Brief December Edition

VOLUME 47 | NUMBER 8 | DECEMBER 2020

A Year in Review Young Lawyers Committee is Proudly Celebrating 40 years Woman Lawyer of the Year: Interview with Kate Offer Interview with Attorney General John Quigley MLA on the WA Pro Bono Model A Judge Alone – Who Cares?

Henry VIII Clauses

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Volume 47 | Number 8 | December 2020

12

CONTENTS

37

FOLLOW US lawsocietywa.asn.au LawSocietyWA @LawSocietyWA

39

41

ARTICLES 03

2021 Council

35

A Judge Alone – Who Cares?

06

A Year in Review: 2019/20 Annual Report

37

Henry VIII Clauses

39

Changes to the Taxation of Testamentary Trusts – Distributing Income to Minors

12

Young Lawyers Committee Celebrating 40 Years Catalyse Engagement and Retention of Legal Professionals Report

41

Taxing Matters

42

Mock Trial Competition Event Wrap Up

30

Woman Lawyer of the Year: Interview with Kate Offer

47

Vale Hon David Ipp AO QC

33

Interview with Attorney General John Quigley MLA on the WA Pro Bono Model

29

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

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

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

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

Published bi-monthly (Feb, Apr, Jun, Aug, Oct and Dec) Advertising enquiries to Manager Marketing and Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au Communications and Design Officer: Charles McDonald RRP $16.00 incl GST.

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 Proofreaders: Sonia Chee, Cassandre Hubert 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

REGULARS

Senior Vice President: Jocelyne Boujos Junior Vice President & Treasurer: Rebecca Lee Immediate Past President: Greg McIntyre SC

02

President's Report

49

Cartoon

04

Editor's Opinion

50

Law Coucil Update

44

High Court Judgments

51

Professional Announcements

46

Family Law Case Notes

51

Classifieds

48

Quirky Cases

51

New Members

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

01

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

Welcome to the December edition of Brief, the final edition for 2020 and my last Report to you as President of the Law Society of Western Australia.

This edition celebrates the 40th anniversary of the Law Society of Western Australia’s Young Lawyers Committee (YLC) with a special feature from page 12 to 28. The feature provides a glimpse of the important work done by the YLC and reflects on its contribution to social justice and advocacy in the legal profession. Importantly the YLC ensures that our youngest and least experienced members have a platform to engage and contribute to the profession.

This is important as it ensures that their voice and perspectives are heard, acknowledged and form part of the Society’s consciousness. As the Chair Jack Carroll mentions in his letter, “Given the Law Society’s role as being the voice of the profession, the YLC prides itself on using its voice to contribute to the future of the profession.” I hope you enjoy this celebratory feature.

Law Society Council Election Congratulations once again to each of the members elected to the Law Society’s Council for 2021, and in particular to Ms Jocelyne Boujos, elected as the Society’s next President.

I thank all members who participated in the election process including those members who voted in the elections and all of those who nominated for positions as this requires courage and commitment. The strength of our Society is predicated on the engagement of our membership and not merely the quantum of members, so I thank you all.

Having worked closely with Jocelyne for a number of years, I know she will continue to strongly represent the Society’s members and the interests of the broader legal profession. I look forward to working with Jocelyne, her Executive and the other members of the 2021 Council next year in my role as Immediate Past President. You will find

02 | BRIEF DECEMBER 2020

a full list of the 2021 members of Council on page 3 of this edition of Brief.

Finally, best wishes and thank you to the valued members of our Council, Immediate Past President, Greg McIntyre SC, Nathan Ebbs and Gemma Swan, who will be finishing their terms at the end of this year.

Annual General Meeting The Law Society's Annual General Meeting (AGM) was held on Thursday, 19 November at the Perth offices of Herbert Smith Freehills. Members approved the Law Society's 2019/20 Annual Report and Financial Statements.

From page 6 of this edition of Brief, you will find a copy of my Report from the 2019/20 Annual Report, along with some interesting statistics from the Law Society’s activities, represented in graphical form in “The Year in Numbers”.

I encourage you to read the full Annual Report, as it provides an insightful overview of the Law Society’s initiatives and campaigns, and demonstrates the Society’s role as the voice of the legal profession. (To view the full Report, please visit our website here: lawsocietywa.asn.au/annual-reports.)

Finally, my warmest congratulations to Denis McLeod, who was deservedly awarded Life Membership of the Law Society at the AGM.

New Senior Counsel On behalf of the Law Society, may I again congratulate each of the practitioners appointed Senior Counsel, as announced by the Hon Peter Quinlan, Chief Justice of Western Australia in November. The appointments are Mr Graham Droppert, Ms Penelope Giles, Mr Matthew Curwood, Mr Alan Sefton, Ms Kim Lendich and Mr Lindsay Fox. The Society, profession and the community will all benefit from the contribution of these senior lawyers in the role of Senior Counsel. Mr Droppert, Ms Giles and Mr Curwood are longstanding members of the Society.

Appointment as Senior Counsel is a rare honour granted to those practitioners

who have demonstrated eminence in the practice of law especially in advocacy, together with unquestioned integrity, availability and independence. The Law Society wishes each of them the very best in their appointments.

Legal Profession Uniform Law The Society’s Uniform Law Working Group remains busy in preparing materials and holding CPD events to educate the profession on the most important change to occur to legal practice in WA since 2008. At the time of preparing this report the WA Parliament had had its final sitting days with roughly 40 bills remaining to be passed including the Legal Profession Uniform Law Bills. With this in mind the Law Society is seeking clarification from the Attorney General about what this means for the commencement of uniform law in Western Australia and whether the proposed timeframe of 1 July 2021 is still relevant.

Fact sheets are now available on the Law Society’s Uniform Law website hub on various aspects of the Uniform Law. More fact sheets and updates to existing fact sheets will be made available as the commencement Uniform Law draws nearer. The Law Society extends its gratitude to all those involved in the preparation and settling of the fact sheets.

Thank You and Best Wishes Finally, it remains for me to express some brief words of gratitude. It has been an honour and a privilege to serve as President in what has been both a challenging and an extraordinary year.

I thank members of the Society, my Executive, members of Council, the Chief Executive Officer and the Chairs and members of the Society’s many committees, for their collegiality, support and commitment, and our valued staff for their unwavering support and dedication to the Society and its members.

I wish everyone an enjoyable and restful holiday season, and every success in 2021.

2021 Council The Law Society's Council for 2021 is listed below, following the election which closed on 11 November 2020.

Thank you to members who voted and to everyone who nominated for a position on the Council.

