Brief April 2020

VOLUME 47 | NUMBER 3 | APRIL 2020

Your Law Society Your Community Here to Support You Since 1927, the Law Society has supported lawyers through the Great Depression, a World War, booms and recessions. In the difficult times we face as a result of COVID-19, it’s more important than ever to stay connected as a community. The Law Society is here to support you – together we are stronger.

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Volume 47 | Number 3 | April 2020

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CONTENTS

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FOLLOW US lawsocietywa.asn.au LawSocietyWA @LawSocietyWA

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ARTICLES 05

Interview with Dr Ronan Murray

06

Society Sundowner

07

YLC Rebrand Sundowner

08

The Brexit Cases

18

The Execution of Augustin De Kitchilan

20

YLC Mixed Beach Volleyball Competition

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

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

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

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

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Advertising enquiries to Manager Marketing and Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au

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Beyond the Equator Book Review

Communications and Design Officer: Charles McDonald

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New Annualised Wage Arrangements in the Legal Services Award

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REGULARS 02

President's Report

42

Law Council Update

04

Editor's Opinion

43

Drover's Dog

21

A Matter of Trust: The ATO’s Current Position on Trust Splitting

44

Quirky Cases: The School that Disappeared

32

Ethics Column

45

Cartoon

33

WA Case Notes

46

Professional Announcements

36

Federal Court Judgments

47

New Members

38

High Court Judgments

47

Classifieds

40

Family Law Case Notes

48

Events Calendar

Senior Communications and Media Officer: Andrew MacNiven RRP $16.00 incl GST. Printed by Vanguard Press

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

For details, contact brief@lawsocietywa.asn.au.

President: Nicholas van Hattem Senior Vice President: Jocelyne Boujos Junior Vice President & Treasurer: Rebecca Lee Immediate Past President: Greg McIntyre SC Ordinary Members: Rebecca Bunney, Daniel Coster, Nathan Ebbs, Ante Golem, Mark Hemery, Matthew Howard SC, Craig Slater, Brooke Sojan, Shayla Strapps, Paula Wilkinson Junior Members: Thomas Camp, Lea Hiltenkamp, Gemma Swan Country Member: Melita Medcalf Chief Executive Officer: David Price

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PRESIDENT'S REPORT Nicholas van Hattem President, The Law Society of Western Australia

Dealing with the unprecedented challenges of COVID-19 We are living in extraordinary times. When we reflect on 2020 in years to come, it will undoubtedly stand out as one of the toughest in Australia’s recent history. After the drought and extreme bushfires, we are now all dealing with the unprecedented challenges of the COVID-19 pandemic on a national and global scale.

In this very challenging time, it's more important than ever to stay connected and engage with your community. In the weeks and months ahead, your Law Society will continue to be there for you, to provide essential services and assist wherever possible to get you through this difficult period.

As the COVID-19 situation unfolds each day, we have made it a priority to keep our members updated about the latest developments, including those relating to the government, courts, tribunals and other relevant organisations.

This information is published on a dedicated COVID-19 hub on the Society’s website at lawsocietywa.asn.au/covid-19-information-andresources. I encourage you to visit this useful page, as it provides valuable information and resources for the legal profession.

The Society has taken important measures to ensure the health and wellbeing of its members, staff and other stakeholders and to enable the Society to continue to deliver essential services: • All staff are currently working remotely from home. Please feel free to contact our staff if you have any queries or concerns by emailing info@lawsocietywa.asn.au or calling (08) 9324 8600.

• We understand that many members are likely to be working from home for the foreseeable future and are increasingly accessing resources digitally. We also seek to minimise any opportunity for the virus to spread.

Therefore, after April (this edition), Brief will be published in digital format only.

• The start date for the commencement of the new Strategic Plan 2020-2023 and the Organisational Review implementation timeline as approved by Council in December 2019 is now deferred until January 2021.

Despite the new challenges, the important work of the Society’s Council continues, with meetings held remotely. You can read more about some of the Society’s recent advocacy work below.

LawCare WA – CoronaCare The Law Society’s health and wellbeing programme, LawCare WA, now includes a suite of dedicated support programs called ‘CoronaCare’ to help support you and your organisation manage through the uncertainty as a result of the emergence of COVID-19.

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CoronaCare includes a series of aligned support approaches specifically targeted at individuals and teams who are working is a significantly disrupted environment, and who are increasingly working from home. There are three new individual support services: • • •

Converge Connect Service Isolation Support Wellbeing Risk Assessments

Your Law Society membership provides complimentary access to this support programme. Visit lawsocietywa.asn.au/lawcarewa for more information and to access these resources.

2020/21 Law Society Membership Renewals The Law Society values your membership and appreciates that you may have difficulties in being able to afford the cost of renewing your membership as a result of COVID-19 pandemic.

We are already looking at ways we can assist members who find themselves in this situation and eligible members will now be able to pay their membership in 12 monthly instalments under the new part-payment plan.

Part-payment plan The Law Society is introducing a part-payment plan from 1 July 2020 to allow eligible members to pay their membership fees in 12 monthly instalments. The new part-payment plan will provide eligible members with a new flexible, convenient way to pay.

Law Mutual Update As you might appreciate, Law Mutual has received numerous requests to consider changing our insurance and payment requirements and associated procedures in light of the COVID-19 pandemic.

Such changes are not a simple matter as they involve not only considerations of our operational capability and financial impacts but also what is allowable under the relevant legislation and the views of the regulator, the Legal Practice Board (the Board). The latter is important as the payment of the annual contribution is the trigger for the issue of a compliance notice to the Board which is a necessary step for the issue of an annual practising certificate.

We are undertaking those considerations as a matter of some urgency.

If there are any changes to our requirements they will be published to insured practices and also on the Law Society COVID-19 Information Hub that is specifically devoted to the latest information on COVID-19 and associated issues relevant to legal practices and practitioners: lawsocietywa. asn.au/covid-19-information-and-resources.

Discussion Paper: Claims for NonEconomic Loss for Wrongful Death under the Fatal Accidents Act 1959 (WA) In December 2019, the Law Reform Commission of Western Australia published a Discussion Paper for Project 109: Claims for non-economic loss for wrongful death under the Fatal Accidents Act 1959 (WA) and requested a submission from the Law Society by 31 March 2020.

In March 2020 the Society’s Personal Injuries and Workers’ Compensation Committee considered the questions set out in the discussion paper and resolved it does not support amendments to the Fatal Accidents Act 1959 (WA).

A summary of the Committee’s reasons for the recommendation to Council has been published on the Law Society’s website.

Reforms to Strata Title Act Since the commencement of the review of the Strata Titles Act and related regulations Landgate has consulted the Law Society on a regular basis.

The Law Society was however not consulted on the commencement date for these reforms. The Society’s Property Law Committee considered the date that has been published, namely 1 May 2020 and wrote a letter to the Minister for Transport and Planning requesting that the commencement be deferred until not before 1 August 2020. The letter has been published on the Law Society’s website.

The Society’s Property Law Committee has also raised its concerns that a number of the strata titles reform initiatives will have resource implications for the State Administrative Tribunal.

The Law Society is seeking written confirmation from the Attorney General that the resource implications have been identified and will be adequately resourced.

Consultation draft of the Criminal Law (Mental Impairment) Bill 2020 (WA) On 13 February 2020, Dr Adam Tomison, Director General of the Department of Justice, wrote to the Society to seek comments on a consultation draft of the Criminal Law (Mental Impairment) Bill 2020 (WA) (Bill), which will repeal and replace the Criminal Law (Mentally Impaired Accused) Act 1996 (WA).

The Criminal Law Committee discussed the consultation draft of the Bill and made comments on and proposed amendments to several clauses in the Bill. These comments are set out in a draft letter to the Department of Justice – please see our website for more details.

You can find out more about the Society’s advocacy work and read full submissions at lawsocietywa.asn.au/law-reform-and-advocacy.

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

Whatever the prevailing circumstances when readers get to this Brief, COVID-19 will still be dominating our personal and professional lives.

Lawyers are, generally speaking, fortunate.

Technology places many in the enviable position of working efficiently (always a relative term) from home. Significant sectors of the profession, including judicial officers, are however unable to fully enjoy such advantages.

In a time of social distancing, the notion of a Society that binds and assists the profession, and the community, is all the more important.

This month’s cover is heartfelt, as the President’s Report, outlining the Society’s initiatives, reflects.

Brief is fortunate to have an interview with Dr Ronan Murray, an infectious diseases expert on the front line. As information on COVID-19 is incessant the interview delves into some broader questions, including about lawyers (spoiler alert: we come off pretty well).1 There will undoubtedly be teething problems with lawyers working for long periods cooped up with their families. Solicitors and clients may have to be prepared to receive draft pleadings or commercial documents that have “All work and no play makes Jack a dull boy” for 1,340 pages, exotically subparagraphed and in 17 different fonts.2 There is plenty of time for binge watching and reading. However, even when trying to stray from reading law with historical, fictional or academic or artistic works, the law, in its broadest sense is always lurking.

Sales of French Algerian-born Albert Camus’ The Plague have surged. And this doesn’t include those who have raided their University-age archive boxes triumphantly proclaiming to their significant other: “See – I told you we’d need this and I’m glad I insisted on keeping all this stuff you want to throw out” (that phrase being guaranteed to calm all domestic tensions in these cabin-feverish times).

The Plague pops up in many law journals.

When the plague strikes the Algerian town of Oran, legal scholars suggest it “dethrones” the law and the crisis becomes the “new law”3. The narrator, Dr Rieux, observes: “under its despotic rule everyone was under sentence”, the “law was no respecter of persons” and "the law was no longer a living being, but a petrified institution, no longer timely, only still intimidating". These are qualities that can infect the law when poorly conceived or applied and are signs of the law’s failure.

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The Plague is regarded as a metaphor for the Nazi occupation of France. It is also capable of being a metaphor for whatever threatens peace of mind/spirit, is oppressive, and must be railed against to establish one’s humanity and existence. Ironically, as time went on, for Jean-Paul Sartre, this was a pretty good description of Albert Camus.

Sartre’s play No Exit has the classic (and prescient) line: "Hell is other people".4 It involves characters locked together in an ornate room (Hell) waiting for more overt torments and tormentors, only to realise their tormentors are, and their punishment is, each other. This may resonate with readers, who might add to the play’s title “No Entrance Either” and “No Playing Outside”.5 Sadly, both binge watching and immersion in intellectual works may have a terrible sideeffect as when we emerge, freshly permitted dinner parties – absent chatter about sport – might be rendered intolerable6 by those who either express ad nauseam7 their passion for French Existentialism, or insist on doing a one-person performance of the Game of Thrones series, including that “shoes under the knees” act (formerly reserved for Toulouse-Lautrec impersonations) for Peter Dinklage’s Tyrion Lannister.8 Law journals are replete with articles about pandemics, which present questions as to the necessary infringement of rights, compelled acts and omissions, damage to livelihoods, and tensions in governance.

There also seems little new under the sun (e.g. legal articles from 2007/2008 repeatedly refer to the concept of “social distancing”)9.

The local Spanish Flu experience in 191910 rings some bells: fights between States, especially Victoria and NSW (NSW unilaterally closed it border) and between the Commonwealth and the States, the 13 point “1918 November agreement” disintegrating, to the chagrin of acting PM William Watt.

WA celebrated the new transatlantic railway by seizing trains, and when several cabinet members were stranded interstate upon border closures, they were, upon their return, no longer on speaking terms. This, in addition to the Fremantle dock riots, which included rancour over the quarantined ship Dimboola, probably contributed to the turbulent times that saw three State Premiers in that year (Henry Lefroy, Hal Colebatch and Sir James Mitchell).

There were school closures and compulsory quarantining, including, controversially, ships.

WA’s Woodman Point stands as testimony to the times, being our main quarantine station and the centre of The Boonah controversy (a ship carrying returning WWI servicemen).

The 1892 cholera pandemic provides, from the US, a tale with current local themes.

New York’s governor purchased the Beach Surf Hotel on Fire Island (off Long Island) for housing and treating passengers on a quarantined ship, leading to injunctions and a near riot; Fire Island was an escape for wealthy urbanites. The controversy also concerned Fire Island boasting its Blue Point oysters as the finest in the world, and fears that the oysters would be infected with cholera.

The bad news is that in fact oysters can carry a form of cholera, which is just more disturbing news to any practitioner who momentarily altered their lifestyle choices after reading Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540.11 Brief welcomes the new WA Case Notes, reports on pre-shutdown Society events, Robert Lindsay’s ‘The Brexit Cases’ review, Sally Gaunt on Canberra and the High Court, Dr Auke (JJ) Steensma on the old Fremantle Gaol, Mark Hemery on the new Legal Services Award, and (hopefully engendering a sense of normalcy) regular items like the Ethics Column, Court judgments notes, Quirky Cases, and the Drover’s Dog.

Endnotes 1.

Then again, Dr Murray is a long-time friend of the Editor.

2.

Some court and commercial documents might be certified as prepared by “free range” practitioners.

3.

A Yadav, “Looking for the Guilty – Look into a Mirror: Complicity in Oppression through Choosing Inaction, and the Resistive Potential of Tragic Counter Narratives in Albert Camus' the Plague and Gabriel Garcia Marquez' Chronicle of a Death Foretold”, 9 Socio-Legal Rev. 102 (2013).

4.

As comedian Dennis Miller observed “and he should know because he was from France”.

5.

Not to mention “No More than Three Bottles of Wine in One Purchase.”

6.

This is of less concern for the Editor who has not been invited to a dinner party since mid-2012.

7.

And even worse, read from Sartre’s Nausea.

8.

On the upside, it will finally be revealed that the much reviled in parts talk of sports is actually the (admittedly thin gruel) Clag brand glue that holds together the balsa wood edifice of dinner party conversation.

9.

E. B. Abbot, “Law, Federalism, the Constitution, and Control of Pandemic Flu” 9 APLPJ 185 (2008); F Batlan, “Law in the Time of Cholera” (2007) 80 Temp. L. Rev. 53.

10.

See H McQueen, “The Spanish Influenza Pandemic in Australia 1912-19”, Social Policy in Australia which these parts of the editorial draw heavily upon.

11.

Ah, oysters – is there anything they can’t do (to you)?

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

Interview with Dr Ronan Murray MB BS(UWA) FRCP(Ireland) DTM+H(Liverpool) FRACP FRCPA FACTM Dr Murray is an Infectious Disease Physician and Clinical Microbiologist at Sir Charles Gairdner Hospital and PathWest Laboratory Medicine WA, and Clinical Associate Professor in Microbiology and Infectious Diseases at the University of Western Australia. He has practised in urban and rural WA, NSW, the NT, the UK and Ireland, is widely published in the peer-reviewed medical literature, has written books and book chapters and has won numerous local, national and international grants and awards for his research and teaching. He regularly provides expert witness testimony for tribunals and Courts. He is a long-suffering Fremantle supporter, and is aware his bum looks big in his Ebola suit. The views expressed in this interview are his own.

Jason MacLaurin SC: This is far from your first rodeo, so to speak, with serious global outbreaks. With all the previous near-misses for Australia, why has COVID-19 been different and in such a profound way?

the front line. As in, put on the suit and get in the room with the patient, the 'superbug' and the other frontline staff and crack on with it. If you know how to protect yourself and have the equipment to do so, you'll be right.

Dr Ronan Murray: Epidemics (local spread) and pandemics (global spread) of infectious diseases have occurred on Earth as far back in time as we can look. The more senescent amongst us will recall the polio pandemic, and there's been several pandemics of influenza (1957/8, 2009) and cholera; with the latter infection, we're actually still in the middle of a pandemic which has ravaged Haiti, Yemen and other conflict-torn countries.

When AIDS broke out everyone started getting freaked out by stories of how long it lived outside the body (and myths either way went around). This one, concerningly, seems to hang around much longer on surfaces than seems usual. If so – what is it about this one that means it can stay active for so long outside a body?

Whilst polio, influenza and cholera are relatively "known knowns" in our understanding of how and why pandemics occur, the coronavirus pandemic is an "unknown unknown" in that the modelling, predictions and plans the medical and scientific community had for the "known knowns" do not apply to this virus, which at some point in late 2019, in a Wuhan wet market, mutated, crossed the species barrier (bats to humans) and started to transmit amongst us.

Mankind’s (humankind? apologies to Justin Trudeau) wanderlust and peripatetic nature has greatly increased the speed and extent of the spread of infectious diseases; we're all only a plane flight away from the evil humours and miasma that are commonplace in much of the world.

Have you experienced the law and lawyers (such as fear of getting sued or related issues) getting in the way of good results you or others have been trying to achieve?

Not at all; in fact the most alarmist and obstructive individuals who are currently standing in the way of our containment efforts are scared doctors, politicians of various stripes and the mainstream media, all of whom are cynically exploiting the situation to attract clicks and to Monday morning quarterback.

When crises hit, lawyers are rarely the front-line solution – whereas you and your staff are on the front line. With something as serious as this, how do you inspire and motivate staff to go into the battle-front and expose themselves to the known and unknown?

It's corny, but leadership by example is the most effective tool for keeping morale up at

Micro-organisms are very, very small and don't have brains, but they have rat-like cunning and survival skills conferred by billions of years of evolutionary pressure. Viruses are particularly clever in that, although they need the machinery of a living cell to reproduce, they can survive extremely harsh conditions on their own. Much like ourselves at university during prolonged 'droughts'.

In a hopefully not too silly question (at least for the editor of Brief) – we all seem to know it's called the coronavirus because of those crown-looking things on it – but other viruses have been coronavirus?

Coronaviruses are common in mammals and usually cause minor colds, if you get sick at all.

SARS (another coronavirus that also jumped the species barrier (civet cats to human, and also arose from a Chinese wet market in 2003) was nasty and killed hundreds, but it was contained by an exceptional public health response (and the fact that if you got it, you were generally too sick to traipse around infecting others).

An old aphorism is that the law is silent amid the clash of arms. As a medical person, to what extent do basic human rights need to be subverted for the common good in the face of a pandemic?

Such a vexed question. At what point, and under what circumstances, do you as an individual and as a society agree to forgo personal rights and liberties for the greater good? And who gets to make this decision?

Politicians? Celebrity doctors? Survey Monkey polls? Doctors are familiar with making life/ death decisions on an individual patient basis and I do this every day, but when the literal weight of the world is on your shoulder... tough calls must be made.

How does effectively triaging the elderly and infirm out of treatment fit with the Hippocratic oath?

Again, as doctors we routinely make hard clinical decisions regarding those who are old or whom have advanced, non-curable diseases that shorten their lifespan or make them intolerably miserable. The "Golden Rule" together with "primum non nocere" (first, do no harm) usually see you through the moral and ethical grey zones. Nature is indeed a harsh mistress, and survival of the fittest is her boniest finger, but we're arrogant if we think we can avoid her forever.

What is the best and worst you see from people when things like this happen?

Bravery, stoicism, doggedness and leadership – which sometimes have been labelled "toxic" personality traits by the more progressive amongst us. Though when emergencies like the present occur they tend to be the qualities that one looks to, rather than some other more woke characteristics. Kipling's phrase "If you can keep your head when all about you are losing theirs..." also comes to mind.

Everyone is excited about the prospect of a vaccine – but for beginners – how do you go about making a vaccine? What takes the time and what do researchers have to do, and work out? And if there is an impressively hasty vaccine made up – would you take it?

Need to do it right: test-tube to brave-volunteer to upscaling production to commercial availability can't be short-circuited. I'd be first in line if I haven’t already been infected by then.

Modern technology and means of communication and the dissemination of information have had a huge impact on almost every profession. Is it fair to say that this is an advantage in so far as allowing professionals in your area to share information all over the world? Though a disadvantage in other ways?

The internet is the best and worst of humanity.

Twitter, for example, is regularly a teeming cesspool of uselessness, but out there right now, doctors and scientists are using it for communicating, helping each other and working together to get us through this. Like Live Aid but with less hair.

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Society Sundowner On Thursday, 27 February, before the introduction of restrictions on social gatherings, over 100 practitioners braved some wild weather to gather for a sold-out Society Sundowner at RSM Perth.

