined in the same terms in s391(2) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Allsop CJ and Greenwood and Robertson JJ rejected the ground of appeal that the AAT misunderstood or erred in applying the precautionary principle (at [119]-[128]).

Administrative law and environment law Appeal from AAT – the precuationary principle In State of Queensland (Department of Agriculture and Fisheries) v Humane Society International (Australia) Inc [2019] FCAFC 163 (18 September 2019) the Full Court dismissed an appeal on a question of law from a decision of the Administrative Appeals Tribunal (AAT).

The primary decision under review by the AAT was the decision of the Great Barrier Reef Marine Park Authority to grant two permissions under the Great Barrier Reef Marine Park Regulations 1983 (Cth) to the applicant to use and enter the Marine Park (i) to conduct a program to take animals or plants that pose a

Dan Star QC is a Senior Counsel at the Victorian Bar, ph (03) 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

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HIGH COURT JUDGMENTS Andrew Yuile Owen Dixon Chambers West, Melbourne

Limitation of actions Recovery of debts – conflicting limitations periods In Brisbane City Council v Amos [2019] HCA 27 (4 September 2019) the High Court considered which of two potentially overlapping limitation periods applied to the appellant’s action. Pursuant to statutory powers, the appellant levied rates and charges against the respondent, the owner of land in Brisbane. Statute also provided that “overdue rates and charges are a charge on the land”. The appellant brought an action to recover unpaid rates levied between 1999 and 2012.

A number of defences were raised, but the High Court appeal related only to a limitation period pleaded. Section 26(1) of the Limitation of Actions Act 1974 (Qld) provided for a 12-year limitation period for actions “to recover a principal sum of money secured by a mortgage or other charge on property”. That provision encompassed debts created by statute and secured by charge. Relevantly for this appeal, s10(1)(d) provided for a sixyear limitation period for “an action to recover a sum recoverable by virtue of any enactment”.

The appellant argued that only the longer of the two limitation periods applied.

The High Court said that one cannot understand the overlap between the sections without understanding their history. There was a long history of predecessor provisions and authorities dealing with interpretation of such provisions, English and Australian. Until the late 1800s, the overlap was dealt with by confining the longer limitation period to actions for real or proprietary claims, and the second and shorter period applied only to personal claims.

However, in Barnes v Glenton [1899] 1 QB 885 it was held that a defendant could plead either limitation period where there was overlap. The shorter period for personal claims would not be extended by the s26 predecessor. The appellant in this case argued that Barnes v Glenton should not be followed. The High Court

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unanimously rejected that submission.

The case had been followed consistently for more than 100 years and was the understanding on which the current provision had been drafted. The Court agreed with the majority from the Court of Appeal and dismissed the appeal. The defendant could plead either limitation period where there was overlap. Kiefel CJ and Edelman J jointly; Gageler J, Keane J and Nettle J each separately concurring. Appeal from Court of Appeal (Qld) dismissed.

Personal injury Inferences of fact – error in material inferences at trial – review of Court of Appeal Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2019] HCA 27 (4 September 2019) concerned the correctness of inferences of fact drawn by the trial judge. The case concerned a car accident in which the appellant was rendered an incomplete tetraplegic. The critical issue at trial was, who was driving the car?

The appellant and his family argued that the father was driving. The respondent argued that the appellant was driving and that he had been moved by his father into the back of the car following the crash. The driver of the other car involved in the crash observed the father, very shortly after the crash, in the back of the car removing one of the children.

There was blood on the driver’s side airbag belonging to the appellant. The trial judge found that the appellant was driving the car.