Council Executive Members

Jocelyne Boujos President

Rebecca Lee Senior Vice President

Shayla Strapps Junior Vice President & Treasurer

Nicholas van Hattem Immediate Past President

Principal, Boujos Legal Council Term Expires: 12/2021

Barrister, Francis Burt Chambers Council Term Expires: 12/2021

CEO, Mental Health Law Centre (WA) Council Term Expires: 12/2021

Barrister, Francis Burt Chambers Council Term Expires: 12/2021

Council Ordinary, Country and Junior Members

Rebecca Bunney Ordinary Member

Daniel Coster Ordinary Member

Angie Gimisis Ordinary Member

Ante Golem Ordinary Member

Head of Practice – Family Law, Cullen Macleod Lawyers Council Term Expires: 12/2021

Senior Associate, Moray & Agnew Council Term Expires: 12/2021

Senior Associate, Hall & Wilcox Council Term Expires: 12/2021

Partner, Herbert Smith Freehills Council Term Expires: 12/2022

Mark Hemery Ordinary Member

Matthew Howard SC Ordinary Member

June Kenny Ordinary Member

Gary Mack Ordinary Member

Partner, Hotchkin Hanly Lawyers Council Term Expires: 12/2021

Barrister, Francis Burt Chambers Council Term Expires: 12/2022

Director, JDK Legal Services Council Term Expires: 12/2022

Lawyer, Abacus Legal and Mediation Council Term Expires: 12/2022

Judy McLean Ordinary Member

Craig Slater Ordinary Member

Brooke Sojan Ordinary Member

Paula Wilkinson Ordinary Member

Principal Solicitor, Fremantle Community Legal Centre Council Term Expires: 12/2022

Barrister, Francis Burt Chambers Council Term Expires: 12/2021

State Prosecutor, Office of the Director of Public Prosecutions WA Council Term Expires: 12/2021

Director, Kim Wilson & Co Council Term Expires: 12/2022

Melita Medcalf Country Member

Thomas Camp Junior Member

Selina Gates Junior Member

Lea Hiltenkamp Junior Member

Solicitor in Charge - Pilbara Regional Office, Legal Aid WA Council Term Expires: 12/2021

Solicitor, Butcher, Paull & Calder Council Term Expires: 12/2021

Solicitor, Cove Legal Council Term Expires: 12/2021

Lawyer, Glen McLeod Legal Council Term Expires: 12/2021

03

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

Welcome to the final edition of Brief for 2020. In this edition we look back over the year as it was documented in the Society’s Annual Report, we also celebrate a momentous milestone for the YLC who celebrated its 40th anniversary which is particularly fitting as the YLC is a vitally important part of the Society and also provide so much material for Brief on a regular basis.

reveals that a consensus seems to be forming around 536 AD2 being the worst year ever. Apparently, in 536 AD, and in addition to all sorts of other disorder, war and pestilence, a massive volcano erupted in Iceland creating a huge ash fog that cast large parts of the world into darkness for about 18 months, caused temperatures to plummet, and destroyed crops leading to widespread famine across Europe, Africa and Asia.3

We have interviews with Kate Offer, the Woman Lawyer of the Year, and the Attorney General John Quigley MLA on the WA Pro Bono Model. Also, along with our regular items, we have an interesting article by Thomas Moorhead on “Henry VIII Clauses” and a reflection on trials without a jury, “A Judge Alone - Who Cares?” by John McKechnie QC, who we are of course grateful to have as a regular contributor through his “Quirky Cases” segment. We also thank the anonymous Drover’s Dog and our other regular contributors including Dean Alston (a stalwart of Brief for many years) for those entertaining and insightful items.

Interestingly, one group that seemed less perturbed than others about these developments were the Goth tribes who continued to tally forth with, for instance, the (last of the) Gothic Wars against Emperor Justinian’s East Roman (Byzantine) Empire, which had been kicked off with the Ostrogothic Kingdom the previous year.

Thanks to all those at the Society who are involved with Brief, to the members of the Brief Committee for supporting the Society as the voice of the legal profession, to our proof-readers and to our valued advertisers. All this support has been particularly important in this challenging year which, among other things, saw Brief convert to a bi-monthly digital format. One aspect of this challenge was to try to reach a landing on the ferociously controversial topic of whether “bi-monthly” means twice a month or every two months, or how it should self-identify1.

It is perhaps not all that surprising, given modern experiences, that Goths would be less concerned than most about there being 18 continuous months of darkness and cold and indeed, in those conditions, large swathes of the population probably ended up looking like Goths.

However, underlining again the power and importance of the law throughout human history, even in those terrible times the Emperor Justinian undertook and completed the great task of codifying the law, the Justinian Code ultimately comprising of four main books, the Codex Constitutionum (work on which commenced in 527) the Digesta or Pandectae, the Institutiones, and the Novellae Constitutiones Post Codicem.

Many are openly celebrating the prospect of bidding farewell to 2020, which is being widely touted as one of the worst years in history.

This massive task of collecting, recording, and reconciling the disparate, arcane and often obscure laws and pronouncements from various sources, to create a settled code was performed not only during a period where Goths were running rampant throughout the Empire with their depressing music (often involving electric drums), but also through the events of 536 AD and the aftermath of that year.

However, a quick internet search

The Digesta, which itself is comprised

And, of course, the greatest of thanks to you our readers, especially those who have provided feedback about Brief.

04 | BRIEF DECEMBER 2020

of 50 books, was the result of a commission of 16 lawyers working for years (no reliable historical record exists of their charge out rates) under the supervision of the jurist/managing partner Tribonian.

The events of 2020 gave rise to many excuses and indulgences sought on the work front, though one has to really sympathise with those in 536 AD, given that some things likely never change: “So, how are you going with the Digesta, we’re a bit concerned about time slippage?”

“I’ve had 16 lawyers working full time on it, though 3 are off on pestilence leave, we’re working covered in ash in the dark, its freezing, and I’ve got a Goth problem.”

“OK, understood – so can I tell the client

by Monday then?”

There is cause for optimism that 2021 will be a marked improvement on 2020.

Though it is somewhat depressing to see, when one looks to whether 537 AD was much of an improvement, things didn’t really bounce back cheerily. The catastrophic conditions were very much the same, the Goths sacked Rome, and the bad news continued rolling in England as 537 AD is attributed by some to be the year the legendary King Arthur was slain at the Battle of Camlann, which from all accounts should probably have been called off for bad light.

Brief wishes all readers a happy festive and holiday season, and looks forward to reuniting with readers in February 2021.

Endnotes 1 Readers are invited to consider and weigh in on this controversial topic over the bi-monthly no, wait December and January period, before Brief resumes in February 2021.

2 Though to the Editor 1988 and 2000 (AD) being the Melbourne Football Club’s last two grand final appearances, are prime candidates.

3 See “536 AD — The worst year in history: scholars and researchers agree on the year that was worse than any other, Saamir Ansari, medium.com. Medieval historian, Michael McCormick has stated that “it was the beginning of one of the worst periods to be alive, if not the worst year.” (Science Magazine, Ann Gibbons, 2018).

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

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2019/20 Annual Report The following is a summary of the Law Society's 2019/20 Annual Report, which was approved by members at the Annual General Meeting held in November 2020. A full version of the Annual Report is available on the Law Society's website.

President's Report In January 2020, I commenced my Presidency with a plan.

2020 had other plans...

The Law Society is the voice of the legal profession.

Corporate Counsel, Australian Lawyers Alliance, Community

We can fulfil that purpose authoritatively, because our

Legal WA, Criminal Lawyers Association, Environmental

membership represents more than half of the practising

Defenders Office, Family Law Practitioners Association,

lawyers in the state. Still, our authority (and capacity)

National Environmental Law Association, The Piddington

would be greater if that percentage was higher. I thought

Society and the WA Society of Jewish Jurists and Lawyers.

in January, and still think now, that the strongest future for the Society will be in further collaboration with other law associations in this State, some of which attract practitioners who for financial or other reasons are not

The event began as an idea from UWA’s Dr Marilyn Bromberg on 13 January. Less than three weeks later, 220 practitioners had come together and raised $7,600

yet members of the Society.

for the Red Cross Australia Bushfire Relief Fund. The

In seems like longer ago, but January 2020 was amid

practitioners from diverse sections of the profession, and

the devastating bushfire disasters on the east coast of

students, all learned of attempts (and failures) in climate

Australia. The Society responded in partnership with

change law and policy in Australia from Associate

the University of Western Australia (UWA), with a CPD

Professor David Hodgkinson. The Honourable Robert

fundraiser. The event was supported also by the WA Bar

French AC’s opening remarks regarding climate change

Association, Asian Australian Lawyers, The Association of

litigation received national media coverage.