Guests enjoyed refreshments, canapĂŠs and friendly conversation with sensational views of Elizabeth Quay at this relaxed, free social event for members.

Thank you to our sponsor, Legal Funding Australia.

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Thank you to our sponsor

YLC Rebrand Sundowner Over 70 young practitioners, graduates and law students joined the Law Society’s Young Lawyers Committee for the YLC Rebrand Sundowner on Thursday, 5 March, before restrictions on social gatherings came into force.

Thank you to our sponsor

It was a fantastic way to kick off the YLC’s 40th year, with attendees joining us at HQ Bar & Kitchen to enjoy a great evening with amazing sunset views of Elizabeth Quay.

Thank you to our sponsor, Leo Cussen Centre for Law for supporting the Sundowner.

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The Brexit Cases

By Robert Lindsay, Barrister, Sir Clifford Grant Chambers

The exercise of executive prerogative powers plays a central role from time to time in a nation’s life, yet often the exercise of those government powers goes unnoticed until a constitutional issue erupts fanning the flames of factionalism. This paper discusses those moments in a nation’s history where application of prerogative powers has influenced the evolution of political debate. This has occurred recently both with Britain’s 2016 referendum to part from the European Union and the two notable Supreme Court cases in which eleven judges sat which followed that referendum.

The Brexit Case (No 1) In January 1973, the United Kingdom became a member of European Economic Community (the EEC). In December 2015, the UK Parliament passed the European Union Referendum Act, and the ensuing referendum on 23 June 2016 produced a majority in favour of leaving the European Union (the EU). Thereafter, Ministers of the Crown announced that they would bring UK membership of the European Union to an end, which raised the question whether a formal notice of withdrawal could lawfully be done by Ministers, pursuant to prerogative powers, without prior legislation being passed in both

08 | BRIEF APRIL 2020

Houses of Parliament and assented to by the Queen.

The Government (the Ministers) argued that withdrawal from the EU could take place in the exercise of prerogative powers and did not require prior legislation to be passed for this to occur. A challenge was raised by two applicants, Gina Miller and Deir Dos Santos against the Secretary of State contending Parliamentary legislative approval was necessary.

The proceedings were heard before the Chief Justice; the Master of the Rolls; and Lord Justice of Appeal who ruled against the Secretary of State in a judgment1. The Ministers took the

matter on appeal to the Supreme Court, who sat the full bench of eleven Judges, and, who in January 2017 by a majority of eight Judges to three found that the Ministers’ appeal should be dismissed2.

The case reviewed existing prerogative powers and the relationship between domestic law and international legislation.

It also raised constitutional issues.

The EEC Treaties and UK Statute law The Ministers’ case was based on the existence of well-established prerogative powers of the Crown to enter into, and to withdraw from treaties. It was argued that Ministers are entitled to exercise prerogative powers in relation to withdrawal. In January 1972, Ministers signed a Treaty of Accession, which provided that the United Kingdom would become a member of the EEC and would accordingly be bound by the 1957 Treaty of Rome, which was the main treaty in relation to the EEC. A bill was then laid before Parliament which received the royal assent when it became the European Communities Act 1972 (the 1972 Act) and the following day ratified the Accession Treaty on behalf of the United Kingdom. Section 2(1) of the 1972 Act provided that: “All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly….”.

Section 2(2) of the 1972 Act authorised and designated Ministers to make regulations for the purpose of implementing EEC (now EU) community obligations.

In the past 40 years over 20 treaties relating to the European Union were signed on behalf of Member States and, in the case of the United Kingdom, by Ministers. One of those treaties being the Treaty of Lisbon inserted Article 50, which provided that “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. A Member State which decides to do so, notifies the European Council of its intention which will result in the European Council negotiating and concluding an agreement setting out the arrangements for withdrawal. The European Treaty shall cease to apply to

the State from the date of entry into force of the withdrawal agreement, or failing that, two years after notification unless the European Council unanimously agrees in conjunction with the Member State to extend that period. Once notice is given it cannot be withdrawn. Where notice is given the United Kingdom has embarked upon an irreversible course that will lead to EU law ceasing to have effect in the United Kingdom so that the European Union Treaties will cease to apply.

International Law and the 1972 Act The general rule is that power to make or unmake treaties is exercisable without legislative authority and that the exercise of that power is not reviewable by the Courts. This principle rests on the so-called dualist theory, which is that international law and domestic law operate in independent spheres. The prerogative power to make treaties depends on two related propositions. The first is that treaties between Sovereign States have effect in international law and are not governed by the domestic law of any State, i.e. treaties are governed by other laws than those which municipal Courts administer. The second proposition is that although they are binding on the United Kingdom in international law, treaties are not part of the UK law and give rise to no legal rights or obligations in domestic law3.

Although Ministers do in principle have an unfettered power to make treaties which do not change domestic law, it had become fairly standard practice by the late 19th Century for treaties to be laid before both Houses of Parliament at least 21 days before they are ratified to enable Parliamentary objections to be heard.

The 1972 Act authorised a dynamic process, by which, without further primary legislation and without any domestic legislation, EU Law became not only a source of UK Law, but actually takes precedence over all domestic sources of UK Law including statutes.

However, consistent with the principle of Parliamentary sovereignty, this “unprecedented state of affairs” only lasts so long as Parliament wishes, and the 1972 Act could be repealed like any other statute4.

EU Law may take effect as part of the law of the United Kingdom in three ways.

First, the EU Treaties themselves are directly applicable by virtue of section 2(1) and some of the provisions of those treaties create rights and duties which are directly applicable in the sense that they are enforceable in UK Courts.

Secondly, section 2(1) provides that the 09

EU treaties are to have direct effect in the United Kingdom without need for further domestic legislation. Thirdly, section 2(2) authorises the implementation of EU Law by delegated legislation. This applies mainly to EU directives which are required to be transposed into National Law5.

The majority considered that although the 1972 Act gives effect to EU Law, the 1972 Act is not itself the originating source of that law. It is only the “conduit pipe” by which EU law is introduced into UK domestic law. So long as the 1972 Act remains in force its effect is to constitute EU Law an independent and overriding source of domestic law6. The 1972 Act therefore has a constitutional character and, following the 1972 Act coming into force, the normal rule is that any domestic legislation must be consistent with the EU Law; that such EU Law has primacy as a matter of domestic law; and legislation inconsistent with the EU Law is ineffective. However, legislation which alters the “domestic constitutional status of EU institutions or of EU Law” is not constrained by the need to be consistent with the EU Law. This is because of the principle of Parliamentary Sovereignty which is fundamental to the United Kingdom’s constitutional arrangements, and EU Law can only enjoy a status in 10 | BRIEF APRIL 2020

domestic law which that principle allows.

It will therefore have that status only for as long as the 1972 Act continues to apply and that is a matter for Parliament7.

The Government’s argument was that section 2(1) of the 1972 Act is ambulatory in that the wording that EU Law rights remedies etc. “from time to time provided for by or under the treaties” were “to be given effect or used in the United Kingdom” accommodated the possibility of Ministers withdrawing from the treaties without Parliamentary authority8.

However, the majority considered there was a vital difference between changes in domestic law resulting from variations in the content of EU Law and changes in domestic law resulting from withdrawal by the United Kingdom from the European Union9. The latter involves unilateral action by the relevant constitutional bodies, which effects a fundamental change in the constitutional arrangements of the United Kingdom10. The majority concluded that they could not accept a major change to UK constitutional arrangements can be achieved by Ministers alone and it must be affected by Parliamentary legislation11.

The Dissenting View

The leading judgment for the three dissentients was given by Lord Reed. He said that there is no legal requirement for the Crown to seek Parliamentary authorisation for the exercise of the power except to the extent that Parliament has so provided by statute. Since there is no statute which requires the decision under Article 50(1) enabling withdrawal to be taken by Parliament, it follows that the decision can lawfully be taken by the Crown in the exercise of the prerogative.

There is therefore no legal requirement for an Act of Parliament to authorise the giving of notification of withdrawal under Article 50(2)12.

He accepted the importance in constitutional law of the principle of Parliamentary supremacy over domestic law, but that principle did not require that Parliament must enact an Act of Parliament before the United Kingdom can leave the European Union. That is because the effect which Parliament has given to EU Laws in domestic laws under the 1972 Act is inherently conditional on the application of the EU treaties to the UK and therefore the UK’s membership of the EU. The 1972 Act imposed no requirement and manifested no intention in respect of the UK’s membership of the EU. It did not therefore affect the Crown’s

exercise of prerogative powers in respect of UK membership. The effect of the EU law in the UK is entirely dependent on the 1972 Act13.

Referring to the words “from time to time” appearing in section 2(1) he said that the rights, powers, liabilities, obligations and restrictions arising under the EU treaties and the remedies and procedures provided for under those treaties alter from time to time. This demonstrates that Parliament has recognised that rights given effect under the 1972 Act may be added to, altered or revoked without the necessity of a further act of Parliament.

As to the majority of the Court drawing a distinction described as “a vital difference” between changes in domestic law resulting from variations in the content of EU law and changes resulting from withdrawal by the UK from the European Union, there is no basis in the language of the 1972 Act for drawing any such distinction14.

The differences between the majority and minority views turned largely upon differing statutory constructions of the relevant legislation. However, there was general consensus about the nature and history of prerogative powers which the judgment discussed.

The History of the Royal Prerogative Unlike Australia, the UK Constitution is unwritten and has been described as “the most flexible polity in existence”15.

Originally sovereignty was concentrated in the Crown which largely exercised all the powers of the State, but prerogative powers were progressively reduced as Parliamentary democracy and the rule of law developed. By the end of the 20th Century the great majority of what had previously been prerogative powers, at least in relation to domestic matters, had become vested in the three principal organs of the State, the legislature (the two Houses of Parliament), the executive (Ministers and the Government more generally) and the judiciary (the Judges).

Statutes such as the Bill of Rights 1689 and the Act of Settlements 1701 in England and Wales; and the Claim of Right Act 1689 in Scotland and various Acts of Union in 1706 and 1707 formally recognised the independence of the judiciary whose role is to uphold and further the rule of law16.

Sir Edward Coke CJ said that: “The King by his proclamation or in other ways cannot change any part of

the Common Law, or Statute Law, or the customs of the realm”17.

It had become established by the Bill of Rights of 1689 that the pretended power of suspending or dispensing with laws by the monarch was illegal18. The Crown’s administrative powers are now exercised by the executive being the Ministers who are answerable to the UK Parliament. However, the exercise of those powers must be compatible with legislation or the Common Law. The King in Council and any branch of the executive cannot prescribe or alter the law to be administered by Courts of Law and to do so is “out of harmony with the principles of our constitution”19. It is true that Ministers can make laws by issuing regulations, known as secondary or delegated legislation, but they can only do so if authorised by statute.

The Scope of Prerogative Powers Today, the royal prerogative encompasses a residue of powers which remain vested in the Crown, exercisable

by Ministers, provided that the exercise is consistent with Parliamentary legislation.

It is “only available for a case not covered by statute”. Professor Wade described

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it as: “The residual prerogative is now confined to such matters as summoning and dissolving Parliament, declaring war and peace, regulating the armed forces in some respects, governing certain colonial territories, making treaties (though as such they cannot effect the rights of subjects) and conferring honours.

The one drastic internal power of an administrative kind is the power to intern enemy aliens in time of war”20.

Since the 17th Century, the prerogative has not empowered the Crown to change English Common or Statute Law. A prerogative power, however well established, may be curtailed or abrogated by statute. There are important areas of governmental activities even today essential to the effect of operation of the State, which are not covered by statute such as the conduct of diplomacy in war and these are viewed as best reserved to Ministers21.

Although prerogative powers cannot change the domestic law they may have domestic legal consequences. First, where it is inherent in the prerogative power that its exercise will affect the legal rights or duties of others the Crown has a prerogative power to decide on the terms of service of its servants and it is inherent in that power that the Crown can alter those terms so as to remove rights, albeit such a power is susceptible to judicial review. The Crown also has a prerogative power to destroy property in war time in the interest of national defence, although at Common Law compensation is payable. The exercise of such powers may affect individual rights, but it does not change the law because the law has always authorised the exercise of that power22.

The Constitutional Principles: Accountability to Parliament for Prerogative Exercise The most significant area is the conduct of foreign affairs, but as Lord Oliver said in JH Rayner (Mincing Lane) Ltd v Department of Trade & Industry23: “As a matter of the Constitutional Law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty

12 | BRIEF APRIL 2020

is not part of English law unless and until it has been incorporated into the law by legislation.”

Since treaty making is outside the purview of the Courts because it is made in the conduct of foreign affairs, which is the prerogative of the Crown, this may be regarded as a necessary corollary of Parliamentary sovereignty because: “If treaties have no effect within domestic law, Parliament’s legislative supremacy within its own polity is secure. If the executive must always seek the sanction of Parliament in the event that a proposed action on the international plane will require domestic implementation, Parliamentary sovereignty is reinforced at the very point at which the legislative power is engaged”24.

A further constitutional principle was pointed to by Lord Carnwath who also dissented with Lord Reed. He did not see the choice as simply one between Parliamentary sovereignty, exercised through legislation, and the untrammelled exercise of the prerogative by the executive. No less fundamental to the constitution is the principle of Parliamentary accountability. The executive is accountable to Parliament for its exercise of the prerogative, including its actions in international law.

That account is made through ordinary Parliamentary procedures. Subject to specific statutory restrictions they were matters for Parliament alone. The Court may not inquire into the methods by which Parliament exercises control over the Executive, nor their adequacy25.

Sedley LJ: An Ethical Preference In commenting upon the Brexit Judges’ respective positions Sir Stephen Sedley, a retired Lord Justice of Appeal, preferred the view of the majority on broad historical grounds notwithstanding what he regarded as the “astute reasoning” of the dissenting Lord Reed. Sedley LJ said for over 400 years, British Monarchs and their Ministers have contested the claims of Parliament to have the last word on matters of State. Judges have arbitrated between them, laying down as part of the common law what Ministers can lawfully do in the exercise of the Royal prerogative, such as declaring war, making peace, signing treaties, granting honours, governing colonies, and what requires the authority of either the common law or of Parliament. In 1685, James II had packed a 12 jury court, who supported him in declaring in exercise of prerogative powers that he could dispense with the Test Acts which barred

Catholics and dissenters from public office. He was later forced to abdicate and, in 1688 Parliament reconstituted itself and passed the Bill of Rights, which is still the foundational statute of the British State, which Bill provided in its second article that “the pretended power of dispensing with laws or the execution of laws by regal authority as it hath been assumed and exercised of late, is illegal”.

Sir Stephen Sedley considered that all this boiled down to a simple proposition: to use the Royal treaty making prerogative to stultify primary domestic legislation is to do exactly what the Bill of Rights forbids – to dispense with laws by regal authority.

He saw the critical reasoning to be that of the majority when they said that there was a fundamental difference in withdrawal under Article 50 from abrogation of particular rights, duties or rules derived from EU law. It amounted to a significant constitutional change. The introduction of EU law was brought into existence by Parliament through primary legislation and so too withdrawal under Article 50 should be done through legislation for it was a constitutional alteration of arrangements.26

The Sequel to the First Brexit Decision: and the Withdrawal Agreement Parliament responded to the first decision by passing the European Union (Notification of Withdrawal) Act 2017 authorising the Prime Minister to give notice of withdrawal from the EU. Parliament then proceeded with some of the legislative steps needed to prepare the United Kingdom law for leaving the EU. The European Union (Withdrawal) Act 2018 defined the ‘exit day’ but this allowed for an extension by statutory instrument if needed. It repealed the European Communities Act 1972 which Act had provided for entry into the EU (at that time the EEC).

Crucially, section 13 of the 2018 Act required parliamentary approval of any withdrawal agreement reached by the government. The machinery for leaving the European Union in Article 50 of the Treaty on European Union requires that the EU must negotiate and conclude an agreement with the member state “setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”. The European Union Treaty will cease to apply to that state when the withdrawal agreement comes into force or failing that two years after the notification unless the European Council unanimously agrees to extend that period.

A withdrawal agreement with the

European Union by the Ministers was concluded on the 25th of November 2018 but this agreement was rejected by the House of Commons three times.

Following the voting down of the withdrawal agreement there was a change of Prime Minister with Mr Boris Johnson being chosen by the Conservative Party.

He had been the leading light contending that Britain should leave the EU. He contended that the European Council of the European Union will only agree to changes in the withdrawal agreement if they think that there is a genuine risk that the United Kingdom will leave without any such agreement. However, a majority of the House of Commons would not support withdrawal from the EU without an agreement and so, the European Union (Withdrawal) Act 2019 was passed, requiring the Prime Minister to seek an extension of three months from the EU if no withdrawal agreement had been approved by Parliament.

The Proroguing of Parliament On the 28th of August 2019 members of the Privy Council attended a meeting of the Council held by the Queen at Balmoral Castle and an order in council was made that Parliament be prorogued on a day no later than Monday the 14th of September 2019 until 14th of October 2019 when, Parliament would reconvene for the Queens speech which was to set out the governments legislative program.

In approving the prorogation Her Majesty was acting on advice of the Prime Minister who saw no merit in extending the deliberations of a Parliament now largely hostile to the United Kingdom leaving the EU without a withdrawal agreement to their liking, and in which some members were now calling for a second referendum to review the 2016 result.

As it happened, the Prime Minister and his Ministers did get a modified withdrawal agreement with the EU but the government no longer commanded enough parliamentary support to get it approved. Accordingly, in an endeavour to secure an outright majority to pass his modified withdrawal agreement, the Prime Minister called an election for the 12th of December 2019, the result of which has now enabled his conservative government to leave the EU on the 31st January 2020 with the modified withdrawal agreement but that the framework for the future relationship with the EU is intended by the UK government to be finalised within the next year.

The Second Brexit Case27 As soon as the prorogation was announced Mrs Gina Miller, who mounted the first Brexit challenge, launched proceedings in the High Court in England and Wales seeking a declaration that the Prime Minister’s advice to Her Majesty to prorogue was unlawful. Those

proceedings were heard by a divisional court, comprising the Chief Justice, the Master of the Rolls and the President of the Queen’s Bench Division and these judges dismissed the claim on the ground that the issue was not justiciable.

Similar proceedings were mounted in the Scottish Court of Sessions where initially the government succeeded but the Inner House, on appeal, held that the advice given to Her Majesty was justiciable, that it was motivated by the improper purpose of stymying parliamentary scrutiny of the Executive, and that the advice and the prorogation which followed it were unlawful and thus null and of no effect.

There was then an appeal of both decisions to the Supreme Court which again sat all eleven members.

The Principles in Question The Supreme Court said firstly, that the power to order prorogation of Parliament is a prerogative power being a power recognised by the common law and exercised by the sovereign in person acting on advice in accordance with modern constitutional practice.28 Secondly, whilst the Court cannot decide political questions the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it.29 For this they gave the example of the Case of Proclamations30 that an attempt to alter the law of the land

13

by the use of the Crown’s prerogative was unlawful, the Court there holding that ‘the king hath no prerogative, but that which the law of the land allows him’ indicating that the limits of prerogative powers were set by law and were determined by the courts. Another example was Entick v Carrington31 where the Court found that the Secretary of State could not order searches of private property without authority conferred by an act of parliament or the common law.32 Thirdly, the Prime Minister’s accountability to Parliament does not in itself justify the conclusion that the courts have no legitimate role to play. This is so because the effect of prorogation is to prevent the operation of ministerial accountability to Parliament during the period when Parliament stands prorogued. Further, a court has a duty to give effect to the law irrespective of the Minister’s political accountability to Parliament. Ministerial responsibility is no substitute for judicial review.33 Fourthly, if the issue before the court is justiciable deciding it will not offend against the separation of powers by ensuring the prorogation power is not used unlawfully. Indeed the court will be giving effect to the separation of powers by ensuring the prorogation power is not used unlawfully.34

Whether these Issues are Justiciable The Court saw the first issue as whether a prerogative power exists and its extent.

Secondly, if accepted that a prerogative power existed and it has been exercised within its limits, the question then was whether a purported exercise of power was challengeable in the courts on the basis of one or more of the recognised grounds of judicial review. In the Council of Civil Service Unions v Minister for the Civil Service35 the dissolution of parliament was seen by Lord Roskill as one of a number of powers whose exercise was in his view non-justiciable.