On appeal, the Court of Appeal found critical errors in the reasoning of the trial judge. McMurdo JA said that, absent the DNA evidence, he would have found that the father was driving the car. However, the DNA evidence was such that the trial judge’s finding could not be said to be wrong. The High Court held that judicial restraint in interfering with a trial judge’s findings are limited to findings likely to have been influenced by impressions

about witnesses and reliability. Aside from that, the Appeal Court is in as good a position as the trial judge to draw inferences from facts found. In this case, having rejected critical planks in the trial judge’s reasoning, the Court of Appeal had to weigh the conflicting evidence and decide for itself what was the correct inference to draw. Further, the view that the DNA evidence was persuasive failed to consider an important assumption underlying expert evidence about the DNA, that the appellant was unrestrained by a seatbelt. However, the Court of Appeal found, consistent with the evidence at trial, that the driver was wearing a seatbelt. That finding required consideration of further expert evidence about seatbelts, which would have prevented the driver’s face (and blood) coming into contact with the airbag. The High Court assessed the evidence and inferences for itself, and held that the better conclusion was that the father was the driver. Consequential orders were made allowing the appeal. Bell, Gageler, Nettle and Edelman JJ jointly; Kiefel CJ separately concurring. Appeal from the Court of Appeal (Qld) allowed.

Costs Legal practitioners acting for themselves – Chorley exception In Bell Lawyers v Pentelow [2019] HCA 28 (4 September 2019) the High Court considered whether a barrister acting for themselves in litigation should be able to recover costs for their time spent in the matter. As a general rule, a self-represented litigant cannot get recompense for the value of their time spent in litigation. However, there is a general exception to that rule for selfrepresented litigants who also happen to be solicitors. The exception was established in London Scottish Benefit Society v Chorley (1884) 13 QBD 872.

In the present case, the appellant retained the respondent, a barrister, to act in proceedings in the NSW Supreme Court. At the end of the proceedings there was a dispute over

the respondent’s costs. The respondent was unsuccessful in the local court but successful on appeal in the Supreme Court. Costs were awarded to the respondent. The respondent was represented by a solicitor in the local court and by senior counsel in the Supreme Court. She also attended court herself a number of times and was engaged in preparation of the case. The appellant disputed the respondent’s costs.

The issue for the High Court was whether the Chorley exception for solicitors should be extended to self-represented litigants who were also barristers. The Court unanimously held that the Chorley exception should not extend to barristers and a majority of the Court held that the Chorley exception should not be recognised as part of the common law of Australia at all (Nettle J held that there was no need or justification to decide the second point). The plurality said the exception was “an affront to the fundamental value of equality of all persons before the law”, which could not be justified by policy. It was also inconsistent with the relevant statutory definition of “costs”. Kiefel CJ, Bell, Keane and Gordon JJ jointly; Gageler J, Nettle J and Edelman J separately concurring. Appeal from the Court of Appeal (NSW) allowed.

Criminal law Private prosecution – authority to prosecute federal crime – requirement for Attorney-General consent Taylor v Attorney-General (Cth) [2019] HCA 30 (Orders 19 June 2019; reasons 11 September 2019) concerned whether a private citizen could institute a prosecution for crimes against humanity under the Criminal Code (Cth). The plaintiff lodged with the Melbourne Magistrates’ Court a charge sheet and summons alleging that Aung San Suu Kyi (president and foreign minister of Myanmar) had committed crimes against humanity contrary to s268.11 of the Criminal Code.

Section 13(a) of the Crimes Act 1914 (Cth) provides that, unless the contrary intention appears in the relevant Act, any person may institute proceedings for commitment for trial in respect of any indictable offence against the law of the Commonwealth. Section 268.121(1) of the Criminal Code provides that proceedings for an offence against

Div 268 of the Code must not be commenced without the consent of the Attorney-General, and s268.121(2) of the Code provides that an offence against Division 268 of the Code “may only be prosecuted in the name of the Attorney-General”. The plaintiff sought the consent of the Attorney-General to commence his prosecution, which was refused.

The plaintiff commenced judicial review proceedings in the original jurisdiction of the High Court. The parties stated questions for the Full Court’s consideration concerning whether the Attorney-General’s decision was susceptible to review on the grounds presented. However, a majority of the High Court held that it was unnecessary to answer those questions. The case was instead decided on an anterior question about whether Div 268 precluded the plaintiff’s prosecution. A majority of the Court held that by providing that an offence against Div 268 could only be prosecuted in the name of the AttorneyGeneral, there was a contrary intention for the purposes of s13(a) of the Crimes Act. That limit imposed an absolute restriction and exhaustive statement on the right to prosecute. It followed that the Attorney-General’s decision not to consent was the only decision legally available in this case. The relief sought by the plaintiff had to be refused. Kiefel CJ, Bell, Gageler and Keane JJ jointly; Nettle and Gordon JJ jointly dissenting; Edelman J separately dissenting.