06 | BRIEF DECEMBER 2020

funds raised were significant, but as importantly,

The event presented a dynamic and exciting model for

whilst operating on reduced resources.

other collaborative opportunities. Following the event, representatives from the participating law associations

Practically, this involved staff reducing their hours and

planned a face-to-face meeting to explore other ways to

pay by 40%, in an already challenging and foreboding

work together. While we got to see each other’s faces, we

time. Council was humbled by our staff’s commitment

did so over Zoom. Amid COVID-19, the consensus was:

to the Society, and eager to return staff to their ordinary

“let’s revisit this in the future”.

hours as soon as we were in a financial position to do so. Happily, that has now occurred, although we are all

What can I say about COVID-19? I suspect we still don’t

watching closely and ready to act if WA is affected by a

appreciate the structural impact it will have on our

second wave. Some staff have elected not to return to

profession (and our lives). As I write this, there remains

full time, having found satisfactory flexible arrangements.

so much uncertainty, although we have some capacity

While many of us have suffered Zoom fatigue,

to plan. In March, as the Society needed to plan for its

undoubtedly the profession has benefited from more

future, information and events moved rapidly.

sophisticated and flexible ways to work.

The Society moved rapidly too. We established a

Another COVID change meant moving Law Week online.

COVID-19 Hub on our website, as an authoritative single

While it was a shame to miss some of the exciting events

point for all the latest information from Courts and

usually held in that week, one positive was the streaming

other authorities. The hub was soon replicated in other

of a forum featuring the Hon Chief Justice and leaders

jurisdictions.

from the community law sector, addressing the topic

We then needed to respond internally. The measures that were taken by the Law Society to support its members with a “one off” COVID-19 Membership

of access to justice. By streaming the event, the forum reached an audience of more than 250, far bigger than we would ordinarily hope to see in person.

Support Package had a significant impact on the

Similar success followed the streaming of our annual

revenue base of the Law Society and so it was

Ronald Wilson Oration, and our forum for the National

imperative that, as an organisation, we were able to

Uniform Profession legislation.

identify sufficient savings in our cost base in order to be able to deliver it.

In June, the Hon Chief Justice Kiefel issued a statement relating to the investigation of allegations that the Hon

The response which was led by our Chief Executive

Dyson Heydon had engaged in sexual harassment while a

Officer and the senior management team was significant

Justice of the High Court. The Law Society supported the

and inspiring to all of us on the Council, as it largely

statements and advocacy of the Law Council of Australia,

came in the form of our operational staff, through their

Heads of Jurisdiction in WA and Women Lawyers of WA

understanding of the situation, volunteering to reduce

in condemning sexual harassment and discrimination. In

their hours and respective salaries to help find the

addition to other responses, work continues on some new

necessary savings required to enable the Law Society

initiatives which I hope can be announced before the end

to maintain a "business as usual" approach and deliver

of this year.

another strong suite of member services and outcomes

07

In August, State Parliament legislated to unilaterally

Two key highlights for this reporting period occurred

amend a state agreement. The “Clive Bill” as it became

in the area of access to justice with the Law Society’s

known, required a response from the Society. Following

support for:

consideration and consultation, I communicated a position on behalf of the Society – the most sensational extract of

1. The Government’s introduction of pro bono work

which called the legislation “unprecedented and extreme”.

requirements scheme for law firms that wish to

I’m grateful to the colleagues from Council, Executive, Past

tender for Government legal work; and

Presidents and senior colleagues at the bar who assisted

2. The Law Council of Australia’s Justice Project, a

in the construction of a difficult line. I am also grateful to

national review into access to justice in Australia.

the Members who contacted me to express their support of the Society’s advocacy on the legislation.

The number of submissions to government agencies increased this year (see page 38 of this Report) and

While the majority of feedback communicated to me

included issues that not only provided new areas of law

was positive, sadly the more impactful feedback was the

for legal practitioners but were also important public

member who called me to say that I should be ashamed

policy debates for consumers and industry groups.

of myself, and that I was both a communist and that the Society’s statement would have “made Goebbels proud”.

During the last six months of Greg McIntyre SC’s term

As a man with Jewish ancestry, with other ancestors killed

as President and the first six months of my term, the

by Stalin, the comments stung. If you ever feel like invoking

Law Society was a strong advocate on the following

such themes in feedback to anyone, I’d strongly encourage

important issues:

you to restrain yourself.

•

The Justice Project – road map and plan to

All of which is to say, 2020 has been a challenging

implement the recommendations of the Report that

year. It was also the year that I first sought help of a

are most applicable to Western Australia

psychologist. I was proud to say so in this year’s Mental Health Week in the Society’s Brief and Friday Facts. As

•

COVID practice directions and legislative reform in the area of employment, elder law and courts, the

I noted at the time, my ability to discuss it openly was

Senate Select Committee on COVID-19’s inquiry

very much a result of the Hon Attorney General’s similar

into the Australian Government’s response to the

comments at a Piddington Society mental health event

COVID-19 pandemic

in 2019. To date, the feedback I have received on that bit of advocacy has only been positive, predominantly from fellow practitioners who also benefit from some mental health help, and also wish to normalise assistance and de-stigmatise mental health.

More details and photos of the events from the 2019/20 financial year are shown in the “Year in Review” section of this report. My sincere thanks to everyone who contributed to the success of these (and other) Law Society events.

Advocacy Highlights One of the objectives of the Law Society, as outlined in its Constitution, is to promote the development and improvement of the law in Western Australia. To this end, the Society continued to advocate for law reforms

•

Proposal to increase the minimum age of criminal responsibility from 10 to 14

• • • • • • •

Convention on the Rights of Older Persons Work Health and Safety Bill 2019 Ticket Scalping Claims Harvesting Modern Award for Early Career Lawyers Strata Titles Act Amendment Bill 2018 Spent Convictions Regulations 1992 (WA) and the Inquiry into Family, Domestic and Sexual Violence

• •

The Voluntary Assisted Dying Bill 2019 (WA) The Legal Profession Uniform Law Application Bill 2019

that would enhance the legal profession and benefit the

It is worth me commenting here on the introduction

community.

of the Legal Profession Uniform Law Application Bill 2019 as it is one of the more significant Bills to be

08 | BRIEF DECEMBER 2020

introduced in Western Australia that will affect all legal

3. Reducing crime including sentencing and justice;

practitioners. A road map for informing the profession

4. Justice project (implementation of);

of the changes is currently being prepared and will continue into the next reporting period. At this stage, the commencement date for uniform law is 1 July 2021 and the Government continues to be committed to this timeframe. Information on the Uniform Law can be found on the Law Society’s website.

Another important aspect of the Law Society’s ongoing advocacy is the Law Council of Australia’s

5. Amendments to the Administration Act; and 6. Rule of law.

The Law Society will be seeking a response from both the Government and Opposition on these Topics as part of the Law Society’s 2021 Election Advocacy Campaign.

advocacy on national issues including the continuation

In summary

of the Indigenous Legal Assistance Program and

It has been both a privilege and a uniquely challenging

constitutional recognition of Aboriginal and Torres Strait Islander peoples with important submissions being sent to Government concerning amendments to the Spent Convictions Regulations 1992 (WA) and the Inquiry into Family, Domestic and Sexual Violence.