It was important to appreciate that this argument advanced by the Government that prorogation is analogous to dissolution, and is therefore an excluded category, only arises if the issue in the proceedings is properly characterised as one concerning the lawfulness of the exercise of a prerogative power within its lawful limits rather than as one concerning the lawful limits of the power and whether they have been exceeded. No question of justiciability can arise in relation to whether the law recognises the existence of a prerogative power or in relation to its legal limits. These are by definition questions of law for the courts.36

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Deciding the Limits of Prerogative Power Whilst it is relatively straightforward to determine the limits of a statutory power, determining the limits of a prerogative power which is not constituted in any document is less straightforward.

Nevertheless every prerogative power has its limits and it is the function of the court to determine when necessary where they lie. The common law recognises prerogative power and that power has to be compatible with common law principle which may illuminate where its boundaries lie.37 Constitutional principles may be developed by the common law.

For example, that justice must be administered in public, and the principle of the separation of powers between the Executive, Parliament and the Courts. The principle may extend to the application of governmental powers including prerogative powers. For example, the Executive cannot exercise prerogative powers so as to deprive people of their property without the payment of compensation.38

Sovereignty of Parliament is a foundational principle The Court said that the sovereignty of Parliament would be undermined as the foundational principle of our constitution if the Executive could through the use of the prerogative prevent Parliament from exercising its legislative authority.

That would be the position if there was no legal limit on the power to prorogue Parliament.39 The longer that Parliament stands prorogued the greater the risk that responsible government may be replaced by unaccountable government.40 A prerogative power is therefore limited by statute and the common law and will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of parliament to carry out its constitutional functions as the legislature and as the body responsible for the supervision of the Executive.41

The Prime Minister’s Explanation for Prorogation The Government argued that there were no circumstances whatsoever in which the Court could review a decision to prorogue Parliament.42 However, it is a concomitant of Parliamentary sovereignty that the length of prorogation is not unlimited.43 The question then is whether the Prime Minister’s explanation for advising the Parliament should be

prorogued was a reasonable justification.

It was recognised that the courts can rule on the extent of prerogative powers and the court is not concerned with the mode of exercise of the prerogative powers within its lawful limits. But, the advice given by Borris Johnson to the Queen to prorogue Parliament for five out of the possible eight weeks was to frustrate or prevent the constitutional role of Parliament in holding the Government to account.

The Government argued that to declare the prorogation null and of no effect is contrary to Article 9 of the Bill of Rights of 1688 which states that “the freedom of speech in debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. It is a principal role of the courts to interpret Acts of Parliament.

In R v Chytor44 a prosecution of several members of Parliament for allegedly making false expenses claims was resisted on the ground that these claims were ‘proceedings in Parliament’ which ought not to be ‘impeached or questioned’ in any court. It was held unanimously by nine justices that MP’s expenses were not ‘proceedings in Parliament’. The case established that it is for the Court and not for Parliament to determine the scope of parliamentary privilege whether under Article 9 of the Bill of Rights or matters within the exclusive cognisance of Parliament. The principle in Article 9 is directed to freedom of speech and debate. The prorogation itself takes place in the presence of members of both houses but it cannot be sensibly described as a ‘proceeding in Parliament’. It is not a decision of either house but rather it is something which is imposed upon members of Parliament from outside45. The court is therefore not precluded by Article 9 or by any wider parliamentary privilege from considering the validity of the prorogation itself.

The Prime Minister did not submit any evidence to the Court about what passed between him and the Queen when advising her to prorogue. However, the Court had three documents leading up to the advice, one of which contained the Prime Minister’s hand-written comments on a memorandum which said ‘the whole September session is a rigmorale introduced (words redacted) to show the public that MP’s were earning their crust, so I don’t see anything especially shocking about this prorogation.’46 The words redacted above were ‘by girly swot Cameron’,47 a reference to the former Prime Minister David Cameron who had been at Eton College with Johnson.

The minutes of a Cabinet meeting held by conference call on the 27th of August, after the advice had been given, asserted that prorogation had not been driven by Brexit considerations. It had been portrayed as a means to prevent MP’s intervening to prevent the United Kingdom’s departure from the EU due on the 31st of October 2019 but that was not so. A Queen’s speech was to be delivered on the 14th of October and the Prime Minister sent a letter to MP’s setting out ‘…an ambitious and domestic legislative agenda for the renewal of our country after Brexit.’48

The Legal Test of Unlawfulness However, the longer Parliament stands prorogued the greater the risk that responsible Government may be replaced by unaccountable Government.49 The relevant limit in this case upon the power to prorogue can be expressed thus: that the decision to prorogue Parliament will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its Constitutional functions as a legislature and as the body responsible for the supervision of the Executive.50

This was not a normal prorogation in the run up to a Queen’s speech. It prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and the exit date from the EU set for the 31st of October 2019.51 Sometimes this interruption may not matter but where a fundamental change was due to take place in the UK constitution on the 31st of October 2019 it was important52

The two decisions of the Supreme Court have had political consequences well beyond the arcane points of constitutional law which the Court decided. Had the dissenting view of the three Judges succeeded in the first Brexit case Theresa May’s government would have survived and been able to implement the withdrawal agreement with the EU without recourse to parliament for approval of that agreement and the United Kingdom would have left the EU by now.

There was no reason given for closing down Parliament for 5 weeks on the pretext that this time was needed for preparations of the Queen’s speech setting out the government’s program.

The unchallenged evidence of Sir John Major, a former Prime Minister, that 4-6 days is sufficient for that purpose was accepted.53 It was impossible to conclude that there was any reason to advice a prorogation of five weeks.54

It is because in the years following, the ousting of the Stuarts the crown ceased to govern through the Ministers, and Ministers began to govern through the crown that an issue like the prorogation crisis addressed in the second Brexit case has been able to arise.55

It was found therefore that the advice was unlawful because it was outside the powers of the Prime Minister to give it and therefore it was null and of no effect.

The Political Consequences

The Bill of Rights 1688 – 89 created today’s constitutional monarchy leaving in existence a range of prerogative powers which has been significantly reduced in their scope by the recent decisions. The first Brexit case affirmed the established proposition that prerogative powers do not allow for extending or altering laws which confer rights upon individuals where those are enjoyed under domestic law. Although the executive may make

15

treaties under international law in exercise of the prerogative those powers have no effect upon the domestic law unless parliament legislates to adopt the treaty terms as part of the domestic law.

The dissenting view saw the withdrawal of EU membership under Article 50 of the Treaty of Lisbon as the exercise of a prerogative power by Ministers. It took the literal view that the European Communities Act 1972, taking the United Kingdom into the EU, was simply a conduit for rights and obligations derived from a treaty, which was an exercise of the royal prerogative, and therefore could be abrogated like any other treaty terms by Ministers. There was no legal requirement that an act of parliament authorise the granting of notification of withdrawal under Article 50.

Conversely, the majority view in the first Brexit case was that parliamentary sovereignty, allied to the fact that this was a substantial alteration in constitutional arrangements, meant that legislative approval for withdrawal was required.

Emboldened by the majority decision parliament introduced Section 13 of the European Union (withdrawal) Act 2019 requiring parliamentary approval of any withdrawal agreement reached by the government. After the withdrawal agreement reached by Theresa May with the EU had been voted down three times parliament legislated to require the Prime Minister to seek an extension of time from the EU since no withdrawal agreement had been approved by parliament. Boris Johnson’s subsequent obtaining of a

16 | BRIEF APRIL 2020

modified withdrawal agreement with EU then met the difficulty that he could not command enough parliamentary support to get the withdrawal agreement passed and so the need for an election to secure a majority for passage of the modified agreement.

The two Brexit cases reaffirmed that Ministers may only govern as long as they have the confidence of parliament; that Ministers have an accountability to parliament for their conduct of both foreign and domestic policy; that an executive becomes rudderless where it does not have parliamentary support to pass legislation; and that the courts may hold an executive government to account for an unlawful exercise of its prerogative powers.

The Excluded Prerogative Powers It must be now doubted whether even the limited prerogative powers set out

by Professor Wade and cited in the first Brexit case or those described by Lord Roskill in the Council of Civil Service Union case alluded to in the second Brexit case, are non-justiciable. Lord Roskill saw the prerogative powers free from challenge as the making of treaties; the defence of the realm; the prerogative of mercy; the grant of honours; the appointment of ministers; and the dissolution of government.56

The Separation of Powers The prerogative powers excluded from challenge have been diminished. The

sovereignty of parliament reaffirmed and the judicial role to patrol both the boundaries of political lawfulness and to scrutinise by judicial review political actions has been enlarged. The second Brexit case recognised that Constitutional principles may be developed by the common law and that this would include recognising the separation of powers between Executive, Parliament and the courts.

Are these Modern Developments?

In his BBC Reith lectures Lord Sumption, who formed one of the majority in the first Brexit case but had retired before the second case, said relations between government and the citizen are governed by “an elaborate system of administrative law largely developed by Judges since the 1960s.” Sir Stephen Sedley saw this comment as a “historical solecism” for he said there is little in the principles in modern public law (a term he preferred to that of administrative law) which was not already there by the nineteenth century, but what has changed is the polity to which these principles applied as judicial review can now reach acts done under the royal prerogative, not only when it departs from what is lawful, but also review some of the excluded prerogative categories referred to earlier by Lord Roskill.57

Political or Legal Constitution?

Sir Stephen Sedley drew attention to Lord Sumption’s view, expressed in the BBC

Reith Lectures, that the United Kingdom Constitution is “essentially a political and not a legal constitution.”58 This was consistent with Lord Sumption’s view that the judiciary does no more than patrol the boundaries of political legality whereas two party politics should make for moderation, toleration, and compromise.

It is shown by recent events in parliament where the members could not agree upon a course for withdrawal from the EU and recent decisions of the Supreme Court that this “idealised dualism”59 of law and politics has now fallen apart.

The Constitution and Ouster Clauses Another Supreme Court decision in 2019 illustrates the increased reliance which the courts place upon the principle of legality to ensure that parliament does not preclude the higher courts from determining what the law is. In R (on the application of Privacy International) (Appellant) versus the Investigatory Powers Tribunal and others (Respondents)60 Lord Carnworth, speaking for the majority said an ouster clause which sought to oust the supervising role of the higher courts to correct errors of law by tribunals would conflict with the rule of law. He saw this principle as fundamental to the constitution as that of parliamentary sovereignty. His Lordship held that consistent with the rule of law, binding effect cannot be given to a clause which purports to exclude the jurisdiction of the higher court to review a decision of an inferior court or tribunal whether it be for excess or abuse of jurisdiction or an error of law.61

Constitutional Contrast with Australia In arriving at this result his Lordship

acknowledged that in Australia the High Court in Kirk v Industrial Court of NSW62 had already arrived at a similar result by use of a “broadened concept of jurisdiction.” That case also determined that state legislators could not legislate to exclude review for jurisdictional error.

Legislation to oust jurisdiction of the higher courts in Australia arose most visibly under the Migration Act 1968 (Cth) where a “privative clause” in legislation purporting to oust jurisdiction to review tribunal decisions was struck down on the basis of jurisdictional error.63 Unlike the United Kingdom, the High Court has thus far preserved the difficult distinction between jurisdictional and non-jurisdictional error. This is deemed necessary because the majority in the High Court and Privy Council in the Boilermakers case64 decided that the exercise of judicial power did not permit interference with executive decision making unless there had been jurisdictional error or the legislation itself permitted some form of merits review. It remains to be seen what effect the recent public law developments in the two Brexit cases, together with the anticipated uncoupling of the United Kingdom from European jurisprudence, will have on constitutional developments in the Australian High Court.

Endnotes 1 2 3

4 5 6 7 8 9 10 11 12 13 14 15

(R) (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (3 November 2016).

(R) on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5.

(R) (on the application of Miller & another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5 at paragraph [55].

Ibid at paragraph [60].

Ibid at paragraph [63].

Ibid at paragraph [65].

Ibid at paragraph [67].

Ibid at paragraph [75].

Ibid at paragraph [78].

Ibid at paragraph [78].

Ibid at paragraph [82].

Ibid at paragraph [161].

Ibid at paragraph [177].

Ibid at paragraph[186]-[187].

A.V. Dicey: “Introduction to the Study of the Law of the

16

17 18

19 20

21 22 23 24

25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64

Constitution”(8th Edition) (1915), p.87.

(R)(on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5 at paragraphs [41] - [42].

The Case of Proclamations (1610) 12 Co. Rep. 74.

(R) (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5 at paragraph [44].

As per Lord Parker of Waddington in The Zamora [1916] 2 AC 77 at paragraph [90].

Professor HWR Wade: “Administrative Law” (1st Edition) (1961), p. 13 and at paragraph [47] of (R) (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5.

Ibid at paragraphs [48]-[50].

Ibid at paragraph [52].

[1990] 2 AC 418 at page 500.

Professor C McLachlan: “Foreign Relations Law” (2014), paragraph 5.20 and at paragraph [57] in (R) (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5.

Ibid at paragraph [249].

S. Sedley: London Review of Books “Short Cuts” Vol. 39 No.5 2 March 2017 pp 26 – 27.

R (On the Application of Miller) v The Prime Minister & Others 2019 UKSC 41.

Paragraph 30.

Paragraph 31.

(1611) 12 Co Rep 74.

(1765) 19 State Trials 1029.

Paragraph 32.

Paragraph 32.

Paragraph 34.

[1985] AC 374 Lord Roskill mentioned at page 418.

Paragraph 36.

Paragraph 38.

Paragraph 40.

Paragraph 42.

Paragraph 48.

Paragraph 50.

Paragraph 43.

Paragraph 44.

(2010) UKSC 52.

Paragraph 68.

Paragraph 18.

Stephen Sedley: ‘In Court; London Review of Books’ 10th October 2019 page 16.

Paragraph 21.

Paragraph 48.

Paragraph 50.

Paragraph 56.

Paragraph 57.

Paragraph 59.

Paragraph 61.

The Law and Custom of the Constitution: Sir William Anson: LRB 10th October 2019 page 16.

1985 AC 374 Lord Roskill at page 418.

R (on the application of Privacy International (Appellant) v Investigatory Powers Tribunal and Others (Respondents) 2019 UKSC 22.

LRB 12 September 2019.

LRB 12 September 2019.

2019 UKSC 22.

Privacy International paragraph 144.

2010 HCA 1.

Plaintiff s157/2002 v Commonwealth of Australia 2003 HCA 2; 2011 CLR 476.

R v Kirby ex parte Boilermakers Society of Australia 1956 94 CLR 254.

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17

The Execution of Augustin De Kitchilan

By Dr Auke ‘JJ’ Steensma1

Carrying comfort and calm To sufferers, distant and near, The Mistress of Peppermint Farm Flung aside hesitant fear.

Soothing with reprimand kind, Jealousy, anger and hate; To all but sweet excellence blind — Bushwoman, Sister and Mate.

Leah Fouracre. Vale!

‘Dryblower’ Murphy2 At 8 o’clock on Wednesday, 23 October 1907, Augustin John Berchmen De Kitchilan was taken to the execution chamber at Fremantle Gaol, to pay the ultimate penalty for the murder of Miss Leah Fouracre. The shooting had taken place on or about Friday, 16 August 1907 at the Fouracre property, named ‘Peppermint Grove Cottage’,3 near Waroona. De Kitchilan, a 21-year-old Cingalese man,4 would become the 131st person officially executed in Western Australia.

Three hours earlier De Kitchilan was awoken, given his last meal, a shower, and provided with clean clothes. De Kitchilan was taken from his cell from which he had occupied since Saturday 5 October 1907, that being the day that he was sentenced to death by Mr Justice McMillan, and taken to the ‘condemned cell’ located near the gallows.

Throughout, De Kitchilan was attended by the Reverend Father Cox OMI, and gave ministrations, which De Kitchilan received with gratitude.5 A few minutes before 8.00am, the hangman came to the ‘condemned cell’ and De Kitchilan’s arms were then pinioned to a belt that went around his waist. He was led to the gallows. The West Australian newspaper reported that De Kitchilan: “appeared to be slightly nervous, (sic) but displayed no signs of fear”.6 De Kitchilan was led to the trap of the gallows. As was the custom of the time, a white hood was placed over his head, 18 | BRIEF APRIL 2020

and the hangman’s rope was positioned on the left side of his neck with the knot placed under his left ear. At the same time, the hangman’s assistant pinioned the ankles of De Kitchilan.

De Kitchilan then stated; “Let me have my last say, let me have my last say, just a little, please.”7 The hangman loosened the noose around his neck, but his face remained hidden behind the white hood. The West Australian newspaper reported that De Kitchilan; “gave utterance to his last prayer”.8 He “spoke rapidly and apparently with great fervour”9 and spoke for no longer than a minute. De Kitchilan then stated: “Lord God, my Father, hear my prayer. Lord, Lord, God of Heaven, have mercy upon my poor unfortunate soul. Oh Lord, pardon me; give me pardon. Lord have mercy, mercy on my soul. Have mercy on my soul, have mercy on my soul, Jesus, Lord God, and receive my poor and unfortunate soul.”10 The noose was then tightened around his neck, the hangman drew the bolt, and the lever was pulled.11 De Kitchilan dropped the ‘prescribed distance’ and died instantaneously. He paid the ultimate price for the murder of Leah Fouracre.

Fouracre,13 the father of Leah Fouracre.

The house was of a square design and was large and had eight rooms, and had been used as a ‘wayside inn’.14 As the years went on, John and most of the family left the property to live in Drakesbrook; however, Leah chose to stay and manage the property. Purdue notes that: “She was able to do most things about the place, selling butter from her cows, raising poultry and selling eggs to make a living”.15 Leah it was said was “a nice-looking woman, a good horsewoman and a splendid shot with a rifle”.16 De Kitchilan had previously been in trouble with the law before the events at ‘Peppermint Grove Cottage’. He served a prison term of three months for attacking a man in Bunbury with an axe. Previously, De Kitchilan had been accused of shooting at a person who had “called him an opprobrious name”.18 Later, De Kitchilan goes under the name of ‘Berchman’.19 ‘Berchman’ arrived at ‘Peppermint Grove Cottage’ and informed Leah that he was a member of the police force in Western Australia and was engaged by the police force to find ‘certain men’.20 De Kitchilan said that it included a man named ‘Carroll’.21 Leah permitted him to stay on the property.

Witnesses corroborated that they had seen him at the property.

The body of De Kitchilan was left to hang for one hour and then taken to the morgue at Fremantle Gaol. A formal inquest was then conducted to determine whether the cause of death was attributed to the breaking of the spinal cord, as should and was the case, or from a heart attack or strangulation. The inquest found that his death had been caused by the breaking of the spinal cord and was instantaneous. Later that day the body of De Kitchilan was buried at the Fremantle Cemetery in an area set aside for ‘the bodies of felons’.12

About a week later, Berchman (De Kitchilan) murdered Leah Fouracre. As Leah came out to get some cow feed, De Kitchilan lay in wait in ‘a clump of wattle’,22 and shot her at a distance of fewer than 20 feet23 with her MartinHenry rifle.24 De Kitchilan took a body and placed it inside, robbed the house, and then set the house on fire. Leah Fouracre was 44 years of age.

‘Peppermint Grove Cottage’ was a homestead built in 1854 by John

Later that day, De Kitchilan went to the house of the uncle of Mary Venables (née

De Kitchilan then stole two of Leah’s horses, and a Winchester rifle, and decided to head in a southerly direction, to escape the law.

Piggott), Uncle Joe Colton Jnr. Uncle Joe would later comment that he had said to De Kitchilan that the horse he was riding belonged to Leah and that he was most surprised that she had allowed him to ride it as she never let anyone else ride it.25 Uncle Joe would later state that he “never slept that night – neither did De Kitchilan who was very restless”.26

Council. The response stated: “The law should take its course on October 30 (sic)”.34 De Kitchilan would write several letters, that The West Australian newspaper termed ‘Rambling Letters’,35 protesting his innocence, and accusing another man of this heinous crime.36 in one of the letters he stated:

During the night, it rained and put out the fire.27 The only area badly damaged was where the body of Leah Fouracre lay.