Answers to Special Case given.

Constitutional law Chapter III – parole periods – extension of non-parole by naming person In Minogue v Victoria [2019] HCA 31 (11 September 2019) the High Court upheld the constitutional validity of provisions specifically preventing the parole of the plaintiff except in very limited circumstances.

The plaintiff was convicted of the murder of Angela Taylor in 1988. The Court set a non-parole period of 28 years, which ended on 30 September 2016.

On 3 October 2016, the plaintiff applied for parole. On 14 December 2016, the Corrections Act 1986 (Vic) was amended to insert s74AAA, which prevented the Parole Board (“Board”) making parole orders where the prisoner had been sentenced to a non-parole period for the murder of a person who the prisoner

knew or as reckless as to whether the person was a police officer, except where the Board was satisfied that the prisoner was in imminent danger of dying or was seriously incapacitated, so that the prisoner no longer had the physical capacity to do harm to any person.

The plaintiff commenced proceedings in the High Court’s original jurisdiction challenging the constitutional validity of s74AAA. On 1 August 2018, the Corrections Act was further amended to insert s74AB. That section specifically applied to the plaintiff and prevented the Board from allowing his parole unless the Board was satisfied that: the plaintiff was in imminent danger of dying or was seriously incapacitated, such that he no longer had the physical capacity to do harm to any person; the plaintiff had demonstrated that he does not pose a risk to the community; and other circumstances justified the order.

The plaintiff alleged that the amended provisions were contrary to Ch III of the Constitution because they impose additional or separate punishment by extending the non-parole period; they constitute cruel, inhuman or degrading treatment or punishment contrary to the Bill of Rights 1688; and they are inconsistent with the constitutional assumption of the rule of law.

The High Court held that the new provisions were relevantly indistinguishable from the provision upheld in Knight v Victoria (2017) 261 CLR 306, where the Court refused to reopen its decision in Crump v New South Wales (2012) 247 CLR 1. The sections did not alter the sentence or impose additional punishment, nor did they involve the exercise of judicial power. They do no more than change the conditions that had to be met before the plaintiff could be released on parole.

This conclusion meant that the second and third arguments of the plaintiff did not need to be considered. Section 74AB was valid, and as such, s74AAA did not need to be considered. Kiefel CJ, Bell, Keane, Nettle and Gordon JJ jointly; Gageler J and Edelman J separately concurring. Answers to Special Case given.

Andrew Yuile is a Victorian barrister, ph (03) 9225 7222, email ayuile@ vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au.

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Acacia Prison

Corrective Services Custodial Operational Policies and Procedures Project Corrective Services, Department of Justice

For over a decade, Corrective Services has recognised the need to revise, consolidate and simplify the prison and youth custodial operational policies and procedures.

The main issues about the operational policy framework for the management and control of prisons and detention centres are as follows: •

•

•

A number of statutory and policy instruments are inconsistent with legislation.

There is no clear practice or process to creating, maintaining, reviewing and amending policy instruments.

Overly complex and multi-level rule base exists for prison and youth custodial operations. Currently, there are over 2000 custodial operational policies and procedures.

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•

A large number of policies are not contemporary and reflect outdated procedures.

•

Recommendations from external agencies (e.g. Office of the Inspector of Custodial Services, Corruption and Crime Commission, Royal Commissions).

•

Consult with relevant internal and external stakeholders in the consultation process, and work closely with and draw expertise from operational officers.

•

Consult with State Solicitor’s Office for legal advice on high risk policies and procedures.

•

Conduct a Diversity Impact Assessment for each policy to promote equality and awareness of the rights of diverse service users.

•

Seek approval from the Project Steering Committee (chaired by the Commissioner).