The Law Society has continued to progress initiatives targeted at the advancement of women in the legal profession, including by commissioning a survey on the engagement and retention of legal professionals and developing the Charter for the Advancement of Women in the WA Legal Profession to promote strategies to retain women in the profession and encourage career progression.

The advocacy campaigns and initiatives undertaken this year would not be possible without the committee and working group members who volunteer their time to the work of the Law Society. The Law Society acknowledges the significant contribution made by these members.

year to be President of the Law Society. Despite the pandemic, I am extremely proud but not surprised by the great resilience that the Law Society has demonstrated and how it has continued to deliver on key services and support to its members and the broader legal profession in a positive and meaningful way.

I would especially like to acknowledge and thank our Chief Executive Officer, Executive Committee and fellow Councillors, the Senior Management team and our staff for all of their strong commitment and dedication to the Law Society and providing me with their invaluable support this year.

Importantly also, I would like to thank all our Law Society members for their loyal support and in particular for renewing your membership again for 2020/21. It has never been more important for the legal profession to stand together – and because of your ongoing support, the Law Society can strongly and proudly continue to be the voice of the legal profession and promote the development and improvement of law throughout the

2021 State Election Advocacy Campaign

State of Western Australia.

Looking ahead, the Law Society has prepared a set of key policy issues to promote to the Government and Opposition during the 2021 Western Australian election campaign based on the following six (6) Election Platform Topics: 1. Increase access to justice; 2. Court resources:

• • •

Nicholas van Hattem President The Law Society of Western Australia

Infrastructure; Judicial appointments; Jurisdiction;

09

A Year in Numbers

4,054 Members

Ordinary

3,150

Incorporated Legal Practice

278

Student

289

Associate

214

Judicial

60

Life

35

On Leave

16

Honorary

12

46 firms accredited through the Quality Practice Standard

10 | BRIEF DECEMBER 2020

31

200+

policy papers and submissions produced on key issues affecting the profession and advocating on rule of law

members shaped the Law Society’s advocacy by sitting on committees and contributing submissions to Council

50

1,667

members accredited through the Family Law Specialist Accreditation programme

attendees participated in Law Mutual Risk Management Workshops and Seminars

4,268

5,774

314

registrations for the Law Society’s Continual Professional Development offering

educated on the legal profession by participating in the Francis Burt Law Education Programme

students from metro and regional schools participated in the Cluedunnit Kids Competition

4,585 total visitors to the Old Court House Law Museum

71 face-to-face seminars

1,080 Mock Trial Competition student participants

72 eLearning seminars

Students gained WACE accreditation

681

Legal professional volunteers

148

Mock Trials

180

School teams competed

112

11

you n g l awye r s commi t t e e i s pr o u d ly

Celebrating 40 Years SINCE 1 98 0

WHAT'S INSIDE 19

From the Chair

20

Meet the 2020 YLC Committee

22

How They All Rose: The Judges’ Stories and Advice for the Next Generation of Lawyers

29

Perspectives on Sexual Harassment and the Legal Profession – Advocating on Important Issues

30

The Power of Networking Volunteering to Make a Difference – Ready, Willing and Able

25

Mock Trials: Budding Young Lawyers – Where the Inspiration Began

31 32

WA Case Notes

26

Golden Gavel – A Stage to be Heard and Seen

33

Meet Past Chairs

28

Advocacy Weekend – Building Advocacy Skills with the Best

12 | BRIEF DECEMBER 2020

from the chair 2020 has been a year far from the ordinary. We have seen disruption to our day to day lives like many of us have never experienced. It has been a time to reflect and to look forward.

2020 has also been the year of the 40th anniversary of the Law Society of Western Australia’s Young Lawyers’ Committee (or the YLC as it is affectionately and colloquially known).

The YLC was officially formed in 1980 and is open to law students, graduates and lawyers in their first five years of practice and/or under the age of 35. Given the Law Society’s role as being the voice of the profession, the YLC prides itself on using its voice to contribute to the future of the profession. As at June 2020, young lawyers comprise 1,595 of the Society's 4,054 members, or just over 39%.

Among other things, we see an important part of our role as advocating for those embarking on the transition from law school to the profession and then through their journey to becoming the next generation of leaders of the profession in Western Australia. We seek to guide those transitioning from student to practitioner, which as we all know is a journey fraught with unique and unfamiliar challenges.

We started 2020 full of enthusiasm and promise by unveiling a new updated logo at a sold out sundowner and arranged the ABC's Julian Morrow to present a CPD at Perth's Town Hall. Alas, no corner of the globe has remained unaffected by the shroud of the COVID-19 pandemic. The YLC has been no different.

It has been a strategic focus of the YLC in 2020, as it will continue to be in 2021 and beyond, to raise awareness, and advocate for young lawyers, in respect of working conditions. As part of that focus, the YLC conducted a survey during COVID-19 to gain an insight as to how it uniquely impacted young lawyers. We used that data to proffer a view on the tangible changes brought about by the pandemic which can benefit young lawyers' practice, and which was included in Brief. We also provided a detailed submission to the Law Council of Australia on young lawyers working conditions.

Notwithstanding the unique circumstances we find ourselves in, we have nevertheless been fortunate to have enjoyed the collegiate company of our peers at two sold out sundowner events (and I hope a

Jack Carroll, Chair, The Law Society of Western Australia's Young Lawyers Committee

third to celebrate the release of this edition) together with a sold out Careers Uncut event and an explosively competitive netball competition.

We have been also been fortunate to receive the efforts and goodwill of those willing to contribute to this edition of Brief. We have had the extraordinary benefit of speaking with Justices Kenneth Martin and Gail Archer of the Supreme Court of Western Australia together with Justice Katrina Banks-Smith of the Federal Court of Australia who each touch on their respective journeys from young lawyers to the bench. I trust you find pearls of wisdom aplenty.

Former winner and current committee member Lyle Swithenbank gives a rousing history of the jocular joviality of the Golden Gavel, our stalwart event which we hope will return bigger and better in 2021. We touch on the YLC's advocacy weekend which provides budding advocates an opportunity to hone their skills through guidance from this State's preeminent counsel and jurists.

We also hear from the YLC's advocacy subcommittee leader, Aleksandra Miller, who provides a poignant and topical perspective on an issue which disproportionately affects female young lawyers, sexual harassment in the legal profession, while Education Subcommittee leader Briony Whyte recounts the YLC's proud tradition of social justice initiatives and community engagement.

We are also privileged to hear from former YLC Chairs, Rick Cullen, the Hon John Chaney SC, Rabia Siddique, Adam Ebell and Zoe Bush who share anecdotes on their involvement in the formative years of the YLC and the benefits they derived.

Penning this note will be in essence my last substantive involvement in the YLC (save for toasting a glass at our 40th anniversary sundowner on 2 December) as my tenure as Chair comes to end and I pass the proverbial torch to my talented successor, Chris Burch.

While my tenure has come to an end, my involvement in the YLC has enabled me, as a junior member of the profession, to have the benefit of experiences I would not have otherwise had.