“I would like you, sir, to keep your eyes on that fellow (mentioning the name of a certain man), whom I told you Miss Fouracre disliked, and the first array of evidence you get to bring him to justice, and that not just now, but after I am hung and no more in this world. Bring him to justice and have him punished, the cowardly cur, and let the public know that I died an innocent man.”37

On August 18, Mr George Shenton passed by the farm and noticed that there had been fire-damaged. He and Michael Lyons, Leah’s brother-in-law,28 went to investigate and found the burnt remains of Leah. At first, it was believed that Leah had died in the fire, trying to salvage what she could.

Closer inspection found a more sinister explanation. The autopsy conducted a little later revealed “that Leah’s fatal wound, had been inflicted by an exploding bullet that tore through her lungs and heart before exiting the front of her body as she was in the process of turning”.29 During the investigation, the authorities concluded that two of her horses, a Winchester rifle and several other items were missing. De Kitchilan then pawned some of Leah’s pieces, which were later identified and traced back to him. De Kitchilan was arrested at Bunbury three days after murdering Leah. The horses and the Winchester rifle were found with him. De Kitchilan gave the “most unlikely tales to how he came into their possession”.30 Before Resident Magistrate, Doctor Lovegrove, De Kitchilan was charged with the wilful murder of Leah Fouracre at Peppermint Grove on or about 16 August 1907.31 De Kitchilan was also charged with impersonating a member police force, however, the charge was later withdrawn.32 The trial was to be heard at the Fremantle Court.

On Saturday 5 October 1907, De Kitchilan was sentenced to death by Mr Justice McMillan at Fremantle. Mary Venables' father, James Piggott, and her Uncle Joe Colton, both gave evidence at the hearing. Mary would state that her Uncle Joe was “I believe, a rather wonderful witness only saying what he saw and did”.33 On Wednesday 17 October 1907, counsel for De Kitchilan, Mr CR Penny, personally petitioned the Governor of Western Australia, Admiral Sir Frederick Bedford KCB, to have the sentence commuted to a life sentence, and also asked that the petition be forwarded to the Executive

While in the ‘condemned cell’, two of De Kitchilan’s sisters visited him before he was executed. The night before his execution, De Kitchilan asked if he were able to access “a lock of hair from his sweetheart, which, he said, was included in his belongings”.38 The lock was given to De Kitchilan. He carried the lock and cried as he kissed it.39 At 8 o’clock on Wednesday, 23 October 1907, Augustin John Berchmen De Kitchilan kept his appointment with the hangman and his assistant and paid the ultimate penalty for the wilful murder of Leah Fouracre.

The lock of the hair of his sweetheart was buried with him.

Endnotes 1

2

3 4

5

6 7 8 9 10

11

Dr Auke (JJ) Steensma, BBus (Log Mgt), JD, P.Cert Arb, G.Cert Constr Law, G.Dip LP, MPM, MMR, PhD PRI Arb 3, Adj (WA & NT), Med, NMAS, MAICD. Dr Steensma is a Barrister and Solicitor, specialising in Construction Law and ADR at Steensma Lawyers in Port Adelaide. He is an Arbitrator (Gde 3), Adjudicator (WA & NT), Mediator (NMAS), and Expert Determination Practitioner. He has been a member of the LS-SA ADR committee since 2017. He was conferred as a PhD in Business Law in Feb 2019.

‘Dryblower’ Murphy, Leah Fouracre. Vale!, (published in Dryblower’s Verses 1894-1926, (1926)), <http://www. australianculture.org/leah-fouracre-vale-dryblowermurphy-1926/>. also known as; Peppermint Grove farm, or just ‘Fouracres’.

Cingalese or Singhalese, are the largest ethnic group from the island of Sri Lanka (previously known as Ceylon).

The West Australian, ‘The Waroona Murder, Execution of De Kitchelan, A prayer on the scaffold, rambling letters’, The West Australian, (Thursday, October 24, 1907), 7.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid. The West Australian stated that “The Terms of the last prayer uttered by De Kitchilan were taken by some of the officials who were present to be tantamount to a confession.”

The lever at Fremantle Gaol can be pushed or pulled.

Thank you, Eleanor Lambert, the Assistant Curator at Fremantle Gaol for her assistance in determining the question of whether the lever was pushed or pulled.

The catchment speaking from Albert Pierrepoint, in his autobiography Executioner Pierrepoint stated the routine that was conducted during his training: “draw

12 13

14

15 16

17

18

19

20 21

22

23

24 25

26 27 28

29 30 31

32 33

34

35

36 37

38

39

on the white cap, adjusts the noose, whip out the safety pin, push the lever, drop., Noose, pin, push, drop. Push the lever, never pull it. The lever is like a railway signalman's points lever. When the traps are closed the lever is sloping towards the drop. You've got to be quick, not take time to get to the other side and pull. There is a cotter pin on the lever near the floor, a safety catch, never to be drawn while there are more men than the prisoner on the drop.”

See Albert Pierrepoint, Executioner Pierrepoint, (Eric Dobby Publishing Ltd, 2005), 94-5.

Ibid.

John Fouracre, born 1834 (England) arrived in WA 26 March 1852, died 22 October 1907 (aged 73, just after the death of his daughter Leah Fouracre, but just before the hanging of De Kitchilan).

Shire of Waroona, ‘inHerit - Our Heritage Places Fouracre Cottage (Ruins)’, <http://inherit.stateheritage. wa.gov.au/Public/Inventory/PrintSingleRecord/ ae0fa7ec-728f-4eca-85fa-f24216f73755>.

Ibid.

Harvey History Online, Reminiscences of Mrs Mary Venables (nee Piggott), Harvey District, <https://www. harveyhistoryonline.com/?p=3328#_ftnref19>. Mary Venables née Piggott (1883-1970). The This article was compiled by Hector Evans, from interviews with Mary Venables in 1956-57.

Opprobrious: Expressing contemptuous reproach; scornful or abusive. <https://www.thefreedictionary. com/opprobrious>.

‘The Waroona Murder, Execution of De Kitchelan, A prayer on the scaffold, rambling letters’, The West Australian, (Thursday, October 24, 1907), 8 <https://trove.nla.gov.au/newspaper/ article/25715967/2561304>.

Catherine Noske, ‘An Inside Look at Issue 62.1: John Weller’s ‘Wellington Location 205’, (July 2017), Westerly Magazine <https://westerlymag.com.au/ inside-look-issue-62-1-john-wellers-wellingtonlocation-205/>.

Ibid.

‘The Waroona Tragedy - Evidence at the Inquest - A Charge of Murder’, The Kalgoorlie Miner, (Thursday, 12 September 1907), 6 <https://trove.nla.gov.au/ newspaper/article/90406287>.

Harvey History Online, Reminiscences of Mrs Mary Venables (nee Piggott), Harvey District, <https://www. harveyhistoryonline.com/?p=3328#_ftnref19>.

Catherine Noske, ‘An Inside Look at Issue 62.1: John Weller’s ‘Wellington Location 205’, (July 2017), Westerly Magazine <https://westerlymag.com.au/ inside-look-issue-62-1-john-wellers-wellingtonlocation-205/>.

Ibid.

Harvey History Online, Reminiscences of Mrs Mary Venables (nee Piggott), Harvey District, <https://www. harveyhistoryonline.com/?p=3328#_ftnref19>.

Ibid.

Ibid.

‘The Waroona Tragedy - Evidence at the Inquest - A Charge of Murder’, The Kalgoorlie Miner, (Thursday, 12 September 1907), 6 <https://trove.nla.gov.au/ newspaper/article/90406287>.

Ibid.

Brian Purdue, Legal Executions (Foundation Press, 1993), 47.

‘The Waroona Tragedy - Evidence at the Inquest - A Charge of Murder’, The Kalgoorlie Miner, (Thursday, 12 September 1907), 6 <https://trove.nla.gov.au/ newspaper/article/90406287>.

Ibid.

Harvey History Online, Reminiscences of Mrs Mary Venables (nee Piggott), Harvey District, <https://www. harveyhistoryonline.com/?p=3328#_ftnref19>.

‘The law must take its course. - Condemned Man Protests His Innocence.’, The Advertiser (Adelaide South Australia), (Thursday, 17 October 1907), 7 <https://trove.nla.gov.au/newspaper/page/933102>.

This is seven days after his execution.

‘The Waroona Murder, Execution of De Kitchelan, A prayer on the scaffold, rambling letters’, The West Australian, (Thursday, October 24, 1907), 7 <https://trove.nla.gov.au/newspaper/ article/25715967/2561304>.

Ibid.

‘The law must take its course. - Condemned Man Protests His Innocence.’, The Advertiser (Adelaide South Australia), (Thursday, 17 October 1907), 7 <https://trove.nla.gov.au/newspaper/page/933102>.

‘The Waroona Murder, Execution of De Kitchelan, A prayer on the scaffold, rambling letters’, The West Australian, (Thursday, October 24, 1907), 8 <https://trove.nla.gov.au/newspaper/ article/25715967/2561304>.

Ibid.

19

ion it t e p m o C ll a b y e h Voll c a e B d e ix M C L Y

On Friday, 21 February, over 90 lawyers hit the sand to compete in the 2020 YLC Mixed Beach Volleyball Competition, before restrictions on social gatherings were introduced.

This exciting event saw 11 teams battle it out over five rounds, with Allen & Overy claiming the top prize after facing Norton Rose Fulbright in the grand final.

Special mention to Allens and King & Wood Mallesons who also made it to the semi-finals.

It was a great evening of fun and friendly competition, with pizza, drinks and catch-ups to finish off the night.

Thank you to all the teams who joined in on the fun and congratulations to this yearâ&#x20AC;&#x2122;s winners.

20 | BRIEF APRIL 2020

A Matter of Trust

The ATO’s Current Position on Trust Splitting

By Alexander Sceales, Partner, Sceales Lawyers

A mild-mannered tax lawyer often approaches the prospect of a non-taxing, extended, festive season break with a quivering lower lip, ever fearful of not having yet another enactment, ATO missive or Court decision to digest. Any such fears were put to rest by the Federal Commissioner of Taxation on 13 December 2019, when he released his final views on the issue of whether a form of ‘trust split’ will cause a new trust to be settled over some but not all of the assets of a discretionary trust.

Taxation Determination TD 2019/14 (“TD 2019/14”)1 sets out the Commissioner’s position on the matter of whether capital gains tax (“CGT”) event E1 happens under s104-55(1) of the Income Tax Assessment Act 1997 (Cth) (“ITAA97”), depending upon the type of ‘trust splitting’ arrangement which a daring tax lawyer might attempt.

Background The term ‘trust split’ has long been recognised by taxation and trust lawyers as encompassing a range of arrangements designed to separate control, and beneficial ownership, of assets held on the terms of a discretionary trust estate.

Fundamentally, a trust estate is not an entity, but rather may be described as a relationship2 or as an obligation.3 A trust continues despite any changes to the trustee, the trust property, the beneficiaries, or the terms of the trust when amended in accordance with those terms.4 In that context, the term ‘trust

split’ is misleading in so far as a trust estate is not an entity which is capable of being divided.

to a subset of the beneficiaries of the original trust. The new trustee is controlled by a different subset of beneficiaries.

•

A different appointor is appointed in respect of the part of the fund held by the new trustee, the control of the new appointor aligned with the control of the new trustee.

•

The rights of indemnity of the trustees are segregated such that each trustee can only be indemnified out of the assets held by that trustee.

•

The expectation is that the new trustee will exercise its powers in respect of the assets it holds independently of the original trustee to benefit one subset of beneficiaries to the exclusion of others. The original trustee is also expected to exercise its powers in respect of the assets held by it independently of the new trustee to benefit instead a different subset again to the exclusion of others. This is so whether the range of beneficiaries that can benefit from particular assets is expressly limited.

•

The rights, obligations and powers of the trustees and beneficiaries remain governed by the one deed.

•

The original trustee and new trustee keep separate books of account.

•

The new trustee may also seek to apply for a new tax file number and/ or Australian business number, and commence to lodge a separate

Typically, a ‘trust split’ is intended to avoid the application of section 104-55(1) of ITAA97, which provides: “(1) CGT event E1 happens if you create a trust over a CGT asset by declaration or settlement.

Note: a change in the trustee of a trust does not constitute a change in the entity that is the trustee of the trust (see subsection 950-100(2).

This means that CGT event E1 will not happen merely because of a change in the trustee.”

As mentioned in TD 2019/14, a trust split may involve many of the following steps:5 •

•

The trustee of an existing trust is removed as trustee of part/some of the trust assets and a new trustee is appointed to hold those assets.

Control of the original trustee is changed such that control passes

21

return in respect of the income derived from the assets it holds.

The request put to a practitioner to ‘split my trust’ is often made in the context of planning for generational family succession in ownership of multi-faceted business enterprises, or of real property assets, or in family law matters.

Consider, for example, the following scenario, as outlined in TD 2019/14:6 •

•

The Star Trust is a discretionary trust that was settled in 1980 to benefit John Smith and his family members being his spouse, children, grandchildren and their lineal descendants. John has two children from his first marriage - Ben and Holly Smith. He has two children with his second spouse, Jane Smith.

The trustee of the Star Trust is Star Trustee Pty Ltd (Star Trustee).

The trust deed gives the trustee the absolute discretion to appoint income to any one or more of the beneficiaries.

•

The assets of Star Trust are 300 shares in Sun Pty Ltd.

•

John Smith passed away in 2010.

Since his death, Star Trustee has been controlled by Jane and Ben. Jane and Ben are also the current appointors in respect of the whole trust.

22 | BRIEF APRIL 2020

•

•

Since John’s death, there has been conflict between the children from his first marriage, and Jane and her children.

To allow the two branches of John’s family some level of autonomy and limit the amount of interaction required between them, Star Trustee varies the trust deed pursuant to a power of amendment, and deeds of appointment are executed to implement a trust split as follows:

(a) A new company owned and controlled by Jane is created, Moon Trustee Pty Ltd (Moon Trustee). (b) Ownership and control of Star Trustee is changed such that control of this company is now held by Ben and Holly. (c) Star Trustee is removed as trustee of 100 shares and Moon Trustee is appointed as trustee of those shares in its place. (d) In accordance with the deeds executed, the remaining 200 shares held by Star Trustee are designated as the corpus of the Star Trust and the 100 shares to be transferred to Moon Trustee are referred to as the corpus of the Moon Trust. (e) Jane resigns as appointor in respect of the Star Trust and is appointed as appointor in respect

of the Moon Trust. (f) Star Trustee’s rights of indemnity are limited so that it can only look to the assets that remain in its control to satisfy its rights to be indemnified (200 shares in Sun Pty Ltd). (g) Moon Trustee’s rights of indemnity are similarly limited to the assets that are in its control (100 shares in Sun Pty Ltd). (h) Legal ownership of 100 shares in Sun Pty Ltd is transferred from Star Trustee to Moon Trustee. (i) No changes are made to the range of beneficiaries in favour of whom either trustee can exercise its power of appointment. However, the expectation is that Moon Trustee will hold 100 of the Sun Pty Ltd shares for the benefit of Jane and her children to the exclusion of Ben and Holly, and conversely Star Trustee will hold the remaining 200 Sun Pty Ltd shares for the benefit of Ben and Holly to the exclusion of Jane and her children.

Query whether this arrangement causes a new trust to be settled over the shares held by Moon Trustee in Sun Pty Ltd, with the result that CGT event E1 happens?

The Taxation Determination TD 2019/14 was first issued as Draft Taxation Determination TD 2018/ D3. The Commissioner called for submissions in relation to the Draft, as is his usual practice. Not all submissions, or commentary, were supportive of the Commissioner’s draft views.7 Nevertheless, the Draft was finalised as TD 2019/14, albeit with some minor amendment to its terms.

A detailed consideration of the various concepts traversed in TD 2019/14 is beyond the scope of this article. For present purposes, it is instructive to consider the Commissioner’s approach to the terms “trust”, “trust estate” and “trust fund”.

For tax purposes, Division 6 of Part III of ITAA 1936 (which comprises the principal taxing regime for trusts) refers to the taxation of “trust estates”. Section 10455(1) of ITAA97 refers to the creation of a new “trust”. The statutory regime does not generally refer to “trust funds”.

Rather, the latter expression tends to be reserved for use in trust deeds and the like, or in common parlance as a term of art, to refer to the assets held by a trustee on the terms of a particular settlement.

In TD 2019/14, the Commissioner conflates these terms to mean the same thing. This appears to lead to the conclusion that if a new trustee is appointed to hold particular assets of an existing trust estate separate to the assets held by the original trustee, thus creating a new trust fund, but which assets are held for the benefit of the same beneficiaries and otherwise on the same terms as held by the original trustee, then a new trust estate must be created. It is submitted that any such conclusion is problematic in so far as it

fails to identify a new charter of rights and obligations in respect of those assets, as indeed none is created.

To support his position, the Commissioner expresses the view, among others, that in practical terms a ‘split’ trust could not be administered as a single trust fund if income derived and expenses incurred by each trustee are not pooled when determining net income of the trust estate.8 Further, he considers it is conceivable that each trustee would in due course seek to vary the terms of the trust deed as that relates to the assets it holds, and to vary the range of the beneficiaries favoured by that trustee.9 There is, accordingly, something of a leap in logic to the position that a ‘trust split’ of the kind described earlier in this article must result in the creation of a new trust estate to which section 10455(1) applies.

Be that as it may, the Commissioner leaves room in TD 2019/14 for a ‘moderate’ form of ‘trust split’ where the right of each trustee to indemnity out of the trust fund is not limited to the assets held by it, where all of the income and expenses of the trust estate as a whole are taken into account in determining net income, and where a single tax return is prepared.10 That may provide an opportunity to achieve a degree of separation in trust assets in amicable circumstances, albeit not an entirely satisfactory result.

With any luck, a not so mild mannered tax practitioner will see fit to test the Commissioner’s views before the Court.

It will be interesting to see how a Court approaches the issue.

Duties Act One must bear in mind the implications of the Duties Act 2008 (WA) (“Duties Act”) if dutiable property will be the

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subject of any trust split. In particular, Division 2 of Part 5 of the Duties Act, which deals with trust acquisitions and surrenders, will apply if a trust split results in there being different takers in default in respect of each resulting trust fund.

Further, and perhaps more likely to apply, section 119(3)(a) of the Duties Act, paraphrased, provides for the charging of nominal duty on a transfer of dutiable property to a trustee as a consequence of the appointment of a new trustee provided the transfer is not a scheme or arrangement for conferring an interest in trust property on a new trustee or any other person to the detriment of the beneficial interest of any person.

While section 119 may not, on the face of it, appear problematic if there is no change in the persons who may benefit, one is faced with the challenge of persuading the assessing officer at State Revenue to accept that there is no such scheme or arrangement before any nominal duty assessment will issue. That is often not as straightforward a task as it might first seem to be.

Endnotes 1

2 3 4

5 6 7

8 9 10

Taxation Determination TD 2019/14, Income tax: will a trust split arrangement of the type described in this Determination cause a new trust to be settled over some but not all assets of the original trust with the result that CGT event E1 in subsection 104-55(1) of the Income Tax Assessment Act 1997 happens?

Jacobs’ Law of Trusts (8th Edition at [1-01]).

Ford and Lee 1990, Principles of the Law of Trusts, 2nd edition, Sweet & Maxwell Ltd at [1.010].

See the discussion in FCT v Commercial Nominees of Australia Limited [2001] HCA 33 at [36-37]; FCT v Clark [2011] FCAFC 5.

Ibid 1 [2].

Ibid 1 [5] See in particular the submission of the Law Council of Australia, Business Law Section, dated 10 August 2018.

Ibid 1 [49].

Ibid 1 [50].

Ibid 1 [13] – [22], paraphrased.

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23

It’s the Constitution, it’s Mabo, it’s Justice, it’s the Law, it’s the vibes.”

The Castle, 1997

Federation, Canberra and the High Court Of Australia

By Sally Gaunt (née Arnott ) BA LLB (SYD), Fellowship of Australian Writers (WA)

Before 1901 Australia did not exist as a nation but merely as a collection of colonies.