Current Situation In July 2018, the Custodial Operational Policies and Procedures project commenced to establish clear, simplified, consistent custodial operational policies and procedures to ensure officers involved in the corrections system to know what is required of them. The 18 month project will deliver policies and procedures for prisons and Banksia Hill Detention Centre (BHDC) throughout Western Australia.

In developing the policies and procedures during Phase 2, the project team will: •

Consider and apply relevant legislation.

•

Consider and apply international and national standards (e.g. UN Rules, Guiding Principles for Corrections in Australia).

Law Council Update

Law Council backs push for increase to minimum age of criminal responsibility The Law Council of Australia has welcomed the introduction of legislation to Federal Parliament, which seeks to increase the minimum age of criminal responsibility for Commonwealth offences to 14 years.

Law Council President, Arthur Moses SC, said increasing the minimum age of criminal responsibility, if followed by all Australian jurisdictions, would help improve justice outcomes for some of Australia’s most vulnerable children, especially First Nations young people.

The objective of the Crimes Legislation Amendment (Age of Criminal Responsibility) Bill 2019, introduced by Centre Alliance MP Rebekah Sharkie, is consistent with Law Council policy and recognises Australia’s international obligations under the United Nations Convention on the Rights of the Child.

“Across all Australian jurisdictions the minimum age of criminal responsibility is currently 10 – this is a national disgrace and a national tragedy,” Mr Moses SC said.

“How is it that a child can’t sign up to Facebook until the age of 13 but can be placed in detention at the age of 10? It makes no sense and has longterm impacts. There is clear evidence childhood detention increases the risk of adult imprisonment.

“This bill is a good first step to prompt a debate in parliament and consider broader reforms that need to take place to ensure community safety, including diversionary, preventative and welfarebased programs. The Law Council will offer its assistance to ensure the final form of the bill is effective.

“I congratulate Ms Sharkie for her foresight in introducing this initiative and praise her compassion. The fact is our Attorneys-General know or should know that raising the minimum age of criminal responsibility is the right step but appear to lack the political courage to do what is right.

“What we need is bipartisan support for this policy to ensure our Attorneys-

General don’t need to look at this through a political prism.”

The bill’s introduction comes ahead of the release of a report by the Council of Attorneys-General, examining whether the minimum age of criminal responsibility should be increased across Australian jurisdictions.

In June, Law Council Directors unanimously voted in favour of a new policy regarding the minimum age of criminal responsibility. The Law Council supports an increase from 10 to 14.

“There is a significant evidence base relating to child brain development that supports a higher age as children are not sufficiently able to reflect before acting, or to comprehend the consequences of a criminal action,” Mr Moses SC said.

“Children belong in their communities, not in detention. Imprisonment should be a last resort when it comes to children, not a first step.”

Raising the minimum age of criminal responsibility to 14 would also remove the need for courts to consider the confusing and complex doli incapax presumption, which assumes a child under 14 does not possess the knowledge required to form criminal intent.

Gains being made though gender gap in barrister briefings remains, report finds Female barristers are starting to receive more briefs and are more often recommended for work by their colleagues in new or current matters, according to new Law Council of Australia data.

But the Law Council’s Equitable Briefing Policy Annual Report 2017-18 shows female barristers still lag behind male colleagues when it comes to the number and value of briefs.

It found female barristers received a quarter of the 23,170 briefs reported by the 44 briefing entities for the period.

During the reporting period, male barristers received 83 per cent of the total reported fees.

Chair of the Law Council’s Equal Opportunity Committee, prominent

female barrister Kate Eastman SC, said while there was obvious room for improvement, the report set a foundation for the profession to continue to build upon.

“It’s early days for the Equitable Briefing Policy but we’ve already seen a change in briefing practices, with firms and clients actively identifying a barrister who is best for the job rather than just the barrister they always use,” Ms Eastman said.

“This benefits all barristers, shifting the focus to a barrister’s expertise and experience. The firms have told us they welcome a deeper and wide pool of talent of Australian barristers.

“Importantly, the work of experienced and talented female barristers is receiving more coverage, highlighted in big cases and in a string of recent royal commissions.

“We know the legal profession is changing – the majority of Australian law students and solicitors are women. So if Australian bars want to remain relevant in the future, they also need to change.