I commenced on the YLC as a committee member in February 2017 when I was an exuberant and fresh(er) faced restricted practitioner. Since then I have had the pleasure of being Deputy Chair in 2018, and Chair from June 2019. Through the YLC, I have been fortunate to contribute as a junior member of Council and as a committee

member of the Law Council’s Australian Young Lawyers Committee (which has had a strong presence of sand gropers of late with former YLC Chair Sarah O’Brien-Smith being the longstanding Deputy Chair of that committee).

Reflecting on my experiences, I encourage every young lawyer to get involved with the YLC in whatever capacity that may be. Whether that is joining the committee, participating in our mentoring programme, playing in our sporting competitions, attending a networking event or assisting Tom Camp in his eternal task of procuring case notes.

It has been an honour to be Chair of the YLC as it turns 40 particularly given the unique challenges 2020 has brought for young lawyers. It is humbling to look back at the achievements of former Chairs and YLC members including multiple Presidents of the Society, silks, Judicial officers, members of Federal Parliament, a Coroner, a Registrar of the District Court, and countless successful practitioners in both public and private practice.

We have put together this special addition to this month’s Brief, to not only celebrate our 40th birthday but to celebrate all the immense work done by those members of the profession who came before us and convey to the wider community the substance and importance of what is being accomplished by this committee and our cohort.

In doing so, thanks must go particularly to incoming 2021 YLC Chair Chris Burch together with YLC members Aleksandra Miller, Lea Hiltenkamp, Demi Swain, Lucy Clark, Lyle Swithenbank, and Briony Whyte for their efforts in drafting and collating the material comprising the YLC contribution to this edition of Brief.

Thanks must also go to Editor Jason MacLaurin SC and my other fellow members of the Brief editorial committee for allowing us to be the focus of this edition of the publication.

With hopes of the continued abatement of the impacts of the pandemic, the YLC is optimistic to return to our full offering in 2021. As Albert Camus noted in his allegorical 1947 work "The Plague" – once the faintest stirring of hope became possible, the dominion of the plague has ended.

I hope you enjoy this YLC feature in Brief.

Happy birthday and here’s to many more.

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Reflections from the The Voice of our 2020 YLC Young Lawyers Jack Carroll - Chair

Lucy Clark

Sean Gomes

What do you know now as a young lawyer that you wish you knew when you were a law student?

What initiatives would you like the YLC to set its sights on in 2021?

What do you know now as a young lawyer that you wish you knew when you were a law student?

Jack Carroll You “only get out what you put in”.

The practice of law is very different to the study of law. It can be a daunting prospect when starting out as a junior lawyer but the more involved you become in the profession the greater you will feel part of the “profession” as opposed to a mere business. In short -attend events, attend seminars, say yes to that coffee meeting, say yes to probono work, ask questions, and take any opportunity to learn (it is a lifelong pursuit after all!).

Hague Skinner Deputy Chair Is there a YLC project which you are most passionate about?

Hague Skinner The YLC’s Law Student Mentoring Programme – the Programme is a great opportunity to connect law students with young lawyers and to explore the unique challenges which face junior members of the legal profession.

Chris Burch What is the most memorable YLC event for you?

Golden Gavel 2018 in an early sign that my Chris Burch career was not high on my list of priorities, I gave a speech on ‘Do you have capacity? and other rhetorical questions’. The topic was a gift, as was my place halfway through the speakers list and about 6 drinks in (for the crowd). I’ll never forget the Chief-Justiceto-be’s roast, and winning the People’s Choice award despite there being no apparent vote.

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I think the YLC should focus on initiatives Lucy Clark that seek to improve the transition from law student to graduate/lawyer, the working conditions of young lawyers, particularly in commercial law, and the support for junior lawyers’ mental health.

Coraline De Zilwa What has been the best part of being a YLC committee member?

I have been a YLC Coraline De Zilwa committee member since January 2020 and I was instantly warmly welcomed into the committee by all of the members. It has been great to have such open and collaborative discussions about what we want to do as a committee for our members, and young lawyers in general, and to be able to contribute to those plans and initiatives.

Anthony Dique What achievement are you most proud of as a young lawyer?

Successfully Anthony Dique obtaining an injunction in the Family Court for orders to protect the marital funds from being squandered to fund a drug and gambling addiction within two days of the client coming in.

Sean Gomes Whilst focusing on learning legal concepts and achieving good grades are important in law school, they are not the be-all and end-all. In practice, it is equally important that you be well-rounded, which means doing extracurriculars (including hobbies and taking on leadership roles in outside organisations), gaining broad life experiences and developing good social skills with an ability to build rapport with colleagues, clients and the community.

Forming connections early at uni will also make business networking much easier.

Ellie McGrory What achievement are you most proud of as a young lawyer?

I am proud of my pro Ellie McGrory bono contribution.

Most recently, I assisted the HIV Justice Network in conducting research into global HIV criminalisation laws, with a particular focus on Israel, Italy and Luxembourg. I have also assisted the Australian Human Rights Commission analyse submissions addressing the Australian Government’s implementation of the Optional Protocol to the Convention Against Torture and been successful in assisting victims of child sexual abuse obtain criminal injuries compensation awards.

Ross Mendonca

Lyle Swithenbank

Demi Swain

What initiatives would you like the YLC to set its sights on in 2021?

What has been the best part of being a YLC committee member?

What initiatives would you like the YLC to set its sights on in 2021?

I would like to see Ross Mendonca the YLC try increase protections of graduate and junior lawyers. I have heard far too many stories of junior workers being exploited and underpaid (or receiving no pay) whilst trying to complete their PLT or restricted practice period. There needs to be greater awareness and pressure on law firms to compensate junior workers adequately and in line with market standards.

The camaraderie!

Lyle Swithenbank Everyone is so welcoming. It is also great to be a part of the future of the profession. I love being able to represent my peers.

I would like the YLC Demi Swain to continue to focus on mental health and wellbeing for juniors in the profession. The YLC has already done fantastic things and I look forward to contributing to more initiatives in this regard.

Aleksandra Miller Is there a YLC project which you are most passionate about?

This year I have led Aleksandra Miller the YLC’s working group on young lawyers’; working conditions. The working group is working on projects to tackle issues such as underpayment in the legal profession, excessive working hours, and promoting safe, fair and inclusive workplaces. One of our exciting projects is the development of guidelines for the legal profession around these issues, including diversity and inclusion, and sexual harassment. We are also working on advocating for access to working from home options for young lawyers, following a survey earlier in the year showing great support for continued access to working from home options. I hope that these projects will contribute to lasting changes which improve the wellbeing of early career lawyers and their experience of working in the law.

Nicholas Mountain What is the most memorable YLC event for you?

The YLC mixed volleyball, the first Nicholas Mountain and last big event that I attended as a committee member before social distancing became part of our regular vernacular.

Briony Whyte What do you know now as a young lawyer that you wish you knew when you were a law student?

Briony Whyte You do not need a clerkship or a graduate position to become a lawyer! The ‘stepping stone’ pathway of clerkship à graduate à associate is not the only way to build a career in this industry and, though it may seem like you are the only one without an offer, there will be more opportunities.

Your first job as a lawyer IS your grad job, even if it’s not a rotational position at a top tier firm, and the experience you gain working in-house/in government/in a boutique or mid-tier firm will set you up for later opportunities.

Anlee Khu What achievement are you most proud of as a young lawyer?