In the late 19th Century, residents of the colonies were discussing whether they should federate into a new nation. If so, what would be the structure of this new federation.

The consensus of opinion was that trade, immigration and defence and other items were national issues.

The Australian Constitution was drafted at a series of constitutional conventions held in 1891 and throughout 1897 and 1898. Presided over by Sir Henry Parkes (the “father of Federation”), delegates considered a draft constitution written

by Andrew Inglis Clark and Sir Samuel Walker Griffith.

24 | BRIEF APRIL 2020

In between these sessions there was intense debate in the colonial parliaments and the newspapers.

Educated at Sydney University, Griffith was reknown for arguing brilliantly on any side on any subject. Twice Premier of Queensland and a former Chief Justice of that State, he had become a cautious lawyer and a practical politician. In the words of Deakin, the final Constitution “bore the stamp of his patient, untiring handiwork, his clear style and force of expression”1.

My great grandmother (paternal) Sara Nolan, Temperance Leader, Suffraget and a clergyman’s wife from the

Shoalhaven, New South Wales would have known many of the eminent persons drafting the Constitution. It was the issue of the day2.

New Zealand considered becoming a federated State but in 1891 decided to become a separate nation. Western Australia became the final colony to decide to federate (1900).

The British Government passed the Australian Constitution Act in 1900.

Signed by Queen Victoria, this Act came into effect on 1 January 1901. It created a nation with an Executive, Legislature and Judicature. The original may be sighted in the National Archives in Canberra.

S.51 of the Constitution enumerates the specific exclusive powers of the

Commonwealth; the States were to have all other powers not exclusive to the Commonwealth. There were some shared powers over which the Commonwealth and the States could legislate (taxation, for example).

A new capital, at least 100 miles from Sydney, was to be built within its own Territory. Melbourne, the largest city and Sydney, the oldest city both laid claim to become the new capital. The SydneyMelbourne rivalry was so intense that neither city would agree to the other being the capital. Finally a compromise was reached: a new capital would be built between Sydney and Melbourne.

In 1913, following an international competition, the designs for a new capital, drawn by Walter Burley Griffin and his architect wife Marion were accepted as the winning designs.

The city to be built was to be divided in half with a large lake separating administration from residential areas. Site works commenced on 13 March 1913.

Planned cities designed by architects from drawing board to completion include Brasilia (by Oscar Niemeyer), Chandigarh (by Le Corbusier), Naypyidaw in Myanmar, Ottawa and Canberra.

Some believe that this planning creates cities that are bland, dull or even ghost towns: the kind of places from which residents seek to escape. I have heard Canberra described as “soulless” but in a recent visit, after a 50 year absence, I found our tree-lined national capital (population 395,000) beautiful, clean and spacious. It also has a thriving population. As welcome as rain after drought, was the helpful advice I received from the city’s bus drivers.

What is the High Court? Is it a building in Canberra? Is it the body of decisions made by the Justices who sit in that court? Is it a Court or Review created and enshrined in the Australian Constitution? Or is the High Court all of these?

Viewed as an axis from Federal Parliament which sits on Capital Hill at one end (new Parliament House) one can look west to old Parliament House, a distance of approximately three kilometres. Intended to be a temporary building, it was used as the Federal Parliament from 1927 to 1988. Australia’s beloved wartime Prime Minister John Curtin lay in state in this building after his death in 1945.

On the steps of old Parliament House on 11 November 1975, Prime Minister Gough Whitlam made a famous speech about being sacked as Prime Minister

by Governor-General Sir John Kerr. Old Parliament House is now the home of the Australian Museum of Democracy. The new Parliament House is only 22 years old, with ample space to accommodate anticipated growth in the 21st century.

Sir Samuel Walker Griffith – inaugural Chief Justice High Court, 1903-1919

The axis continues to the High Court and then across Lake Burley Griffin to Mount Ainslie with the National War Museum at its base.

Aboriginal and Torres Strait Islander peoples are part of the longest existing cultures on Earth, with evidence of their presence in Australia dating back 60,000 years. After colonisation, lack of immunity to introduced diseases such as smallpox and measles, loss of traditional lands and other shameful events caused the Indigenous population to diminish.

The 1967 Constitutional Amendment was a turning point, revealing a widespread desire for Indigenous equality. The amendment allowed access to federallyfunded social and education services and allowed for Aboriginal and Torres Strait Islander people to be included in the national census, a pathway to further federal funds.

In Mabo and Others v Queensland, the High Court ruled in 1992 (6:1) that the doctrine of terra nullius should not have been applied to Australia and that the common law would recognise native title. Following the Mabo judgment, the Keating Federal Government passed the Native Title Act 1993, which established a legal framework for native title claims throughout Australia.

On the lawn, in front of Old Parliament House, is Aboriginal Tent City, a collection of tents and shacks under the Aboriginal flag. Manned by Aboriginal

activists, it is a symbol of protest against the handling of Indigenous issues by successive governments and is a de facto meeting place. Over 40 years it has gained acceptance; on my visit all seemed quiet.

From old Parliament House to the High Court, which sits on Lake Burley Griffin, it is another three kilometres. Built in a monumental, ‘brutalist’ architectural style, I approach via a wide walkway, bordered by an artificial stream burbling over rocks to a glass facade.

The High Court is not sitting on the day of my visit but staff take me on a guided tour. Inside I counted two First Instance Courts with seven chairs for seven justices and one Court of Appeal with five chairs for five justices. Also Justices’ Chambers. Quorum may vary on the nature of each case.

From the windows of the Court of Appeal, one can see the Captain Cook water spout, which leaps an impressive 60 metres into the air, but I am told only between the hours of 11am and 4pm. To save on electricity costs? The beautiful woodwork in all courts appeared to be light cedar.

The Federal Government announced in 1968 plans for a High Court building to be constructed in Canberra.

Previously the registry for the High Court was located in Sydney and then in Melbourne. Building was commenced in 1975 and completed in 1980.

25

On the first floor is a Registry Office for lodging originating documents. There are very wide ramps for counsel, press, public, litigants and the wheeling of Commonwealth Law Reports. I see large beautiful paintings and a picture window with the Australian coat of arms in the centre, with a superb view of Lake Burley Griffin.

In Court Room 1 is a huge tapestry of the Federation Star. This seven-pointed star symbolises the Federation Of Australia: six points represent the six original States, while the seventh represents the seventh and any other future States.

Below the Federation Star are emblems representing the six States. The Federation Star also appears, along with the Union Jack and the Southern Cross, on the Australian Flag.

Also in Court Room 1 is a portrait of the inaugural Chief Justice, Queenslander, Sir Samuel Walker Griffith (1903-1919).

The High Court was created by S.111 of the Constitution. It has an original and an appellate jurisdiction. It hears appeals from State Supreme Courts and the Federal Court. It is now the final Court of Appeal in Australia as it is no longer legal to appeal to the Privy Council. Since 1986 it is not possible to appeal from a State Supreme Court directly to the Privy Council.

There are seven Justices of the High Court. The present Chief Justice is the Honourable Susan Kiefel, a Queenslander. The youngest Justice is Justice Edelman, a West Australian

26 | BRIEF APRIL 2020

appointed in 2017. The mandatory age of retirement is 70.

implied right of freedom of political belief and expression.

Where a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid (s.109).

The 1997 movie The Castle explores a citizen’s right to just compensation for expropriation of property. In the film, father Darryl (a tow truck driver) receives notice that his property is to be compulsorily acquired for airport extensions at Tullamarine. Most lawyers never mount a High Court challenge during their professional lives. Darryl’s suburban practitioner is doing a woeful job attempting to do so until Laurie, a retired QC and constitutional law expert saves the day arguing in the High Court that Darryl has not just a “house” but a “home” upon which no true value can be placed. The Castle is a beautiful film and, as far as I know, the only one to explore the workings of the High Court and the Australian Constitution.

There is a long history of dissatisfaction in parts of Australia over “centrist” government. Western Australia perceived a financial imbalance between that State, Canberra and the Eastern States. Especially in the Gold Rush and mining booms, Western Australia appeared to be putting a disproportionate sum into national coffers in return to what was paid back. There has been persistent talk of secession from the Federation in the West, the issue being taken up by some politicians and entrepreneurs. Similar disaffection has been expressed by Northern Queenslanders. A belief that judgments of the High Court favoured Canberra has fuelled various States’ rights groups. In fact, the Constitution attempted to create a balance.

The Australian Constitution, unlike the Constitution of the United States, does not contain a Bill of Rights. At the 1898 Convention delegates considered whether one should be included; the majority opinion was that the rights and freedoms enjoyed under British law were sufficient. Some rights are included: freedom of religion, trial by jury, just compensation for Commonwealth expropriation of assets. There is an

The author is a writer and retired lawyer living in Perth, Western Australia. She studied Constitutional Law I under John Mackinolty and Constitutional Law II under Paddy Lane graduating in Arts and Law from the University of Sydney in 1976. She practised law in the Northern Territory and Western Australia for thirty years.

Endnotes 1

Griffith, Sir Samuel Walker by R.B. Joyce, Australian Dictionary of Biography.

2

Nolan, Sara Susan (1843 – 1927) by Ian Tyrrell, Australian Dictionary of Biography.

BOOK REVIEW

Beyond the Equator

By Nicholas Hasluck Review by Megan Cramp, Senior Attorney at KBR and Member, Brief Editorial Committee

A self-described “West Australian, lawyer by training and writer by inclination” – Nicholas Hasluck tells the story of his life in London in the 1960s in memoir Beyond the Equator.

To a lively storyteller, the world beyond the equator is still the miracle it always was. Hasluck certainly is a lively storyteller and no stranger to fiction.

Indeed, this retired WA Supreme Court Judge is the author of numerous novels, poems and short stories. With the assistance of meticulous diary entries and an eye for detail, Hasluck tells of setting sail for London in pursuit of a post-graduate law degree at Oxford University. Hasluck describes spirited parties, a chance encounter with his future wife at the dilapidated International Language Club and arduous studies interspersed with misadventures in Europe.

Hasluck provides a glimpse into the unseen world of a time long past. With a penchant for describing intellectual debate, he informs the reader of the history of sites visited and of his views on the current events of the time. The reader is sure to leave having gained some knowledge and appreciation of history,

politics and the connection between Australia and its English heritage. Indeed, this may have been one of the aims of the author. Hasluck believes that lawyers require a broad understanding of society and a well-rounded perspective in order to be successful.

These intellectual musings are, however, generously interspersed with humour and adventure. A particularly entertaining portion of the book is devoted to Hasluck assuring his tutor that he would spend the summer holidays studying before departing on a three-month jaunt through Europe. His adventures include a hazardous encounter with a rollercoaster, beer halls and entertaining travelling companions. Hasluck also tells of numerous occasions spent in the company of recognisable historical figures and luminaries. Hasluck attended the Oxford Union, where he witnessed the likes of Malcolm X and James Baldwin orate. Family connections also play a role. Hasluck is the son of Sir Paul Hasluck, a Minister in the Federal Government under Robert Menzies and former Governor-General of Australia.

Despite his education and family

connections, the reader is left with the impression that Hasluck is a modest and ‘down to earth’ character in the way that one would expect of a true West Australian.

Beyond the Equator is the eloquently told story of a man with a passion for life, law, current affairs, history, literature and debate. It provides an engaging and thought-provoking read. The reader should not expect a ‘tell all’ – Hasluck provides just enough detail to engage the reader without descending into this manner of memoir. Rather, he presents an intellectually enriching and captivating read which ought to be read slowly and savoured.

27

New Annualised Wage Arrangements in the Legal Services Award

By Mark Hemery Partner, Hotchkin Hanly

Review of the Legal Services Award 2010 Commencing in 2014, the Fair Work Commission (Commission) conducted its first four-yearly review of modern awards under section 156 of the Fair Work Act 2009 (Cth) (FW Act). The Legal Services Award 2010 (Cth) (2010 LSA)1 was one of the 122 modern awards under review.

On 25 November 2019, following the review, the Commission issued a new Legal Services Award 2020 (Cth) (2020 LSA).2 Among other changes, the new 2020 LSA includes revised, and considerably more complex, rules for annualised wages3 (previously known as annualised salaries in the 2010 LSA).

Identical arrangements have been included in 20 other industry-based modern awards.4 The revised annualised wage arrangements are complex, controversial and impose an increased compliance burden on employers. Given that a large number of industries are affected, the new rules are likely to be tested in the Commission and/or the courts before too long.

Legal profession employers or employees 28 | BRIEF APRIL 2020

in doubt as to their rights and obligations under the annualised wage arrangements in the 2020 LSA, should consider getting independent advice. This article should not be relied upon as a substitute for such advice.

Who is affected by the change?

The 2020 LSA (like the 2010 LSA) only applies to the employment of administrative staff, paralegals and law graduates5 by a national system employer as defined by the FW Act.6 All WA incorporated legal practices are national system employers within the FW Act and, therefore, bound by the 2020 LSA. In addition certain unincorporated legal practices may be national system employers. Two examples are partnerships registered in other states or territories that have referred their industrial relations powers to the Commonwealth, and unincorporated practices that employ staff through a service company.7 Employment by all other WA unincorporated legal practices (i.e. sole practitioners and partnerships) remain regulated under the State industrial

relations system and are not subject to the 2020 LSA. As was the case under the 2010 LSA, admitted legal practitioners and managers employed by legal practices that are national system employers remain awardfree. These employees, nevertheless, enjoy all other employee rights8 and entitlements9 provided for in the FW Act.

When did the new rules start?

The annualised wage arrangements in the 2020 LSA started from the first full pay period on or after 1 March 2020.10 So, for example, if an employee’s fortnightly pay period started on Friday, 28 February 2020, the new rules did not start until the next pay period commencing on Friday, 13 March 2020.

What is an annualised wage arrangement?

Modern awards of the Commission typically contain not only a minimum wage for each classification, but also non-wage entitlements such as overtime, allowances, penalty rates and leave loading.

In any pay period, the non-wage entitlements can vary for each employee, depending upon their pattern and hours of work. In order to pay employees in compliance with a modern award, therefore, employers must perform an employee-by-employee calculation for each pay period.

The initial modern awards under the FW Act, including the 2010 LSA, provided for annualised wages (then called annualised salaries) to simplify and streamline compliance with employers’ monetary award obligations. Under such arrangements, employers are permitted as an efficiency measure to pay a flat ‘all in’ wage periodically over a year.

The annualised wage must be sufficient, however, to fully satisfy all the award entitlements their employees otherwise would have received during that year.

Annualised wage arrangements, including those under the 2010 LSA, can disadvantage the employee if the annualised wage (set at the start of the year) turns out (at the end of the year) to be insufficient to fully compensate the employee in lieu of the award. The modern awards made in 2010, including the 2010 LSA, did not require the necessary adjustment to be made until after the end of the year in question.

The new annualised wage provisions in the 2020 LSA are intended to strengthen protections against underpayment arising in this way.

What can be included in an annualised wage arrangement?

The 2020 LSA provides11 that an annualised wage arrangement can include minimum rates12, allowances13, overtime14, early morning, afternoon and night shift penalty rates15 and annual leave loading.16

Employers who wish to take advantage of this provision, will need to make sure their employees’ annual wage is high enough to cover the award entitlements that have been included in the arrangement (or if the employment ceases earlier over such lesser period as has been worked).17 All classifications of employees under the 2020 LSA can be paid an annualised wage. Further, the arrangement need not be agreed by the employee; it can be implemented by the employer unilaterally.

What records must be kept?

Under the 2020 LSA, employers need to record the annualised wage arrangement in writing and give their employees a copy.18 The written record needs to specify the annualised wage that will be paid19, which award entitlements are included20, how the annualised wage has been calculated, including any assumptions used21 and the maximum (or ‘outer limit’) number of penalty hours and overtime hours the employee can work in a pay period or roster cycle without extra payment.22 The employer must also record each employee’s starting and finishing times and unpaid breaks taken. Each employee must acknowledge that the record of hours worked is correct by signing in writing or electronically at the end of every pay period or roster cycle.23 The Fair Work Ombudsman provides, at its website, an annualised wage arrangement template that can be used to record the details of an annualised wage arrangement.

How do overtime and penalty rates work?

Being paid an annualised wage under the

2020 LSA does not mean an employee misses out on overtime or penalty rates.

An employee’s annualised wage can and will generally include an amount for penalty rates and overtime. Sometimes the annual wage will not, however, be enough if the employee unexpectedly is required to work extra hours or at times they do not usually work.

If an employee does work more than the documented ‘outer limit’ of hours in a pay period, they are entitled under the 2020 LSA to be paid at their award overtime or penalty rate for that pay period.24

What is an annual reconciliation?

Under the 2020 LSA, employers must undertake a reconciliation of their employees’ annualised wages every 12 months after the arrangement starts, when the arrangement ends, or when the employment ends. 25 Under the reconciliation, the employer will have to make sure their employees have been paid at least the same amount they would have otherwise been paid under the 2020 LSA for all of the hours worked.

If the annualised wage is less than they would have received, the employer must pay the difference within 14 days.26

Are there any transitional provisions?

No. The Commission delayed the effective date of the annualised wage arrangements under the 2020 LSA from 4 February 2020 (the date of effect of all other provisions)27 to 1 March 2020, to provide affected employers with time to plan and implement any necessary changes.

As a consequence, if a national system employer had in place, before 1 March

29

2020, an annualised salary arrangement that was compliant with the 2010 LSA, and has continued it after 1 March 2020, the arrangement is likely to be non-compliant with the 2020 LSA. The employer is likely to be in breach of the FW Act, and will be until the arrangement is discontinued, or brought into compliance with the 2020 LSA. The consequences of such a breach of the 2020 LSA, even if inadvertent, can be very serious. A national system employer who breaches a term of a modern award breaches a civil remedy provision28 of the FW Act29. Such a breach exposes the employer, along with any individual ‘involved’30, to court orders under the FW Act, including substantial civil penalties.31 Any legal practice in this predicament would be well advised, as soon as possible, to review, and vary as necessary, any potentially non-compliant arrangement.

30 | BRIEF APRIL 2020

What records must be kept?

The FW Act32 requires national system employers to make, and keep for seven years, employee records of the kind prescribed by the Fair Work Regulations 2009 (Cth) (FW Regs) in relation to each of its employees.

The FW Regs prescribe the form33 and content34 of the employee records that must be made, and kept for seven years, in relation to, among other things, pay35 and overtime36. While the FW Regs do not contain a specific provision for records of an annualised wage arrangement, it is likely that the regulations prescribing the records for pay and overtime are defined broadly enough to catch the records required for an annualised wage arrangement under the 2020 LSA. If so, a national system employer who fails to make, and keep for seven years, the annualised wage records required under the 2020 LSA, would contravene a separate civil remedy provision of the FW Act37. Such a contravention would expose the employer, along with any person

‘involved’38, to court orders under the FW Act, including the payment of substantial civil penalties.39

Are there any alternatives to an annualised wage arrangement?

It appears that the record-keeping required to implement a compliant annualised wage arrangement under the 2020 LSA is now as onerous as that required to pay employees in accordance with the award.

That being the case, it is likely that many employers subject to the 2020 LSA will decide it is not worth the effort to introduce or continue an annualised wage arrangement.

Given this, employers bound by the 2020 LSA may wish to consider other options that might still allow them to pay a flat ‘allin’ rate and so avoid the complications of paying the variable monetary entitlements under the award in each pay period.

There are four options available.

First, a set-off clause in common law

employment contracts40, secondly, individual flexibility arrangements under the 2020 LSA41, thirdly, guarantees of annual earnings under the FW Act (only applicable to employees earning above the high income threshold, currently $148,700)42 and fourthly, an enterprise agreement under the FW Act.43 Importantly, unlike an annualised wage arrangement, these four options each require agreement from the affected employee or employees.

While each of the four alternatives to an annualised wage arrangement has the potential to streamline payroll, each carries its own legal and practical implementation challenges (not the least of which is securing employee agreement).

Ultimately, each affected legal practice will need to consider its own circumstances and determine the option, or combination of options, that suits it best.