“But change doesn’t happen by accident.

We need to embrace diversity and provide real opportunities for female law students and practitioners at the bar.

The legal profession has the opportunity to lead by example in ensuring equal opportunity in our workplaces and developing effective strategies to eliminate the gender pay gap.”

Law Council President, Arthur Moses SC, said while the report did show some gains for female barristers, the results illustrated a lot more work needs to be done.

“The fact is that male barristers, as a group, received about three times the number of briefs and five times the value of briefs than their female counterparts.

This is not acceptable and as a profession we can do much better,” Mr Moses said.

“It is good to see that in junior ranks targets are being met for female barristers, who received 30 per cent of the total briefs. This is a trend we must support and nurture.

“It is also interesting to note female barristers are more often recommended to take on new and current matters than males.”

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

Property – Joint decision to obtain disability insurance – Contributions based adjustment made for wife who paid the premiums In Falcken & Weule [2019] FamCAFC 140 (16 August 2019) the wife suffered a stroke during a 21 year marriage, receiving $235,152 from her income protection insurer.

Having found a net asset pool of $1.8 million, a judge of the Family Court of Western Australia assessed contributions at 53:47 favouring the wife, with no further adjustment under s 75(2). In dismissing the husband’s appeal, the Full Court (Strickland, Aldridge & O’Brien JJ) said ([14]-[15]): “The evidence relied on by the husband demonstrates that at some stage during the marriage the parties agreed that they should each obtain income protection insurance … Thereafter, the wife paid the premiums, seemingly from her income. Nonetheless, it was a joint decision to use family funds to obtain income protection.

We accept that this can be a relevant consideration but we do not accept the husband’s contention that it follows … that there has been an equal contribution to the receipt and use of the benefits of the policy.”

The Court referred (at [16]-[21]) to the authorities and said (from [22]): “The upshot of these authorities is that a joint decision to take out insurance is a contribution by both parties. It is worth recording that in none of these cases was that contribution 42 | BRIEF NOVEMBER 2019

regarded as being anywhere close to equal.

[23] The primary judge recognised the disability insurance payment was received by the wife for being totally and permanently disabled. It was compensation for her not being in a position to receive income for what would otherwise have been the rest of her working life.

[24] It was, however, not used by the wife to support her over those years, but was entirely spent on supporting the family prior to separation.

[25] Consistent with the above authorities, the primary judge found that this was a significant contribution by the wife.

[26] Although his Honour did not expressly refer to the joint decision to take out insurance, that does not mean that it was not taken into account. … ”

Property – Husband granted sole occupancy of his premarital property – Wife also ordered to remove her caveat In Tailor [2019] FamCA 383 (2 July 2019) McEvoy J an 83 year old wife and his 90 year old husband lived together in a house which he had owned for 30 years before their marriage. The husband had other assets and the wife owned an apartment. Conflict led to the wife obtaining an intervention order.

The husband filed an application for sole occupation of the house which the wife opposed, arguing that the parties could continue living together. The wife lodged a caveat, alleging that she had stayed in the marriage due to an agreement that

she would receive the house in the husband’s will and that the husband had broken his promise by revoking that will.

The husband (who had undertaken through his lawyer not to deal with the property without notice) also sought an order for the removal of the wife’s caveat, opposed by the wife who argued an equitable interest. The husband deposed ([23]) that “the presence of the wife … [wa]s causing him acute strain and distress in circumstances where he is extremely elderly and unwell, and that her presence cause[d] difficulty to his carers ( … )”.

McEvoy J granted sole occupancy, accepting the husband’s submission [41] that a court must consider what is ‘proper’ for the purpose of s 114(1) and the Full Court’s rationale in Davis [1982] FamCA 73 where it was said: “All that is necessary … is that the Court should regard the situation between the parties as being such that it would not be reasonable to expect them to remain in the home together.”