The achievement that Anlee Khu I am most proud of as a young lawyer is not any job, interview or uni grade, but remaining a genuine human being. It sure is hard work. However, one time in primary school, my teacher told me that being genuine was a great Australian trait – so that’s what I’ll be to hopefully make it obvious.

Tom Camp (ex officio) What do you know now as a young lawyer that you wish you knew when you were a law student?

Tom Camp

You can write case notes for Brief! Email brief@lawsocietywa.asn.au if you are interested in writing some.

Gemma Swan (ex officio) Is there another young lawyer who you look up to as a role model?

Gemma Swan I would have to say colleague Tawnee Dickinson who somehow completed a Law Degree, went on exchange and is an unrestricted lawyer by age 24. She manages such a high caseload while also having fun and maintaining the work-life balance we all strive for.

Lea Hiltenkamp (ex officio) What do you know now as a young lawyer that you wish you knew when you were a law student?

Lea Hiltenkamp

Marks are so much less important than building good relationships with other people in the profession. It will make being a lawyer much more fun and open up doors that no Seek advertisement ever would.

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How they all rose: The judges’ stories and advice for the next generation of lawyers Justice Gail Archer

Justice Katrina Banks-Smith

Justice Kenneth Martin

For new lawyers, it is hard to imagine the Judges we see in court having been in our shoes, and what being a new lawyer was like for them. So we decided to find out, in conversations with their Honours Justices Katrina Banks-Smith, Kenneth Martin and Gail Archer. Here are their stories and advice for new lawyers.

Where did you start out as a new lawyer, and what was your work life like when you first began your legal career?

Banks-Smith J: I started out in Hobart, and worked there for a year before coming to Parker & Parker in Perth, which later became Freehills. Back then I would basically be given tasks by the partner I worked for along with the hard copy files. There was a lot more drafting, with the letters you wrote being settled by the senior lawyer you worked for — so there was much more sitting down and going through the writing process with an experienced lawyer. I think with emails these days we write in a much more shorthand way, and there’s not necessarily that opportunity to talk about writing, content and enhancing your skills.

K Martin J: Back in 1978 I joined Parker & Parker. In those days you were articled to a principal, and what most of the big firms did was to rotate you through the sections of the firm – conveyancing, litigation, commercial and taxation.

Somewhat curiously after my rotations in 1979 three of the litigation partners were seriously ill. So because it was well-known I loved litigation and wanted

16 | BRIEF DECEMBER 2020

to get back there, I was seconded down and found myself pretty much running the place with support from guys like Rick Cullen and a law clerk called Christopher Steytler.

Archer J: I started out at the Crown Solicitor’s Office, now the SSO. It was an amazing place in that in many ways they were gender-blind. But that transformation had only just happened — when the senior women who were there when I arrived had started their careers, they hadn’t been allowed to do any sexual assault cases, because that would obviously have been totally inappropriate (said sarcastically).

There were six of us who started as articled clerks together, and we formed a cohort that was very supportive. And it was hugely exciting in that we were let loose the moment we were admitted running incredibly important trials, like prosecuting people for taking undersize crayfish (again, said sarcastically).

How did you expect your career to go as a new lawyer, and how right or wrong were you?

K Martin J: I’m a little bit embarrassed about it, but by the time I finished law school I pretty much knew I wanted to be

a barrister, and, if I were good enough, a judge. I wasn’t quite sure how I was going to get there, but I remember being asked by an interviewing partner ‘what’s your career aspiration?’ and somewhat bluntly answering ‘Supreme Court Judge’. That made him rock back. I didn’t realise how that would be perceived at the time; I think it was just my country boy honesty.

Archer J: I had no idea I’d end up a Judge or even where I would start working.

In third year law, when we were deciding where to apply for articles, a series of white middle-aged male lawyers came to the law school to talk about all the fun you could have on boats, and at Christmas parties and long lunches, among other things. But there was also this scruffy guy with messy hair wearing a short-sleeved shirt and chinos who talked about where he worked and who seemed to be a real human. And I thought ‘I want to work with that guy’. So I ended up at the Crown Solicitor’s Office with that lawyer, who later became Magistrate Packington.

Banks-Smith J: I didn’t expect to end up as a Judge at all — it was an organic process, never an aim or ambition. When I started out I just wanted to learn and

become confident in what I was doing.

I was always interested in litigation and problem-solving, and was fortunate to end up in a very busy litigation team with really good matters to work on.

After I made partner, I had children and spent many years working flexible hours. I had no role model in that regard and had to work it out for myself, which the firm let me do. In 2009 some senior barristers I was working with encouraged me to come to the bar. I was happy at Freehills and it was a difficult decision. One day I just thought — if I don’t go now, I never will. And around 2016 people started talking with me about going to the bench.

That’s when I thought ‘oh, this might actually happen’, and I gradually came to the view it was an honour and the right thing to do.

What was the biggest highlight or challenge for you as a new lawyer?

Banks-Smith J: Just being part of a really high-performing team. I was involved in the Bond litigation, which was exciting not because of who it was but because it was high level. And one of the highlights of that was being part of a core group of young lawyers. We became really close friends through that shared experience and still are today.

Archer J: It was an interesting time when I started. When I appeared in the District Court, I would tear my stockings on the rough underside of the bar table whenever I crossed my legs. I wasn’t a rich person, so one day I just wore trousers. And as I was heading down to court I bumped into a senior male prosecutor who said to me ‘Oh Gail, I’m so impressed’. I said ‘What do you mean?’, and he replied ‘Well, you’re wearing trousers to court’. I said ‘What do you mean?’. I then discovered that this was apparently a very courageous (if done deliberately) thing for a woman advocate to do, and some Judges would pretend they couldn’t see you if you were wearing trousers. But I was due in court and had no time to change, so I had to go down terrified in my trousers. Happily the Judge either didn’t notice or didn’t care, so it wasn’t a problem.

Years later, I learnt that in order to maximise your presence as an advocate in court, you need to stand with your feet shoulder-width apart. That’s not comfortable to do in a skirt. So I reflect that, back when women weren’t allowed to wear trousers, this added yet another physical obstacle to our having presence in courts.

K Martin J: For me, the highlight was working as Associate to Sir Ronald

Wilson, working on his judgments together and being effectively his devil’s advocate. That took me to see the opening of the High Court building by the Queen in 1980. As a young lawyer who’d never been out of Western Australia before, it opened up how law was practised in other States. And because the Associates were all working together, I forged very strong friendships, so that now whenever I travel around the country I get to catch up with them, which is brilliant. It also taught me how to survive a grilling by some fantastic legal minds – Sir Anthony Mason, Sir Harry Gibbs, Sir Ninian Stephen and Sir Gerard Brennan.

The big challenge I think was being young and trying to foster a relationship with someone and having a life. Fortunately, I had a very supportive girlfriend, later fiancée and wife, who I’d met at university who basically knew what she was getting into with the law. I remember David Malcolm, when he was sworn in, saying the law was a very jealous mistress (though I don’t know how politically correct that is now) – it will take from you as much as you can spare and probably a bit more.

What do you know now that you wish you had known when you began your career as a lawyer?

Archer J: Ask. And keep asking until you understand. I had no problems asking questions as a young lawyer, but then if I didn’t understand the answer I was usually too embarrassed to say so. And that got me into some very unpleasant situations where I found myself in court completely out of my depth. It was sheer luck that none of those occasions caused a major problem.