What about employment under the State system?

Until the advent of the FW Act, employment in WA’s legal profession (other than in the public and community sectors) was regulated under WA’s industrial relations system. Further, all such employment was award-free.

Since the passage of Work Choices in 2007, national system employers and their employees have been subject to federal regulation. The 2010 LSA introduced, for the first time, award coverage for WA legal industry employees.

Whilst these changes have been taking place at the federal level, non-national system employers and their employees in the WA legal profession have remained

award-free under the State system.44 To date, no State award equivalent to the LSA has been made by the Western Australian Industrial Relations Commission (WAIRC).

In the absence of award coverage, the minimum conditions of employment for all legal profession employees in the WA State system are contained in the Industrial Relations Act 1979 (WA) and the Minimum Conditions of Employment Act 1993 (WA). While a minimum wage is determined annually by the WAIRC, because there is no award coverage, there are no other monetary entitlements such as overtime, allowances, penalty rates and loadings. State system employers, therefore, have no cause at present to consider introducing annualised wage arrangements, because there is no inefficiency to address.

This state of affairs may not continue indefinitely, given the recommendation, in June 2018, in the Ministerial Review of the State Industrial Relations System: Final Report, that award coverage in the State system be expanded to include ‘employees who are not covered by a State award but … who would be covered by a modern award if employed in the national industrial relations system’.45 That said, it is likely that any move to implement this recommendation will be delayed, until at least after the next State election is held during 2021.

6.

Sections 12, 14, 30C & 30M.

7.

For more detailed guidance see Law Society of Western Australia, Information Guide: Law Graduates’ and Junior Legal Practitioners’ Working Pay and Conditions, June 2018, p 18.

8.

For example, the general protections under Part 3-1.

9.

For example, under the National Employment Standards in Part 2-2.

10.

Determination PR716598, 12 February 2020 (Hatcher VP, Dean DP and Saunders DP).

11.

Clause 17.1(a).

12.

Clause 15.

13.

Clause 18.

14.

Clause 20.

15.

Clause 21.3.

16.

Clause 22.5.

17.

Clause 17.2(a).

18.

Clause 17.1(b).

19.

Clause 17.1(b)(i).

20.

Clause17.1(b)(ii).

21.

Clause 17.1(b)(iii).

22.

Clause 17.1(b)(iv).

23.

Clause 17.2(c).

24.

Clause 17.1(c).

25.

Clause 17.2(b).

26.

Ibid.

27.

Determination PR714193, 25 November 2019 (Ross J, Clancy DP and Bissett C).

28.

Subsection 539(1) read with column 1 of item 2 in the table in subsection 539(2).

29.

Section 45.

30.

Subsection 550(2).

31.

Section 546 (Pecuniary penalty orders); section 557A (Serious contravention of civil remedy provisions).

32.

Subsection 535(1).

33.

Regulation 3.31.

34.

Regulation 3.32.

35.

Regulation 3.33.

36.

Regulation 3.34.

37.

Subsection 539(1) read with column 1 of item 29 in the table in subsection 539(2).

38.

Subsection 550(2).

39.

Section 546 (Pecuniary penalty orders); section 557A (Serious contravention of civil remedy provisions).

40.

See Linkhill Pty Ltd v Director, Office of the Fair Work Building Inspectorate [2015] FCAFC 99 per North and Bromberg JJ at [39] to [67] for a comprehensive review of the principles governing the right to deduct payments made from award entitlements.

NOTES: 1.

The Commission’s reference for the LSA is [MA000116].

2.

Determination PR714193, 25 November 2019 (Ross P, Clancy DP and Bissett C).

41.

Clause 5.

3.

Determination PR716598, 12 February 2020 (Hatcher VP, Dean DP and Saunders).

42.

Division 3 of Part 2-9.

43.

Part 2-4.

4.

For the full list see [2019] FWCFB 8583 (Hatcher VP, Dean DP and Saunders DP) at [1].

44.

Ministerial Review of the State Industrial Relations System: Final Report, June 2018 at p 372.

5.

Clause 12.

45.

Ibid.

Gifts in Wills help us get closer to our vision of a cancer free future for our community.

How are we going to achieve this?

Cancer research

Cancer services and support

Cancer prevention

As WA’s largest independent funder of cancer research, we fund the best and brightest researchers, targeting all cancers from every angle which provides opportunities for cancer patients to access clinical trials here in WA.

With over 87,000 West Australian’s living with cancer, we provide support from the point of diagnosis through to treatment and beyond by providing accommodation at our Lodges in Perth, counselling, wig libraries, transport to treatment and much more.

By empowering healthier lifestyles, shaping public policies and creating environments for West Australians to reduce their risk of cancer.

When writing a Will for a client please ask them to consider a charitable gift.

To find out more contact us on 08 9212 4333 or visit cancerwa.asn.au/a-gift-in-will/ Cancer Council Western Australia (Inc). Level 1, 420 Bagot Road, Subiaco, WA, 6008 ABN: 15 190 821 561

31

Lawyer Competence on the Professional Radar Gino Dal Pont Professor, Faculty of Law, University of Tasmania

Ethics Column

•

Questions of lawyer competence, long the province of legal obligation and responsibility, have over the last three decades or so entered the professional domain.

not confined to what may be described as ‘technical’ competence, that is, knowledge of the law and procedure;6 it can, for instance, comprise particular skills, efficiency and effectiveness.

•

While, from a professional perspective, ‘competence’ lacks a generally accepted meaning, its parameters are not static.

•

In modern times, those parameters arguably comprise competence in the use and application of technology in law practice.

Whatever may fall within ‘competence’ — whether for legal or professional purposes — what is certain is that it is not static. The very nature of the law, and its practice as a professional, dictates that competence expectations can shift. It was not that long ago (1980s–1990s), after all, that Australian law explicitly recognised that lawyers with particular expertise could be exposed to a more stringent tortious standard of care.7

The law has long imposed upon lawyers a duty of competence in the delivery of legal services. Indeed, the principal barrier to entering the legal profession (and indeed other professions) targets competence, substantiated by academic and practical study over a period of years. This special skill and learning barrier to entry makes it legitimate for the law (and clients) to expect a commensurate standard of competence.

For many years, the foregoing was simply assumed, safe in the belief that the shadow of tortious liability would propel lawyers to strive for and maintain competence.

Yet within the last 30 years or so, the question of lawyer competence has traversed beyond a characterisation purely in terms of legal obligation into one of professional duty. For instance, under the caption ‘other fundamental ethical duties’, the Legal Profession Conduct Rules list a duty to ‘deliver legal services competently’.1 The aforementioned time frame has witnessed the rise of mandatory continuing legal education, driven in a substantial way (albeit at least partly as a risk management exercise) by a belief that a lawyer’s exposure thereto will improve (or at least sustain) competence.

Questions of competence have also entered the professional sphere via the development of statutory concepts of ‘misconduct’. The entire gist of ‘unsatisfactory professional conduct’ under statute is competence focused,2 and one limb of statutory ‘professional misconduct’ similarly targets matters of lawyer (in) competence.3 That the ‘common law’ recognised only ‘professional misconduct’ — confined to what is ‘disgraceful or dishonourable’4 — and no lesser form of actionable misconduct, meant that matters of incompetence surfaced only rarely on the disciplinary radar. This remained so even in those jurisdictions that early on adopted a broader statutory concept of misconduct.5 Yet within the professional arena there has proven little effort to probe what is meant by ‘competence’. Though pivotal to public confidence in the profession and the administration of justice, the term lacks any generally accepted meaning. One of the few attempts to identify the indicia of competence, which emanated from a 1980 American Bar Association Discussion Paper, acknowledged that competence is multi-faceted. It is

32 | BRIEF APRIL 2020

A more recent phenomenon, though, surrounds the impact competence-wise of perhaps the principal hallmark of twenty-first century society, the rise of technology. There is no question that this phenomenon has impacted upon law practice, which relies heavily on communicating, disseminating, storing and accessing information.8 What has been acknowledged, to this end, is that lawyers may require skill development to capitalise on the advantages and guard against the drawbacks of (emerging) technology.9 It is perhaps no surprise, then, that the American Bar Association in 2012 amended its professional rules to make explicit that ‘a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology’.10 Late 2019 saw the Federation of Law Societies of Canada pursue the same initiative, placing under the competence umbrella an expectation that lawyers will ‘develop an understanding of, and ability to use, technology relevant to the nature and area of [their] practice and responsibilities’.11 In so doing, beyond highlighting that the appropriate use of technology is now a core aspect of legal practice, the rules raise the spectre of professional liability for failure by law practices to properly engage therein. In an increasingly globalised legal market, Australian lawyers will hardly prove immune.

NOTES: 1 2 3 4 5 6 7

8 9 10 11

Legal Profession Conduct Rules 2010 (WA) r 6(1)(c).

Legal Profession Act 2008 (WA) s 402.

Ibid s 403(1)(a).

Pursuant to the formulation espoused in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750.

See G E Dal Pont, Lawyer Discipline, LexisNexis Butterworths, 2020, pp 31–33.

ABA-ALI Committee on Continuing Professional Education Model Peer Review System 11 (Discussion Draft, 15 April 1980).

A leading statement is that of the Full Federal Court in Yates Property Corporation v Boland (1998) 85 FCR 84 at 105 (revd on appeal but without casting doubt on this point: Boland v Yates Property Corp Pty Ltd (1999) 167 ALR 575).

See R Susskind, Tomorrow’s Lawyers: An Introduction to Your Future, 2nd ed, OUP, 2017.

See, for example, M Legg, ‘New Skills for Lawyers: Responding to Technology and Practice Developments’ [2018] UNSWLRS 51.

Model Rules of Professional Conduct, r 1.1, cmt [8].

Model Code of Professional Conduct, r 3.1-2, cmt [4A].

WA Case Notes

By Monica Choi

Tulloh v Chief Executive Officer of the Department of Corrective Services The Court of Appeal (WA) granted leave to appeal against the decision of Le Miere J in Tulloh v Chief Executive Officer of the Department of Corrective Services (primary decision) given the complexity of the statutory scheme and the potential wider significance of the matters in dispute. The primary proceedings concerned a claim for false imprisonment by the appellant (Mr Tulloh) against the first respondent (the CEO of the Department of Corrective Services) and the second respondent (the State) arising from his incarceration following a decision to cancel his parole, with Le Miere J finding that the detention of Mr Tulloh was done with lawful authority. The decision of Murphy, Beech and Pritchard JA found that his Honour’s conclusion was correct and the appeal was dismissed.

By a sentence on 13 December 2002, backdated to commence on 9 December 2002, Mr Tulloh was sentenced to a 15 year term of imprisonment following a conviction for possession of methamphetamine with intent to sell or supply. Due to legislative provisions applicable at the time, Mr Tulloh was entitled to a one-third remission, for his sentence so that he would serve 10 years (to 8 December 2012) of the 15 year sentence if he successfully completed two years on parole after eight years in Custody.

Mr Tulloh commenced his two year parole on 8 December 2010, but on 4 September 2012 the Board made a cancellation order after a urine analysis tested positive for Methylamphetamine.

On 14 July 2014 Chaney J quashed the Board’s cancellation order and remitted the matter to the Board to reconsider its decision. Mr Tulloh remained in prison until he was granted a writ of habeas corpus by Chaney J on 22 September 2014. This appeal was from Le Miere J’s decision on the preliminary question “Was the detention of [Mr Tulloh] by the [CEO] between 8 December 2012

and 4 July 2014 done without lawful authority?” This was in relation to a claim from Mr Tulloh seeking damages for the tort of wrongful imprisonment.

Le Miere J held that “the detention of [Mr Tulloh] by the [CEO] between 8 December 2012 and 4 July 2014 was done with lawful authority.”

If parole was granted, Mr Tulloh would spend two years on parole after eight years in custody so that he would be released after 10 years from the time of this sentencing. The principle issue was, whether the CEO had lawful authority to detain Mr Tulloh prior to the Board’s Cancellation Order being quashed.

According to Le Miere J’s findings, the BCO was effective until it was quashed.

The only ground of appeal relied on was Ground 2, which in effect alleged that the judge misconstrued the Sentence Administration Act 2003 (WA) (SA Act 2003) and Mr Tulloh’s detention by the CEO from 8 December 2012 to 4 July 2014 was nevertheless unlawful.

Section 71 of the SA Act 1995 concerns the effect of a cancellation order in connection with the service of a term of imprisonment. In particular, it notes that if an early release order in respect of a prisoner serving a fixed term is cancelled after the prisoner is released under the order, the prisoner is then liable to resume serving the fixed term in custody and is not entitled to be released until he or she has served the whole of that term.

The essence of the dispute between the parties were in Mr Tulloh’s arguments that the effect of the Board’s cancellation order being quashed was that it had no legal effect and was void ab initio and under the Sentencing Act 1995 (WA) (SA Act 1995) Mr Tulloh was entitled to be released on 8 December 2012. Alternatively, even if the cancellation order was not a nullity and void ab initio, “cancelled” in s 71(1) meant validly cancelled and as his parole was not validly cancelled, s 71(1) of the SA Act 1995 did not make him liable to serve the whole of his fixed

term and he was entitled to be released on 8 December 2012.

Mr Tulloh submitted that it was an essential element of his case on appeal that on a proper construction of a s.71(a) of the SA Act 1995, the word ‘cancelled’ meant ‘validly cancelled’ and should be construed effectively for the reasons that: Section 71 (1) of the SA Act 1995 must be read in the context that it is ‘dealing with a question of someone’s liberty’, to construe it otherwise would lead to an absurd or unjust result and other sections of the SA Act 1995 support such a reading.

The respondents submitted that the judge identified and construed the statutory framework correctly.

The Court found that the correct construction was that “cancelled” referred to the factual event of cancellation and not requiring consideration of the more complex issue of whether there is a valid cancellation, and the Court agreed with Le Miere J, finding he was correct, effectively for the reasons he gave. These were that the SA Act indicates that an invalid cancellation order is not “utterly without existence or effect in law”. Second, the statutory framework indicates an intention for the cancellation order to be relied on and acted on by persons other than the board and parliament would not require a CEO to inquire and be satisfied that the cancellation order was legally valid before acting on it. Third, the act of a CEO in detaining a prisoner after the making of a cancellation order subsequently declared to be invalid is an administrative act and a prisoner may test the legal validity of that act through the SA Act 2003 which indicates the legal validity of the order is not a precondition to the validity of the acts of the CEO in reliance upon it.

Read the full judgment at https://bit. ly/3aJgyoF.

33

WA Case Notes

By Larissa Welmans, Associate, Clifford Chance

Coley v Danae [2020] WASCA 13 Introduction The appellant, Ms Coley, appealed from final property orders made by the Family Court of Western Australia, pursuant to Family Court Act 1997 (WA) (the Act) s 205ZG. Those property orders altered the parties’ interests in their net property, as de facto partners, to arrive at a distribution of 47.5% to the appellant and of 52.5% to the respondent. The Court of Appeal unanimously allowed the appeal, holding that the trial judge’s erroneous treatment of two assets was likely to have affected the exercise of the trial judge’s discretion to so alter the parties’ property interests. A retrial was ordered because, in the circumstances, the Court of Appeal was not in a position to properly reexercise the discretion. As the respondent had already made payments pursuant to the trial judge’s orders, restitution was ordered; however, its execution was suspended pending the determination of the retrial.

Background The appellant and respondent were de facto partners who engaged in a relationship between 2003 and 2012. In the Family Court, the trial judge exercised the discretion in s 205ZG to make the final property orders having concluded, in accordance with subsection (3), it ‘just and equitable’ to do so. In reaching this conclusion, her Honour reasoned so as to determine: 1. ‘the property of the de facto partners’, within the meaning of s 205ZG(1) of the Act, to be $5,736,024, including both: a. the appellant’s $638,911 superannuation fund (the Fund), as ‘property’ of the appellant; and b. 50% of a family discretionary trust of which the respondent and his sister were the primary beneficiaries (the Trust) with $3,948,138 in net assets, as ‘property’ of the respondent; 34 | BRIEF APRIL 2020

2. the global ‘contribution’ to the ‘property of the de facto partners’, for the purposes of s 205ZG(4) (a) and (b) of the Act, to be 40% by the appellant and 60% by the respondent; and 3. that an adjustment of 7.5% in favour of the appellant was appropriate, having had regard to additional matters in s 205ZG(4) of the Act, including (by s 205ZG(4)(e) and s 205ZD(3)(b)) the ‘financial resources’ of each party.

On appeal, the appellant sought greater relief, contending, inter alia, that the net ‘property’ of the parties was incorrectly determined in that it: 1. should not have included the Fund; and 2. should have included the whole, rather than 50%, of the Trust.

Key findings Much of the appeal was concerned with the Trust. The appellant’s case at trial, concerning the Trust, was primarily that it was a ‘false front’ and, regardless of the identity of its trustee(s), its assets were the respondent’s ([21], [57] - [61]). The trial judge considered and rejected this case, concluding that the Trust assets were held by the trustees of the Trust to be applied in accordance with the Trust instrument ([21], [62] - [63]). Her Honour made no express finding as to the identity of the trustees ([62]). Nevertheless, her Honour attributed 50% of the value of the Trust assets to the respondent, consistently with the respondent’s concession to that effect in closing ([12], [64]).

The Court of Appeal upheld the appeal insofar as it challenged the trial judge’s characterisation of 50% of the Trust assets as ‘property’ of the respondent.

The Court considered that no sufficient basis for accepting the respondent’s concession was identified or identifiable ([12], [65] - [66], [68]). It held that it was not enough for the trial judge to have rejected the appellant’s ‘false front’ case as to the Trust. Following Kennon v Spry [2008] HCA 56; (2008) 238 CLR

366, the Court explained that it was necessary for the trial judge to have determined whether the Trust assets could be properly characterised as the respondent’s ‘property’, by determining, at least, whether the respondent was both the sole trustee (or perhaps otherwise had de facto control over the Trust) and a beneficiary for the benefit of whom the entirety of the Trust assets could have been applied ([43], [69], [79] - [83], [92(a)], [93]). The Court clarified that, absent those circumstances, the bare equitable right of a beneficiary under a discretionary trust (such as the respondent would hold as a beneficiary under the Trust) would not, ordinarily, constitute ‘property’ for the purposes of s 205ZG ([84] - [88]). The Court further explained, however, that such a right may be materially relevant to the exercise of the discretion in s 205ZG, by subsection (4)(e), if it constitutes a ‘financial resource’ for the purposes of s 203ZD(3)(b). The Court explained that, in accordance with Hall v Hall [2016] HCA 23; (2016) 257 CLR 490, such a right may be a ‘financial resource’ where the beneficiary has a reasonable expectation of benefitting under the trust. As such, if the trial judge had determined that the Trust assets were not ‘property’, the further issue of whether, in this manner, the respondent’s right constituted a ‘financial resource’ was one which the trial judge was required to, and did not, determine ([27], [92(b)], [93]).

The Court did not uphold the respondent’s notice of contention, concerning the Trust. It rejected the respondent’s contention that the trial judge’s decision could be supported on the basis that the respondent was the joint trustee of the Trust with his sister, who was not under his control. There was insufficient evidence adduced at trial to establish that the respondent and his sister were joint trustees; the Court did not consider it in the interests of justice to grant the respondent’s application to admit further evidence critical to this issue, including a deed of variation and rectification of the Trust, appointing the respondent’s sister as an additional trustee ([47] - [55], [95], [100] - [112]).

The Court also rejected the respondent’s further contention that his right, as

beneficiary, to due administration of the Trust accounted for his 50% interest in the net value of the Trust; this was not a part of the cases run below and the value of a right to due administration cannot be equated with the assets of the trust ([86] [87], [96] - [99]).