Concluding ([50]) that “in all the circumstances it would not be reasonable … to expect the parties to continue to reside in the … property together’, the Court also ordered the wife to remove her caveat, saying ([61]-[73]) that the wife had failed to satisfy the court that “there [wa]s a serious question to be tried … to justify … the preservation of the status quo”; that it [wa]s … arguable that the caveator ha[d] a caveatable interest” and, if so, that “the balance of convenience favour[ed] the retention of the caveat”.

Spousal maintenance – Section 44(3) time limit did not apply to wife’s maintenance application where two prior orders had been satisfied In Blevins [2019] FCCA 1923 (11 July 2019) Judge Baker heard an Initiating Application for spousal maintenance of $400 per week, filed 23 years after the parties separated (21 years after their divorce). The parties were 69 and 71. A final maintenance order was made in 1999, requiring the husband to pay $750 per month until 8 July 2009 and providing that “thereafter the wife shall be at liberty to seek the payment of further spousal maintenance”.

In 2009 a further final order was made for lump sum maintenance of $275,000 which contained a notation that the payment would “finally determine any obligation by the former husband to provide … maintenance to the former wife”.

In 2017 the wife lost her ability to claim an aged pension, saying that she was reliant on her savings and superannuation, which did not generate enough income to support her. The husband sought dismissal of the application, arguing that the wife was out of time and that he would suffer prejudice if leave were granted, he having remarried and attempted to achieve finality through the previous orders.

The Court ([37]-[38]) cited Atkins & Hunt [2016] FamCAFC 230 (FC) (followed in Lambton & Lambton (No. 2) [2017] FamCAFC 230) in which it was said: “ … [Section] 44(3) does not impose an impediment to the wife pursuing an order for maintenance pursuant to s 74 … so as to seek the revival of ‘an order previously made in proceedings with respect to the maintenance of a party’.

Indeed … the Act contemplates applications for maintenance that sit squarely outside any ‘finality’ said to be effected by the earlier section.”

Judge Baker concluded ([40]-[41]):

“The … maintenance order made in proceedings with respect to the maintenance of the applicant in 1999 is an order previously made. The order was properly made within time.

I consider that the applicant therefore does not need to obtain leave pursuant to s 44(3) …

This means that potentially the respondent may be required to pay … maintenance, if he has the ability to pay and the applicant can demonstrate a need. This will be determined at trial.”

Children – Mother’s unilateral relocation – Review of registrar’s refusal to exempt father’s filing of FDR certificate In Conlon [2019] FCCA 2195 (13 August 2019) the mother unilaterally relocated with the parties’ 5 month old baby to live with her parents in a town 2.5 hours’ drive away.

After a police incident at the home the mother left but returned and the parties attended counselling.

After counselling the father went to Sydney for the weekend, but came home to find that the mother and child had left.

The parties arranged a meeting for father and child at a mid-way town but the father applied for an urgent recovery order, seeking an injunction for the return of the mother and child and an order that he spend time three times per week with the child or an order that the child live with him if the mother did not return.

A registrar refused to file the father’s application on the ground that there was no family dispute resolution certificate, nor an exemption made out under s 60I(9). Upon the father’s application for review of that decision, Judge Terry said (from [23]): “The father’s solicitor submitted that the matter was urgent because it was important that the father was able to spend regular short periods of time with the child in order to

establish a strong bond with him and that without court intervention compelling the mother to return … this would not occur.

[24] He submitted that the father had a strong case to compel the mother to return because she had unilaterally relocated. In support of that he referred to C & S [(1999) FamCA 66] …

[25] The father gave no evidence about having sought any mediation to resolve the parenting issues. When I asked the father’s solicitor why, he replied to the effect of ‘Do you have any idea how long that takes?’

The Court concluded ([32]-[33]): “ … [N]ot all matters can stay out of court. Issues such as family violence, drug use or alcohol abuse, the fact that a parent has a personality disorder or a serious mental illness or that a parent has an unrealistic expectation about outcomes and proposes equal time for a young child or has an ulterior motive for proposing no time just to name a few can make it either undesirable for dispute resolution to be attempted or impossible for even a skilled mediator to assist parties to reach their own agreement.

Based on the father’s affidavit no such issues exist in this case. … [T]he case described by the father is the kind of case where the parents should be making a genuine effort to resolve their dispute before coming to court.”