Banks-Smith J: I always spent a lot of time worrying about mistakes and that the worst would happen. I’ve learnt that the worst-case scenario so rarely happens, and that you really should just put it to the side and focus on trying to solve the problem you’re dealing with. I wish I’d known that so much of what we do is a cause for positivity — we haven’t created the problem, we’re really there to try to solve it, which can be a really positive thing.

The other thing is to speak up when things are feeling a bit out of control.

I think people were reticent to do that because there was an element of competing with your peers, and not wanting to appear that you weren’t on top of things. And that’s all so counterproductive, because it actually takes courage to say that you don’t understand something or that you’re feeling overborne by too much work. It

takes courage to do that and is to be admired, because that’s the first step in being able to find a solution.

What was the major issue facing the profession when you were a new lawyer, and did we fix it?

K Martin J: In the early 1980s the issue was Australia-wide firms. We had firms with extraordinarily good clients, but because Australia was expanding and the reach of federal power was increasing including through the introduction of federal courts, those clients wanted uniform national representation. That push for national coverage was irresistible, and it now seems to be reflected in the increasing presence of international firms in Australia.

Archer J: Stress. And I don’t think we’ve fixed that, because I don’t think it can be fixed. The nature of the work is such that people will feel stressed. Some people manage to be a lawyer without having an obsessive personality, and without allowing it to conquer their work-life balance. I don’t know many lawyers like that, and I wasn’t one of them. So for someone like me it’s not possible to be a lawyer and not be massively stressed.

I think, though, that the stress eases as you get older and you realise you can relabel it as excitement. But you will not be a lawyer without experiencing quite a lot of adrenalin.

How has the focus on wellbeing changed since you were a new lawyer, and what advice do you have for managing the pressures of working as a lawyer?

Banks-Smith J: I think there has been a real change. I would say there was no focus on wellbeing when I was a young lawyer. You were expected to rock up, do your work, and not make waves. I think the focus on wellbeing is really important.

One of the most important aspects is encouraging people to feel they can speak up. I think people should feel they can speak up, and shouldn’t assume that others are aware of what’s going on. That applies to family commitments too. I recall once when I had young children and was appearing in court, I said to the Judge ‘that time creates a personal difficulty for me’. And I was speaking about a school assembly, which was a really difficult thing to raise back then, because objectively it wasn’t seen to be that important. But I knew the Judge was a father, and that he’d get it, and of course he did. You’ve got to raise these issues for people to do something about it. I also think employers and employees need to be flexible. Flexibility works both ways.

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Archer J: I think the profession has changed in how it attempts to address wellbeing. In 1994 I did a very traumatic trial as a junior over three months. It was horrible, really distressing, upsetting and awful. And at the end, the person who was leading me was very empathetic and sympathetic, and could see the toll it had wrought on me, and on him as well. To deal with it he recommended I take my annual leave. So that is how it was dealt with back then.

Now, I would hope that the person would have the opportunity to get counselling, would possibly be given some days off work to recover, or would be given different work for a period to get some distance. There are lots of support networks, and it’s no longer a career-killer to mention that you’re struggling. And I was really struggling.

What advice would you give to new lawyers appearing before you?

K Martin J: As Clint Eastwood would say, a man’s got to know his limitations.

Appearing before the Supreme Court is not the sort of thing one does lightly unless you’re very well prepared. So be cautious. But that said, don’t psych yourself out. Remember that it’s all about the task — there’s a problem to be solved, we all have our different roles, and the question is how do we solve the problem in the most efficient, sensible and cost-effective way?

Judges are usually faced with a series of closely-spaced hearings and are searching for answers in all of them. So we’re really grateful for someone who’s prepared and who’s helpful.

And remember that the most important question to be ready for is ‘what do you want?’.

Banks-Smith J: The first thing is that it’s completely normal to be nervous, so don’t think about that as a negative. And don’t worry too much about things like knowing when and where to stand — that will all come and be second nature over time. I just want new lawyers to focus on what they’re telling me. It’s about substance over form. So just concentrate on what you need to tell me.

A second thing is being as prepared as you can be. And have your materials organised, because you’ll feel more confident if you can find things.

Finally, always treat people as you’d want to be treated. Be polite and use your common sense.

Archer J: Be prepared. You can be ignorant about some of the law, you can have no physical presence whatsoever, 18 | BRIEF DECEMBER 2020

but if you’re prepared no one will mind those other things.

And one other hot button point. I loathe it when people make allegations of unprofessional conduct against their colleagues, and then claim not to realise that’s what they’ve done. That makes me crazy.

What initiatives have you been a part of that were directed at new lawyers?

Archer J: It’s so satisfying to be involved in advocacy training where I can pass on what I’ve learnt. Because some of it is tricks and they’re so easy to tell people about. And how excited the young lawyers get when you show them how it can be done, they have a crack at it, and they get it.

The other thing I love about teaching advocacy is watching their courage in standing up in front of a group and coaches, knowing everyone is watching and waiting to tell them what they did wrong. Having things go wrong but continuing to do it anyway, I admire that courage so much.

Banks-Smith J: I’ve always enjoyed being a coach at the advocacy weekends.

I get a lot out of it and I think the young lawyers do too. I think it’s a good opportunity for young lawyers to see that many senior barristers and Judges are accessible, friendly and want to help.

What do you think is the role of new lawyers in the profession?

K Martin J: When I was the Law Society President, it was pretty obvious to me that massive amounts of energy came from the young lawyers. So if you ever had an urgent requirement for input on some piece of legislation that the Law Society was given 24 hours to comment on, the young lawyers were always my first port of call.

They’re fantastic for collegiality, networking and all the good things that come from what is still a relatively small legal profession.

Banks-Smith J: I think someone in their late 20s is a really talented lawyer who’s got a good body of experience behind them, and also enthusiasm and all of those things. I don’t think the structures within law firms have necessarily moved with the times, so I don’t think the opportunities are present for new lawyers in the way they used to be, or the opportunities are different.

I hope that within firms young lawyers are still given responsibilities, a role where they can develop supervisory skills. I don’t think youth is a bar or a negative;

I think that young lawyers have a lot to offer and personally I’ve always enjoyed their enthusiasm and desire to learn.

What are the key tips you would give to new lawyers who are just starting out?

K Martin J: Everyone is different, so I can’t be prescriptive. But I think you need a certain level of physical fitness to survive. I ran my first City to Surf in 1978 as an articled clerk, and I did a half marathon last year. I think you’ve got to keep yourself healthy, in whatever way works for you.

I think also don’t take it too seriously — law really is a marathon not a sprint.

The one marathon I ran in my life in 1980 taught me a lot about life and law being a race against yourself, and the highs and lows you feel within. So try to keep a sense of perspective and a sense of humour. Try to be able to laugh at yourself and release tension that way. That’s a start to keeping yourself grounded.

Banks-Smith J: Try to enjoy it. People can get so absorbed in trying to work hard and show their capacity that you forget to enjoy the fact you’ve finished your studies, and that you’re out in the world meeting real clients with real problems. It’s a really exciting time, and this is what you’ve trained to do and what you might want to do for many years.

So just step back from the pressures sometimes and try to enjoy it and the people around you.

And remember that you’ve gone into this profession basically to help people. Try to get some satisfaction out of the fact that our role really is to solve problems and to protect people from unfairness.

Archer J: Guard your reputation, both for ethical conduct and competence. If you’re acting for someone and feel you could cross a line, you should not be acting.