In respect of the Fund, the trial judge found that it constituted ‘property’ of the appellant, apparently, on the basis that she could access her superannuation entitlements because she was over 55 years old ([126], [133]). The Court of Appeal held that the trial judge erred in so finding. It explained that, according to the Superannuation Industry (Supervision) Regulations 1994 (Cth), while, due to her age, the appellant had some entitlements, the extent of those entitlements had not been explored, making it unclear whether she would suffer any detriment in accessing the Fund; there remained restrictions on the appellant’s access to the Fund because she had not, yet, retired ([139] - [140]). The Court did not accept the respondent’s argument that exclusion of the Fund as ‘property’ would have made no difference to the outcome because the appellant’s ‘contribution’ would have decreased proportionally and the Fund would still have been taken into account as a ‘financial resource’. It held that there was no basis to assume that there would have been no overall change to the distribution between the parties; rather, inclusion of the Fund as ‘property’ was apt to skew the overall result of the exercise of the trial judge’s discretion in favour of the respondent because: 1. The trial judge assessed the appellant’s ‘contribution’ as (considerably) greater (at 40%) than that attributable to assets held by her in her name (approximately 21%).

2. The Fund accounted for more than half of the assets attributed to the appellant, which were otherwise relatively small.

3. By contrast to the Fund, the trial judge treated the respondent’s superannuation fund as a ‘financial resource’ rather than ‘property’; this tended to overstate the appellant’s property and understate the respondent’s property.

4. The adjustment factors under s 205ZD(3), including consideration of the respondent’s superannuation fund as a ‘financial resource’, clearly had a less significant impact (of 7.5%) upon the overall exercise of the trial judge’s discretion than the assessment of the parties’ ‘contributions’ (40%/60% split).

5. The trial judge referred to the appellant’s superannuation entitlements in arriving at the 7.5% adjustment and, therefore, arguably took the Fund into account both as ‘property’ and a ‘financial resource’ of the appellant ([143] - [151]).

Finding that it was not in a position to re-exercise the discretion under s 205ZG of the Act, as to the ‘just and equitable’ alteration of the parties’ property interests, the Court of Appeal considered the appropriate order to be for a retrial ([14], [109] - [111], [113] - [116], [152], [158]). In addition, it was necessary for the Court to determine further issues arising from the trial judge’s orders having already been carried into effect, by the respondent’s payment of $2,109,537.55 to the appellant ([159] - [164]). The Court rejected the respondent’s submission that this prevented the appellant, by the doctrine of approbation and reprobation and of election, from exercising her right to appeal the trial judge’s decision.

The Court applied the principle from a line of authorities, following Lissenden v CAV Bosch Ltd [1940] AC 412, that an appellant who accepts payment in satisfaction of sums awarded at trial is not precluded from exercising their right of appeal, seeking further relief; this principle was applicable to the present case despite the appropriate order on appeal being for a retrial. The Court held

that the appellant had done nothing inequitable or inconsistent by pursuing the appeal, despite accepting the sums payable under the trial judge’s orders.

She had maintained that the court’s discretion, properly exercised, ought to have resulted in a greater alteration in her favour. She had made no representation that she would not prosecute the appeal nor was her acceptance of payment an unequivocal act able to support an inference that she was accepting or electing inconsistent rights ([166] - [177]). Alternatively, the respondent submitted that, should the trial judge’s orders be set aside, he was entitled to an order for restitution of the payments he had made. After reviewing competing relevant authorities on the point, the Court preferred not to decide whether the principle that restitution automatically follows from the setting aside of a judgment might not be applicable where a retrial is ordered. Instead, it preferred to preserve the status quo by ordering restitution but, being satisfied of justificatory ‘special circumstances’, also ordering suspension of its enforcement under Civil Judgments Enforcement Act 2004 (WA) s 15 pending retrial (or further order of the Family Court) ([178] - [187], [190] - [205]).

Read the full judgment at https://bit. ly/39JRWfm. 35

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

Corporations law “Best interests obligations” in Corporations Act, ss961B, 961G and 961J – lack of culture of compliance – penalties In Australian Securities & Investments Commission v AMP Financial Planning Pty Ltd (No 2) [2020] FCA 69 (5 February 2020) the Court gave its reasons for judgment concerning contraventions by AMP Financial Planning Pty Ltd (AMPFP) of the best interests obligations and related duties in ss961B, 961G and 961J of the Corporations Act 2001 (Cth) (the Act).

The Court’s judgment is highly critical of AMPFP. Lee J states at [2]: “A ‘culture of compliance’” is an amorphous concept.

But whatever it actually means, it must transcend simply putting in place expensive ‘systems’; or it must be more than persons, whose titles include terms such as ‘governance’ and ‘compliance’, declaiming platitudes. One might question the point of such structures and roles in a company, if the corporate will to do the right thing is absent. For generations, many successful financial institutions did not need ‘values statements’ setting out bromides; nor was it thought necessary to have an array of compliance executives with highfalutin titles; those responsible simply ensured their employees or representatives dealt with customers in a manner reflecting an instinctive institutional commitment to playing with a straight bat. At bottom, as I will explain, this penalty proceeding reflects a lamentable failure of corporate will to take the necessary steps to prevent greedy and unlawful conduct taking place, and a further failure to adopt a swift and proper remedial response”.

An adviser of AMPFP (Panganiban) was repeatedly engaging in a form of “churning” by, rather than advising his clients to transfer their existing cover, arranging for his clients to sign cancellation letters and then, some days later, arranging for an application for new insurance to be submitted to AMP (at [4]).

The motivation for this conduct, which exposed the clients to risks and other disadvantages, was that Panganiban 36 | BRIEF APRIL 2020

was entitled to a substantially higher commission (at [5]). In its defence filed in September 2018, AMPFP admitted contraventions of ss961B, 961G and 961J of the Act by Panganiban but not by other authorised representatives of AMPFP (at [32]). In May 2019, AMPFP also admitted contraventions of ss961B, 961G and 961J of the Act by another five authorised representatives of AMPFP (at [34]).

The Court’s judgment addresses: 1. certain factual matters, and most importantly the question of whether, as at 1 July 2013, AMPFP had reason to believe that the conduct was common (at [68]-[88]) 2. the proper construction of s961L and the number of contraventions that arose (at [89]-[141]). Section 961L provides: “A financial services licensee must take reasonable steps to ensure that representatives of the licensee comply with sections 961B, 961G, 961H and 961J”. The Court found that AMPFP engaged in six contraventions of s961L of the Act (at [140]) 3. the appropriate pecuniary penalty (at [154]-[235]). The Court held that the appropriate penalties in total were $5.175m (at [234]) 4. the appropriateness of aspects of the remediation plan and compliance plan under s1101B of the Act (at [236]-[262]).

Human rights and antidiscrimination law Sexual harassment – whether employer took all reasonable steps to prevent sexual harassment – whether judgment unsafe because of six-year delay between trial and judgment In Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) [2020] FCAFC 13 (20 February 2020) the Full Court allowed the appeal.

The Federal Circuit Court judge upheld an allegation of sexual harassment against one employee (Mr Urquhart) of the employer (Boral), but dismissed the claims against Boral for vicarious liability and the claims against a second

employee of Boral. The Full Court’s judgment commenced noting that a “startling feature” of the appeal is that the judgment was delivered more than six years after the trial and delivery of final submissions (at [1]).

The Full Court held that the primary judge erred in finding that Boral was not variously liable for the sexual harassment by Mr Urquhart which was proven (at [50]-[89]). Section 106 of the Sex Discrimination Act 1984 (Cth) (SDA) provides for vicarious liability. The effect of s106(2) of the SDA is that an employer or principal to whom s106(1) applies will not be liable for the act of unlawful discrimination or sexual harassment if the employer or principal establishes that it took “all reasonable steps” to prevent its employee or agent from doing the relevant act (at [60]). The Court noted that it is common for employers to seek to establish that they took all reasonable steps to prevent an employee from doing the unlawful act by relying on policies published and training provided in the workplace (at [65]) and that is what Boral sought to do in this case (at [67]). After reviewing the evidence of the policies and training, Flick, Robertson and Rangiah JJ stated at [81]: “The paucity of evidence as to the steps actually taken to convey the seriousness and consequences of sexual harassment to employees, including Mr Urquhart, leads to the conclusion that Boral failed to establish that it took all reasonable steps to prevent Mr Urquhart from engaging in the sexual harassment”. Accordingly, the defence under s106(2) of the SDA failed and Boral was liable under s106(1) for the sexual harassment perpetrated by Mr Urquhart (at [88]).

The Full Court also set aside the orders of the Federal Circuit Court dismissing the appellant’s other claims under the SDA. The six-year delay in the delivery of judgment was described by the Full Court as “extraordinary and deplorable” as well as being “explained” (at [92]).

Having said that, the Judges discussed the authorities showing that the circumstances in which delay of itself vitiates a judgment are rare (at [93][96]). However, the appeal succeeded in the present circumstances. Flick, Robertson and Rangiah JJ explained

at [113]: “The primary judge’s delay created requirements in respect of the reasons that would not ordinarily apply.

It was incumbent upon his Honour to inform the parties of the reasons why the evidence of particular witnesses had been accepted or rejected and to say why the evidence of one witness had been preferred over the evidence of other witnesses. The primary judge was also required to explain how, despite the delay, he was able to recollect the oral testimony and demeanour of witnesses in order to demonstrate that delay did not affect his decision. The reasons do not meet these requirements. In addition, the reasons expose examples of the primary judge appearing to skirt more difficult issues and driving toward simple conclusions. Further, some aspects of his Honour’s reasoning reveal a lack of clarity which suggest that the delay has affected the decision. In addition, his Honour overlooked issues that had been squarely raised in the case. The reasons demonstrate that the primary judge was unable to satisfactorily determine the case six years after hearing the evidence.

It must be concluded that the judgment is unsafe”. The matter was remitted to be heard and determined by a different judge (at [118]).

Representative proceedings Approval of settlement under s33V of the Federal Court of Australia Act 1976 (Cth) and Division 9.2 and Rule 9.70 of the Federal Court Rules 2011 (Cth) – dispensing with requirement to fix an opt out date In Sister Marie Brigid Arthur (Litigation Representative) v Northern Territory of Australia (No 2) [2020] FCA 215 (26 February 2020) the Court approved the settlement of a representative proceeding for children in detention in the Don Dale Youth Detention Centre and the Alice Springs Youth Detention Centre. The stated objective of the proceeding was the improvement of conditions in youth detention in the Northern Territory. Only public law relief (declarations, injunctions, a writ of mandamus and other orders) was sought and the case did not include claims for damages or compensation (at [3]). The settlement involved terms of the Northern Territory’s Statement of Commitments (annexed to the judgment) being negotiated between the parties and the applicant sought and obtained improvements in the proposed government initiatives (at [7];

also [63]-[68]). To the extent it was a proceeding instituted under Part IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act), settlement approval was given under s33V of the FCA Act. The proceeding was also an “old-style” representative proceeding under Division 9.2 of the Federal Court Rules 2011 (Cth) and the Court approached settlement of the Division 9.2 proceeding on the same basis as the Part IVA case (at [71]-[79]).

The Court’s judgment also included reasons why it was appropriate to dispense with the requirement for the Court to fix a date for opt out (at [42][62]). Murphy J said at [58]: “In my view, in cases where no damages claim is made I consider s33ZF provides a source of power to dispense with the requirement to fix an opt out date”.

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.

37

HIGH COURT JUDGMENTS David Kelsey-Sugg Castan Chambers, Melbourne

Criminal practice Directions to jury – Liberato direction De Silva v The Queen [2019] HCA 48 (13 December 2019) concerned the adequacy of directions given to the jury in a criminal trial. The trial judge had not been asked to give, and did not give, a direction along the lines of the direction proposed by Brennan J in Liberato v The Queen (1985) 159 CLR 507 at 515 (a “Liberato direction”). Such a direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt.

The appellant, Mr De Silva, had been arraigned in the District Court of Queensland on an indictment that charged him with two counts of rape.

The prosecution case on each count was dependent on acceptance of the complainant’s evidence. Mr De Silva did not give, or call, evidence. A recorded interview between him and the police, in which he provided exculpatory answers, was in evidence in the prosecution case.

The jury ultimately returned verdicts of not guilty on the first count and guilty on the second count.

Mr De Silva’s case in the High Court was that it is prudent to give a Liberato direction in most, if not all, cases in which there is evidence of the conflicting defence account of material events. He complained that the instructions given to the jury at his trial by the trial judge were flawed in several respects, including that the instructions: were generic and not adapted to the circumstances of the case; did not ensure that the jury understood that a preference for the evidence of the complainant did not preclude a verdict of not guilty; and did not make clear that disbelieving the appellant’s version of events was no bar to a verdict of not guilty.

The High Court said that while it may, in some cases, be appropriate to give a Liberato direction notwithstanding that the accused’s conflicting version of

38 | BRIEF APRIL 2020

events is not before the jury on oath, this was not such a case. The trial judge’s summing-up made clear the necessity that the jury be satisfied beyond reasonable doubt of the complainant’s reliability and credibility. The Court of Appeal had not erred in concluding that, when the summing-up is read as a whole, the trial did not miscarry by reason of the omission of a Liberato direction.

Kiefel CJ, Bell, Gageler and Gordon JJ jointly. Nettle J dissenting. Appeal from the Supreme Court of Queensland dismissed.

Immigration Representative proceedings – application for remitter DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth of Australia [2019] HCA 47 (6 December 2019) was an application for an order, by consent, that a representative proceeding instituted in the original jurisdiction of the High Court be remitted to the Federal Court of Australia pursuant to s44(2A) of the Judiciary Act 1903 (Cth). The claim in the representative proceeding was for damages for false imprisonment arising from the allegedly unlawful detention of the plaintiff and each other group member. The plaintiff claimed that he and each other group member were purportedly detained under ss189 and 196 of the Migration Act 1958 (Cth) in circumstances which did not conform to the requirements of those provisions.

Bankruptcy Vesting of property held by a bankrupt on trust for another Boensch v Pascoe [2019] HCA 49 (13 December 2019) was an appeal from a judgment of the Full Court of the Federal Court of Australia dismissing an appeal from the decision of the Supreme Court of New South Wales that the respondent, Mr Pascoe, did not act without “reasonable cause” within the meaning of s74P(1) of the Real Property Act 1900 (NSW) in lodging and not withdrawing a caveat against dealings over land in respect of which the appellant, Mr Boensch, was the registered proprietor of an estate in fee simple (“the Rydalmere property”).

Mr Boensch was granted special leave to appeal to the High Court because the appeal raised a question of principle of general importance as to whether property held by a bankrupt on trust for another vests in the bankrupt’s trustee in bankruptcy pursuant to s58 of the Bankruptcy Act 1996 (Cth).

The High Court’s answer to that question was that provided the bankrupt had a valid beneficial interest in the trust property, the trust property will vest in the trustee in bankruptcy subject to the equities to which it is subject in the hands of the bankrupt. For those purposes, a valid beneficial interest meant a vested or (subject to applicable laws as to remoteness of vesting) contingent right or power to obtain some personal benefit from the trust property.

The application for remitter was listed for hearing in the High Court because, at first sight, it appeared that s476B of the Migration Act might have precluded the High Court from remitting the proceeding to the Federal Court or that s486B(4) of that Act might render the proceeding incompetent in its present form. Ultimately, the High Court did not consider that s476B of the Migration Act prohibited it from remitting the matter to the Federal Court or that s486B rendered the proceeding incompetent in its present form.

There was no reason to doubt that, on the making of a sequestration order, the Rydalmere property vested in equity in Mr Pascoe by reason of Mr Boensch’s right of indemnity and, therefore, that Mr Pascoe had a caveatable interest in the property. Nor was there any reason to doubt that Mr Pascoe honestly believed on reasonable grounds that the property so vested, either on the basis that the trust was void or on the basis of Mr Boensch’s right of indemnity. On the facts as found, Mr Pascoe did not lodge or refuse to withdraw the caveat without reasonable cause.

Nettle J. Matter remitted to the Federal Court of Australia.

Kiefel CJ, Gageler and Keane JJ jointly.

Bell, Nettle, Gordon and Edelman JJ

jointly concurring. Appeal from the Full Court of the Federal Court of Australia dismissed.

Immigration Immigration Assessment Authority – apprehended bias CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 (13 December 2019) was an appeal from a decision of the Full Court of the Federal Court concerning a problem that had arisen in the administration of Pt 7AA of the Migration Act 1958 (Cth).

A delegate of the first respondent refused the appellant’s application for a protection visa. That decision was referred to the Immigration Assessment Authority (“the IAA”) for review under Pt 7AA of the Act. The Secretary of the Department was required to give the IAA certain material in the Secretary’s possession or control. The IAA had to

review the decision “by considering the review material provided to [it]” by the Secretary, without accepting or requesting new information, and without interviewing the appellant.

Unbeknown to the appellant, the Secretary gave the IAA material which was not only irrelevant but prejudicial to him. The question for the High Court was whether a hypothetical fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the IAA might not bring an impartial mind to the decision before it as a result of that information being given to it.

The High Court by majority answered that question in the affirmative. A fair-minded lay observer might have apprehended that the IAA might not have brought an impartial mind to the review, by reason of the irrelevant and prejudicial material which the IAA was mandated to consider. The material might have led the decision-maker to make a

decision otherwise than on the legal and factual merits of the case because it might have led the decision-maker to the view that the appellant was not the sort of person who should be granted a visa or that he was not a person who should be believed. A fair-minded lay observer might have apprehended that this might have had an effect on the decision-maker, even if that effect was subconscious.

Nettle and Gordon JJ jointly. Edelman J separately concurring. Kiefel CJ and Gageler J jointly dissenting. Appeal from the Full Court of the Federal Court of Australia allowed.

David Kelsey-Sugg is a Victorian barrister, ph (03) 9225 6286, email dkelseysugg@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au.

39

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

Children – Child abduction – Mother repudiated agreement for family’s temporary stay in Australia In Handbury & State Central Authority and Anor [2020] FamCAFC 5 (21 January 2020) Full Court (Alstergren CJ, Strickland and Williams JJ) dismissed the mother’s appeal of Bennett J’s order sought by the State Central Authority (“SCA”) that the parties’ six year old child be returned from Melbourne pursuant to Regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) to the United Kingdom, being the child’s place of habitual residence, accompanied by the father.

The mother was born in Australia but began living with the father in the UK in 2005. Their child was born there in 2013. When the mother was offered temporary work in Australia the family came here in 2017. Bennett J found that the child was a habitual resident of the UK; that the parties had agreed to live temporarily here for two years; and that the mother repudiated that agreement in 2018 when telling the father that she did not want to return to the UK with the child.

The Full Court ([47]-[48]) adopted the following statement of principle by the UK Supreme Court as applying to the present case: “When the left-behind parent agrees to the child travelling abroad, he is exercising, not abandoning, his rights of custody. … It is not accurate to say that he gives up a right to veto the child’s movements abroad; he exercises that right by permitting such movement 40 | BRIEF APRIL 2020

on terms. He has agreed to the travel only on terms that the stay is to be temporary and the child will be returned as agreed. So long as the travelling parent honours the temporary nature of the stay abroad, he is not infringing the left-behind parent’s rights of custody. But once he repudiates the agreement, and keeps the child without the intention to return, and denying the temporary nature of the stay, his retention is no longer on the terms agreed.

It amounts to a … unilateral decision where the child shall live. It repudiates the rights of custody of the leftbehind parent, and becomes wrongful.”

Children – Interim order that father spend no time with child set aside on appeal In Lim & Zong [2020] FamCAFC 20 (31 January 2020) Kent J (sitting in the appellate jurisdiction of the Family Court of Australia) allowed the father’s appeal against Judge Tonkin’s interim order that the father spend no time and not communicate with the child (an order not sought either by the mother or the ICL) and that he consult a clinical psychologist for preparation of a report as to “whether there was a risk to the mother and child being exposed to further family violence by the father” ([3]).

The mother alleged violence by the father which he denied, saying that the mother had historically alleged violence to disrupt his relationship with the child. A report from a family consultant who accepted the

mother’s allegations opined that the father was likely to continue to perpetrate family violence towards the mother ([31]). The father complained that he had not had an opportunity to cross-examine the report writer.