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

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

Spring is a time your Dog relishes in every respect: the bush and the fields positively glisten from the recent rains, grass is greener than one can imagine at any other time, the spring flowers nod their heads in their magnificent finery, birds wake at dawn to gather food for their chicks, and then there is the bonus as that indescribable smell of new mown grass fills the air.

Yet on the international scene what on earth is going on?

In the United Kingdom on 23 September 2019 the Supreme Court ruled in R (on the application of Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41, a matter described as arising “in circumstances which have never arisen before and are unlikely ever to arise again. It is a ‘one off’” that the Prime Minister’s advice to Her Majesty to prorogue Parliament was unlawful: “It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason - let alone a good reason - to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.” (at paragraph 61).

On the other side of the Atlantic, on 24 September 2019, the day following that decision, the Speaker of the House of Representatives, Nancy Pelosi, announced an intention to commence impeachment proceedings against President Trump, following disclosure of a July 2019 phone call between President Trump and Ukrainian President Zelensky, when President Trump allegedly asked him to investigate some actions or investments of or connected to former Vice President Biden or his son.

Article II Section 4 of the Constitution states: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Of course, there will be a long and winding road to follow while those proceedings wend their way through the Congress and Senate, so where this will all go remains to be seen. Even at the time of writing there have been and continue to be further accusations, Tweets and never-ending news articles as “whistleblowers” emerge and provide evidence or information of the allegations on which it is suggested the impeachment proceedings will be based.

To the mind of a simple Dog it is extraordinary to contemplate the situation where, on the one hand, the recently appointed Prime Minister of the United Kingdom, with its Parliamentary system and the conventions which make it work, is held to have acted unlawfully.

On the other hand, it is even more surprising that President Trump, as the elected leader of the USA, faces the prospect of impeachment.

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What has caused these events to occur, in what are probably the greatest democracies in the world?

Perhaps in that context we in Western Australia are no less immune from such issues, as demonstrated by the recently commenced litigation arising from the investigation by the Corruption and Crime Commission of the use of electoral allowances: the Attorney General has commenced proceedings against the Legislative Council claiming it has acted beyond power in refusing to allow the Clerk of the Council to comply with a notice to produce to the CCC all documents relating to that investigation which are not privileged. In turn, the Legislative Council is suing the CCC, claiming that its notice to produce is too wide, and beyond its powers. It also claims that only it can determine privilege, so that if it decides to do so, and the CCC cannot have any documents at all until it does. Newspaper articles suggest there are more than 90,000 documents, of which it is said that when asked to identify those in respect of which the Legislative Assembly claims privilege, none have been identified. Your Dog wonders on what basis does the Parliament of Western Australia claim that it is not answerable to produce such documents, especially if these documents evidence or relate to unlawful conduct?

It is recognised (Baker v Campbell (1983) 153 CLR 52 at 67) in the sphere of legal professional privilege that communications between solicitor and client are not privileged if made for the purpose of committing or furthering a crime or fraud.

Your Dog would have thought that the position under Parliamentary privilege would be no different. If crimes have been committed or circumstances have arisen giving rise to a suspicion that crimes were committed, surely the Parliament of the State would hand that material to the Commission for it to investigate and to make such findings and recommendations as may be apposite? One would also hope that the Commission would find there had not been an abuse of allowances!

Your Dog has no answer to the question posed in the second paragraph, other perhaps that to reflect on the adage of the corruptive influence of power in the minds of those appointed to exercise the functions that go hand in hand with appointment to public office.

On a different note, it was fantastic to see how the Cherry Blossoms of Japan fared in the Rugby World Cup, reaching the quarter-finals for the first time ever. The group stage match between Japan and Scotland was one of those games which swung both ways, with a nail-biting finish, whether a supporter of one side or the other. Sadly the Cherry Blossoms could not progress to the semi-finals, but were an inspiration to sports fans in their home country and around the world.

Your Dog

45

The Tale of the Amorous Gardener

By John McKechnie QC Mr Ah Chuck lived nearby to Mr and Mrs Hedges and their family in Mãngere, New Zealand.

Mr Ah Chuck was a market gardener and presumably when the vegetables were growing, had time on his hands. At all accounts, he often visited the Hedges household and was friendly with Mrs Hedges. Very friendly.

In February 1929, the Hedges welcomed a new addition to the family. But all was not sunshine and happiness.

Six months after the birth, Mr Hedges instituted proceedings for divorce! And the grounds – adultery by Mrs Hedges with none other than Mr Ah Chuck.

Mr Hedges was successful. A divorce was obtained.

Mrs Hedges was in a pickle. There was a child to raise. So action was taken against Mr Ah Chuck to pay maintenance.

Now, one might have thought that Mr Ah Chuck didn't have a legal leg to stand on.

A number of witnesses testified to the apparent closeness of Mr Ah Chuck and Mrs Hedges. The Midwife and the attending Doctor both said the baby looked "part Mongolian".

And to top it off, Mrs Hedges testified that she had intercourse with Mr Ah Chuck on one occasion and that he was the father of her child.

Pretty overwhelming one might think and it was certainly enough to obtain a divorce.

But the law moves in mysterious ways sometimes.

Justice Herdman posed himself the issue: Apart from the evidence of Mrs Hedges, I am invited to declare that because a Chinese neighbour was an occasional visitor to the house and appeared to be on intimate terms with Mrs Hedges and that because during wedlock a child is born to the woman which it is said exhibits certain physical characteristics that we associate with Mongolian people, I must decide that the presumption of legitimacy has been destroyed.

46 | BRIEF NOVEMBER 2019

Well, yes actually.

However, the Judge was more than equal to the task.

I am not aware of any authority that goes to the length of deciding that the circumstances are sufficient to justify a finding of illegitimacy and there is no accounting for the vagaries of nature.

So, Mr Ah Chuck was spared the cost of providing maintenance for the child born as a result of his adulterous relationship.

Mr Magill however was not spared – at least for a time. Mr Magill lived in Victoria.

Mrs Magill had two children to another man while married and persuaded her husband they were his children. After their divorce, he continued to pay child support until he learned of the true facts.

Then he sued his former wife for the little used tort of deceit.

He succeeded at first, then failed on appeal and in the High Court.

In the High Court, without any conscious attempt at irony, Mrs Magill's counsel argued that the appeal was misconceived.

The High Court noted that the common law presumption of legitimacy was no more (sorry Mrs Hedges, you were in the wrong time, wrong country).

The Court split on whether the tort of deceit could, on occasion, be a remedy for lies told by one partner to another. It might be. Then again, it might not be.

So before you answer the question "Does my bum look big in this?" think of the legal limbo you may be entering.

And women, tread gently when asked to agree that "of course baldness is a sign of virility" lest you fall into the judicial jungle.

Adapted from Magill v Magill [2003] HCA 51, 226 CLR 551; Ah Chuck v Needham (1931) NZLR 559

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New Members New members joining the Law Society (October 2019)

Ordinary Membership

Associate Membership

Mr David Bond Greenwoods & Herbert Smith Freehills Pty Ltd

Ms Isabel Philip The University of Western Australia - Law Faculty

Ms Fiona Nelson Moray & Agnew Lawyers

Ms Caitlin Richards Curtin University

Mr Justin Smith Kroon Legal

Ms Anita Russell Southern Cross University Mrs Donna Todesco Murdoch University - School of Law

Restricted Practitioner Mr Daniel Purdy Hale Legal

48 | BRIEF NOVEMBER 2019

Events Calendar Stay up-to-date with the latest Law Society member events

With thanks to our CPD partner

NOVEMBER 2019 CPD Seminars

Membership Events

Thursday, 7 November A View from the Bench

Friday, 1 November YLC Mixed Netball Competition

Friday, 8 November Ethics on Friday: Journalists and Legal Ethics Wednesday, 13 November Cyber Risk â&#x20AC;&#x201C; Still Risky Business â&#x20AC;&#x201C; Webinar Wednesday, 20 November Building a Prosperous Firm

DECEMBER 2019 Membership Events Thursday, 5 December End of Year Celebration

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.

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