After (at [33] and [50]) citing Salah [2016] FamCA 100 (a judge at an interim hearing must for the purpose of s 60CG consider “the risk of family violence”) and SS & AH [2010] FamCAFC 13 (“findings made at an interim hearing should be couched with great circumspection”), Kent J said ([52][53]): “ … [H]ere the inescapable conclusion is that the primary judge’s decision rested upon … concluded findings of fact … So much is clear from the … order for no time or communication despite … not being sought by either parent or, importantly, by the ICL … ( … ) [T]he … judge was in error in failing to … articulate to the parties … the father in particular, and afford him the opportunity to be heard on, the prospect of … an interim order for no time or communication. Moreover, review of the transcript does not reveal the … judge having foreshadowed to the father, or calling for his submissions upon, questions about his attendance upon a clinical psychologist for the purpose of further reports. Importantly, in the manner in which those orders are framed, the determinations made by the … judge about family violence were to be taken as a given by the … psychologist … [T]he …

orders speak of ‘further’ family violence being perpetrated by the father and the orders make provision for the expert to be provided with the … judge’s reasons for judgment and the family reports, all of which express … unequivocal conclusions about the disputed issues … concerning family violence.”

Property – Wife enforces money orders against bankrupt spouse via a splitting order In Wilkinson & Kemp [2020] FCCA 69 (16 January 2020) Judge B Smith heard the wife’s enforcement application in respect of $47,912 owed to her under a property order and a costs order made in 2015. The husband declared himself bankrupt before the time for payment; and after being discharged from bankruptcy in August 2018 he declared bankruptcy again before the enforcement hearing in January 2019. The wife sought a variation of the order via a superannuation split in her favour for the amount outstanding. She relied on an email from the husband stating that he had moved assets offshore ([69]).

Noting ([40]) that the wife’s application which concerned unvested property (superannuation) did not affect the position of the Official Trustee, the Court ([46]) cited Molier & Van Wyk [1980] FamCA 85 which held that a court exercising jurisdiction under the Act has power to amend its orders “to remedy a lacuna or gap … to give effect to the … orders” by means of a “machinery provision … without affecting the substantive rights of the parties”.

The Court concluded ([75]-[77]): “The intention of the original orders was that the wife should receive a certain percentage of the total pool including superannuation.

The orders made were ineffective because the husband had unilaterally removed the … majority

of the non-superannuation assets from Australia prior to the primary hearing and then voluntarily entered bankruptcy.

If no order is made the wife will suffer a substantial injustice. I am satisfied that it is both just and equitable and also necessary to make a superannuation splitting order by way of a machinery provision amendment.

To ensure that there is no interference in the substantive rights of the parties the superannuation sums must be, as the wife seeks, in the sums originally ordered, and taking effect as at the date for payment of the original orders … to give effect to the substance and intention of the primary order.”

Children – Mother refused leave to withdraw her notice of discontinuance In Olofsson [2019] FCCA 3467 (20 December 2019) the 39 year old parties separated in 2015 when their daughter and son of 10 and 5 began living with the father.

Consent orders to that effect were made in 2016. The children were to spend alternating weekends with the mother but their relationship broke down and in 2017 and 2018 both children were seeing a psychologist (the daughter’s psychologist suggesting that her time with the mother cease; the mother, on the other hand, having a different perspective on why their relationship broke down) ([2]).

In May 2018 the mother filed a Contravention Application and in November 2018 consent orders were made for the mother’s time to be supervised. One supervised contact visit occurred ([3]). In February 2019 the mother applied for variation of the original consent order so that the children live with her. The father in his Response sought an order for psychiatric assessment and drug testing of the mother.

held, the mother filed a Notice of Discontinuance of both of her applications. In August 2019 she sought leave to withdraw her discontinuance. In doing so, she contended that the Court should revisit the findings of Laramie & Caul [2018] FCCA 1371 on the ground that the principle of finality of proceedings set out in that case – being a financial case – should not apply in parenting cases as such an approach would fetter the Court’s broad discretion to make an order that is in the best interests of children.

In refusing the leave sought, Judge Altobelli said (from [31]): “ … [T]here must be doubts about the applicability of the finality principle discussed [by the Federal Court of Australia] in Chen [Chen v Monash University [2016] FCAFC 66] in a parenting proceeding, which is so fundamentally different in nature from, for example, administrative law proceedings or, indeed, civil litigation generally.

[32] Against this, however, must be the recognition that the finality principle has been applied by the High Court in a family law appellate context [citing DJL v The Central Authority [2000] HCA 17] ( … ) [52] The Court believes that as a matter of judicial comity it should follow the decision of Judge Jarrett in Laramie & Caul. Whilst the Court has some reservations about the decision, it is not plainly wrong.”

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

In May 2019, before a child inclusive conference could be 41

Law Council Update Appointment of Law Council Chief Executive Officer The Law Council of Australia is pleased to announce the appointment of Michael Tidball as its new Chief Executive Officer.

Mr Tidball currently serves as the Chief Executive Officer of the Law Society of NSW, a position he has held for nearly 14 years.

In announcing Mr Tidball’s appointment, Law Council of Australia President, Pauline Wright, said she is delighted to have secured a candidate of such high calibre to lead the Law Council into the next decade.

“Having undertaken an extensive global recruitment for a new CEO, I am thrilled that we have secured the most experienced, serving legal association chief executive in the Southern Hemisphere,” Ms Wright said.

“The Law Society of NSW is, even by international standards, a legal professional association of considerable scale with a diverse and complex suite of regulatory and membership functions.

“In Michael, we have a CEO who is highly regarded internationally with the demonstrated ability to deliver organisational strategy, high-order people management and stakeholder engagement as well as intellectual leadership and strength.

“Throughout his career, including in his current role as the longest-serving CEO of the Law Society of NSW and, in recent years, as SecretaryGeneral of LAWASIA, Michael has worked comprehensively within the Australian and Asian legal and political systems and is well-acquainted with the processes of legislative and parliamentary advocacy, negotiation and representation across the political spectrum.

“Importantly, in each of these roles, Michael has worked closely and collaboratively with every level of the

42 | BRIEF APRIL 2020

Law Council, developed trusted and well-established relationships with law societies and bars across the nation and has developed broader interface networks with judicial heads in state, Commonwealth and international court systems.

“During his tenure at the Law Society of NSW, Michael has demonstrated a level of tenacity, and strategic vision to work through issues within an intellectual context of change and diversity of opinion that is second to none. “On behalf of the Law Council of Australia, I congratulate Michael on his well-deserved appointment,” Ms Wright said.

Michael Tidball will take up his new position at the Law Council of Australia on 1 July 2020.

Mr Tidball said he was excited about stepping into the role of CEO at the Law Council and enhancing its strength and stature as Australia’s peak legal body.

“I am looking forward to working closely and effectively with the elected leadership of the Law Council and with bar associations and law societies across the Australian Federation, and providing the Law Council with the strategic execution, stability and unity it requires to be the strongest, most effective organisation it can be, for the benefit of all Australian lawyers and the communities they serve,” Mr Tidball said.

Contingency fees opposed by Law Council Enabling lawyers to hold a direct financial interest in the outcome of their client’s case creates a serious risk of compromising a practitioner’s fundamental ethical obligations to the court and their clients, the Law Council of Australia has warned.

At a recent board meeting of the Law Council, directors resolved to oppose contingency fees as a matter of principle.

At the meeting a fundamental concern was expressed that contingency fees could not be introduced without adversely affecting litigants’ interests and lawyers’ ethical duties.

“I am a passionate advocate of promoting access to justice, but I do not accept that contingency fees will promote that objective,” Law Council President Pauline Wright said.

“Should any government in Australia propose any contingency fee arrangements, the Law Council will have to carefully consider that proposal as against all the legal profession’s fundamental obligations.”

The motion followed consideration by the Victorian Government to allow plaintiff lawyers to claim a percentage of the amount recovered in a successful group claim as their costs payable in the proceeding. It was considered that the model proposed could create a conflict of interest between the solicitor and the client, requiring solicitors to run the risk of adverse costs orders and security for costs.

“In most jurisdictions in Australia a ‘no win – no fee’ arrangement is available that enables civil claims matters to be taken on for clients without deep pockets and matters that merit litigation in the public interest,” Ms Wright said.

“Public interest cases would not benefit from the introduction of percentage-based fee agreements, and neither would low income matters.”

“Percentage-based fee agreements would only benefit large law firms that are already billing via conditional fee arrangements – generating a higher premium with no commensurate increase in risk,” Ms Wright said.

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

Your Dog has thoroughly enjoyed reading “Silencing the Sovereign People” by the Hon PA Keane delivered at the Spigelman Public Law Oration, in which he considers the US Constitution and its opening words “We the People”, and the textual foundation for the Constitution Act 1900 (Imp). Keane describes the contortions and gymnastics that surround interpretation of the Second Amendment “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”.

Mindful of the saying “Quis custodiet Ipsos custodes” which underlies much of our legal theory, your Dog was intrigued to read the submissions of Professor Alan Dershowitz in the recent impeachment proceedings in the US Senate, where he said: “Every public official that I know believes that his election is in the public interest and mostly you’re right, your election is in the public interest. And if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”

Your Dog reckons if there is wider acceptance of that principle there would be little to choose between socalled democratic systems of government and totalitarian systems, which have a record of their own.

In Brief February 2020 Christopher Zelestis QC mentioned a cocktail party at Chambers to mark the adoption of Sir Francis Burt’s name, where His Honour remarked that he had only recently ended his subscription to the Australian Journal Law Reports because he could no longer understand the judgments of the High Court. Your Dog felt much the same way in reading the High Court decision in the matters of Love v The Commonwealth of Australia and Thoms v The Commonwealth of Australia [2020] HCA 3 regarding the plaintiffs’ argument that the power to make laws with respect to naturalization and aliens under s 51(xix) of The Constitution did not apply to a person not being a citizen of Australia, but a citizen of another country, who is not naturalised as an Australian citizen but who is an Aboriginal person – a so-called non-citizen non-alien. And what will follow? More legislation, and more regulation!

Your Dog was humbled to read the report of Tim Allard of the Australian Wildlife Conservancy regarding actions it has taken since the bushfires: Mr Allard writes: “South Australia's Kangaroo Island is home to a unique species of Dunnart (a small carnivorous marsupial related to quolls and Antechinus). Even

before the bushfires the Kangaroo Island Dunnart was rare: it had only been recorded at eight sites in the past two decades, and fewer than 500 individuals remained. The entire known range of the species was affected by large bushfires in the first few weeks of January, resulting in a catastrophic loss of habitat.

Following the fire, AWC provided camera traps and survey equipment to assess the damage to the Dunnart population. Encouragingly, some Dunnarts survived the blaze and AWC is now working with Kangaroo Island Land for Wildlife and the Doube family to protect the surviving animals which are now among the most endangered mammals in the country.

Time is of the essence. With little shelter to hide, feral cats pose an immediate threat to the remaining Dunnarts ... and already these lethal predators are moving in, hunting along the fire scars for surviving wildlife. AWC's expert cat trapper, Murray Schofield, is on the ground leading efforts to control predators in the fire-affected area. At the time of writing, five feral cats have already been removed.

The Australian Army has provided crucial support by clearing a 1.7-kilometre easement so we can construct a feral-proof fence and secure 13.8 hectares of remnant habitat where Dunnarts have been detected post-fire. The fencing contractor arrived on the island on Wednesday and construction is now well underway. Once the population is secured, work will commence on a larger fenced area (at least 370 hectares) to provide a long-term safe haven for this critically endangered mammal. This will also offer protection to other threatened wildlife including Southern Brown Bandicoots, Southern Emu Wrens and Kangaroo Island Echidnas. AWC is proud to help.

Thanks to your support, we can bring to bear decades of experience in conservation fence construction and feral animal eradication to help save these threatened species from extinction.”

As Mr Allard also wrote, the bushfires have heightened the need for intervention to secure the future of Australia’s wildlife across the country. It is surprising to your Dog that there continues to be resistance to acknowledging the effect of climate change on the country, and the need to take steps to try to reduce and counter the accelerating impact it has had and will continue to have on the country and the oceans which surround it.

43

The Tale of the School that Disappeared

By John McKechnie QC

Woodbridge is an integral part of Western Australian history. The land at Guildford was cultivated by Captain James Stirling, first Governor of the Colony.

In 1883 Charles Harper purchased the land and built Woodbridge House, now a national trust property. In 1895 he started a school for his family and other local children until the Church of England took over his efforts in what is today Guildford Grammar School.

In 1921 the Proprietary Schools of Western Australia Ltd leased the Woodbridge for a school and this is when our tale begins.

Woodbridge House School was established by Cecil Clement Priestly, universally known as ‘Pre’, and his wife Ruth with the backing of Canon Henn.

The boarding school, never more that 30 or 40 boys, and often run at a loss, was a preparatory school, preparing boys for the navy and secondary school scholarships. During the depression Mr Priestly kept the school going in the face of enormous difficulties but no boy was sent home because his parents could not meet the fees and Mrs Priestly juggled the accounts.

Sport was important – cricket and football. Woodbridge had the only boys’ hockey team. As a result, the boys’ team played against girls from Presbyterian Ladies College and Perth College.

The annual father versus son cricket matches had an extra twist. The fathers had to use pick handles instead of bats with rather bewildering results.

Woodbridge school produced many leaders and scholars for its small size. One was FTP Burt, ‘Red’ to all and Chief Justice and Governor. Another was WP Pidgeon – Bill – later Supreme Court Judge.

At some point, a small cloud, perhaps unnoticed at the time, flitted across the sunny school. The Crown became the freehold owner of Woodbridge House and the surrounding farm land.

The school colour was red and taught the classics, Latin, French, arithmetic, algebra, geometry, English, history, geography, grammar and divinity.

The days started at 7am and concluded at 7.45pm with prayers. Many of the boys slept on the verandah, summer and winter. Woodbridge was partly self-sufficient and the boys were expected to help collecting eggs, milking cows and picking fruit – lots of it. As noted in the first edition of The Phoenix, the school magazine: "Peaches raw, peaches in pie, peaches in jam, peaches stewed. Yes we had them again this year. How horrible peach jam is and now it is figs! Even the pigs are going on strike."

Woodbridge school had been in existence for 20 years when an event of cataclysmic importance shattered the world. On 7 December 1941, a day that will live in infamy, Japan bombed Pearl Harbour and war was declared.

Nor was this a far-off threat. By February 1942 the Japanese

44 | BRIEF MARCH 2020

army had advanced down the Malayan peninsula. Singapore fell on 15 February 1942. Was Australia to be next?

In Western Australia, preparations for war were frantic.

Fremantle's significance as a port and submarine base was recognised. Clearly there would be an influx of service men and women who needed housing. Command centres were required.

In the middle of Fremantle sat a graceful large building that had been a lunatic asylum but now was an old woman's home. It was also in need of repair. Bureaucratic brains set to pondering and decided to transfer the occupants to… Woodbridge House.

And so it was that just a week before the start of first term in 1942, out of the blue, Mr Priestly received a notice of eviction. It was not pleasant.

Subsequently Justice Dwyer described it: "I think I am justified in saying that re-entry was not made in a manner which should be imitated by the Crown or its servants in the future."

"It may be that occasionally a letter was not couched in the politest of terms, but that is a habit which seems to have grown in public departments of recent years; courtesy in correspondence is seemingly now thought undesirable."

The school was closed, the furniture sold, the staff dismissed, the boys dispersed. Red Burt went to Guildford Grammar School. Bill Pidgeon followed Pre to Scotch College. Pre was employed as a sports master at Scotch retiring in 1952 and passing away in 1955.

The old women moved in as the young boys moved out.

Mr and Mrs Priestly sued the Crown by way of the ancient remedy of Petition of Right. They were partially successful.

The Crown's entry was wrongful as the tenant was entitled to six months' notice ending with the tenancy year. As the Crown's actions were taken in times of stress and its requirements were urgent, exemplary damages were not awarded.

The Priestlys, or to be accurate the Preparatory Schools Company, recovered damages for loss incurred on the sale of furniture and for compensation for staff. But as Dwyer J found that any goodwill attached to Mr Priestly in person, not the company, no damages were awarded for this aspect of the claim.

And so a school that had weathered good times and challenging times, led by a kindly man and his wife, just disappeared, the bright red caps and straw boaters with red ribbon, never to be seen again.

Adapted from The Proprietary Schools of Western Australia Ltd v The Crown (1944) 46 WALR 37. Grateful acknowledgment to the Battye library and "A brief history of Woodbridge House School East Guildford 1921-1941".

45

Professional Announcements Career moves and changes in the profession

HHG Legal Group HHG Legal Group has proudly welcomed Richard Crane (Special Counsel) and Sue Holgate (Senior Associate), two highly experienced family lawyers to look after our Joondalup and Mandurah practices, whilst another of the team’s rising stars, Erin Papalia, was promoted.

Richard brings over 20 years’ legal experience in family and de facto law and litigation and a strong commitment to delivering his clients pragmatic legal solutions, Richard’s practice predominantly focuses on Richard Crane divorce proceedings, property settlements, child support and custodial arrangements, de facto separations and spousal maintenance orders.

possible legal outcomes for both de facto and married couples.

Erin has four years’ experience across family law, commercial litigation and estate planning and joined HHG Legal Family and De Factor Law team in November 2018. Over the last 14 months Erin has cemented her position as one of the rising Erin Papalia stars in the firm due to her commitment to achieving the best legal outcome for clients She is highly regarded for her personable and pragmatic approach to solving her clients’ issues which enables her to deliver real value.

Richard is permanently based in HHG Legal Group’s Joondalup office where he has already been serving the region’s families for over eight years.

Sue Holgate has nearly two decades of experience assisting clients in all areas of family law, including representation in the Family Court, High Court, and Supreme Court.

She prides herself on her Sue Holgate compassionate, supportive, yet pragmatic communication style with clients. Sue is also a skilled mediator, highly experienced in negotiating delicate settlements and handling complex legal matters. Like all of the HHG family law team, Sue is committed to delivering the best

46 | BRIEF APRIL 2020

James Sippe

Samantha Nadilo

Fourth Floor Chambers Fourth Floor Chambers is pleased to announce that James Sippe and Samantha Nadilo, both formerly of Herbert Smith Freehills, have joined Chambers with Grant Donaldson SC, Steven Penglis SC, John Fiocco, Steven Standing, David Thompson, Joel Yeldon and Rachael Young.

Classifieds

Missing Will

Missing Will

Any person holding or knowing the whereabouts of the last Will and Testament of the late LEON DALE KOTZ of 4 Robinson Road, Roleystone, WA 6111 who died on 7 December 2019, please contact FourLion Legal at Ground Floor, 12 St Georges Terrace, Perth on (08) 9335 6643 or lstrydom@fourlionlegal.com.au within 1 month of the date of publication of this advertisement quoting ref: 201255.

Would any person or firm holding or knowing the existence or whereabouts of a Will or other testamentary document of JULIE ANN MACGREGOR, 22 September 1960, late of 25/55 Moran Court, Beaconsfield, Western Australia, who died on 21 June 2019, please contact Joss Legal at Address: Suite 1.6, Level 1, 9 Bowman St, South Perth, WA 6151 Tel: (08) 6559 7480 Email: lawyers@josslegal.com.au

BRIEF For advertising opportunities in Brief please contact:

Madeleine McErlain Manager, Marketing and Communications T: (08) 9324 8650 E: advertising@lawsocietywa.asn.au lawsocietywa.asn.au

New Members New members joining the Law Society (March 2020) Restricted Practitioner Miss Rosie Littlefair Stephen Browne Lawyers

Associate Membership Ms Kristen Ashton Legal Aid Western Australia - Perth Office Mrs Avril Bannink Edith Cowan University - Business & Law Ms Tanya Brisbane Murdoch University - School of Law Miss Sarah Christopher Murdoch University - School of Law Miss Louella Eaton Curtin University - School of Business Law & Tax

Miss Gabrielle Gordon Murdoch University - School of Law Miss Sopie Luscombe Mr Brighton Marekera Murdoch University - School of Law Ms Hayley Murr Curtin University - School of Business Law & Tax Mr Timothy O'Byrne Deakin University Dr Delane Osborne Curtin University - School of Business Law & Tax Miss Julie Roche Curtin University - School of Business Law & Tax Mr Jing Zhi Wong The University of Western Australia - Law Faculty Miss Noelle Yip The University of Western Australia - Law Faculty 47

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