And if someone throws a file at you and says ‘you’re in court in 5 minutes’, you’re risking your reputation.

And remember that you don’t have it nearly so bad as others around the world.

We take ourselves so seriously and we beat ourselves up so much when we make a mistake; we feel the world is going to end. I’ve found it very important to remind myself throughout my career that ok, I had a bad day in court, I feel humiliated — but I can drink the water coming out of my tap.

Mock Trials: Budding young lawyers – where the inspiration began…

I remember the awe I felt when I first appeared in a matter in the Supreme Court. The building’s heritage and grandeur added to an already heightened sense of importance to the proceedings.

Oddly, the feature that seemed to have impressed me the most was the fact that the tables had Supreme Court branded drink coasters. To my adolescent mind this, more than anything, was the sign of a sophisticated establishment worthy of respect. Even though we were only playing at being lawyers, it was nerve wracking and exhilarating. I can’t remember how I performed, but I do remember enjoying the rush of being on your feet and the judge’s kind feedback.

While many people may point to the TV show Suits as the inspiration behind them studying law, I believe it was my experience at the Law Society’s Mock Trial competition that evening, long ago, which helped to convince me to study law. Indeed, the Law Society’s mock trial competition must be a great recruiter if my team was anything to go by. From my team there were another four people who studied law, though only two of us now practice. Perhaps for some the simulation is more enjoyable than the reality!

The Law Society has run the Mock Trial competition since 1987. The program is run for high school students and involves, to the surprise of nobody, a mock trial of a fictitious legal matter. The trials can be civil or criminal matters and see two sides present their cases. Apart from the volunteer judge, the students make

up the key players in the Court: counsel, solicitors, witnesses and even the judge’s associate and the orderly. Each student is scored for their performance against a marking rubric by the volunteer judge and the scores are tallied to decide the winning team.

Last year saw 1,080 students from years 10, 11 and 12 take part in 112 teams from 56 schools. They were helped by 148 legal practitioners and law student coaches. This requires a lot of putting together and the Law Society does a great job to make it run smoothly with the help of volunteer judges. Coordinating those numbers cannot be easy and the competition is a testament to the Law Society. It helps school students get a sense of what a trial is like and breaks down the mystery of the law.

Having enjoyed the program as a student I felt obliged to help out by acting as a judge when I saw a call out for volunteers.

Luckily, I have found them to be a lot of fun. The teams are full of bright and entertaining students and the cases are engaging scenarios. The Law Society also ensures that your first trial is conducted as a panel of two judges, so that you have a person who has experience judging mock trials with you. This takes some of the pressure off and is a great way to meet other people in the profession. An added bonus for volunteers is that you receive CPD points for your help!

While I have not volunteered as a coach, I know how integral they are to the competition. I was lucky enough to have a great practitioner volunteer to coach my team in high school who helped us immensely. We stayed in touch and he also helped me as I began my study of the law and I now get to call him a friend and mentor.

By Thomas Camp Solicitor

The Law Society encourages anyone who wants to help to send in an expression of interest or register to volunteer. You won’t regret it! Previous participation is not required and all volunteers are eligible to claim CPD points for their efforts.

Information sessions are also run to explain the competition in detail for those interested. Please contact the coordinator at mocktrial@lawsocietywa.asn.au or on (08) 9324 8604 to register your interest.

1987 Mock Trial

1990 Mock Trial

19 1997 Mock Trial

GOLDEN GAVEL A Stage to be Heard and Seen

By Lyle Swithenbank Solicitor

Golden Gavel 2019 Left to Right: Corey White, Brennan & Co; Kellie Hayman, Norton Rose Fulbright; Brandon McEvoy, Ashurst; Jason O’Meara, Pragma Lawyers; Mara Barone SC, Claudia Carr, Herbert Smith Freehills; The Hon Peter Quinlan, Chief Justice of Western Australia; Greg McIntyre SC, President of The Law Society of Western Australia; James Constantine, Clayton Utz; Briony Whyte, Jackson McDonald; Angus Paterson, MinterEllison; Holly Gretton, King & Wood Mallesons; Ebony Back, Allens

It was the year 2000, the Y2K Bug had been thwarted, the nightclubs were playing Savage Garden, 3 Doors Down and Destiny’s Child, oversized sunglasses and low hanging jeans were all the rage. However, most importantly, it was the year of the inaugural Western Australian Golden Gavel competition.

If you are not aware, the Golden Gavel is (probably) the most prestigious law award that a junior lawyer can win. The Golden Gavel, or “The Gav” as it is more commonly referred to among past winners, is the ultimate test of a junior lawyer’s quick wit and public speaking skills. It is also the perfect way to destroy one’s career before it really begins or on the flip side, turn your LinkedIn profile into a “must follow” (@LyleSwithenbank for

those playing along at home).

The Gav pits contestants against one another in a 5-minute public speaking competition. The topics conceived by the YLC are delivered at close of business the previous evening. Upon receipt of their allocated topic, participants must formulate a speech to convince two to three extremely overqualified judges that they are in fact the funniest (bravest) junior lawyer in WA.

20 | BRIEF 20 |DECEMBER BRIEF DECEMBER 2020 2020 1997 Mock Trial

Golden Gavel 2013

I reached out to Simon Freitag SC. He is considered one of the true pioneers of the Golden Gavel competition in WA. His Gavel resume includes: •

entrant in the 2001 and 2002 WA Golden Gavel Competitions;

•

state and national Golden Gavel winner in 2002; and

•

Golden Gavel judge in 2018 (he did a fantastic job picking the winner that year, if I do say so myself).

It was fantastic to not only correspond with Gav royalty but to also get an insight into how the event has evolved from its relative inception to its current form (before Covid-19 went and ruined it). Mr Freitag provided a snapshot of what it was like in the early 2000s compared to how he found it as a judge: “Everyone plays it completely for gags from start to finish now whereas at least in the first year there were a couple of people who tried to mix in serious oratory with jokes and missed the mark entirely. Also, the year I judged there were a lot of “legal in-jokes” about subjects within firms and about other large firms which we didn’t have at the start of the competition. Where we worked was not really mentioned in those years and the topics were not as legally focussed, in fact some of them were not legally related at all!”

In my experience, I have witnessed nothing but comedic speeches and such serious oratory as Simon has alluded to, has not found a place in the modern competition. Mr Freitag informed me that the Gav now is much more risqué and that some of the jokes put forward by the participants in recent years would not have been acceptable in the early

Golden Gavel 2009

days of the competition. Simpler times indeed. Let’s be honest some of the jokes in recent competitions have been flying close to the proverbial sun in terms of acceptability but as the old saying goes, c’est la vie jusqu’à ce que tu sois viré.

Simon provided some advice for anyone thinking about participating in future Golden Gavel Competitions: “Keep it clever (you have a smart audience in the Gavel) and keep it clean if you can. Go for as many gags as you can in the short time that you have. If it is going well, pause for the laughs and applause before you go the next bit. Two reasons; one, that is an amazing moment when everyone is laughing and you have the room with you and second, each joke is more effective if it can be heard! If you “miss” on one move on quickly to the next one…”

Some sound advice from the GG GOAT. Given all my experience as Gav winner 2018 (have I mentioned that yet?), I have also provided some (unsolicited) sage advice: “Spend less time tearing other firms down and more time on making classic gags about working as a junior lawyer, selfdeprecating humour and “oneliners”. It is all well and good to make jokes about others, but make sure that you stay on topic.

Also, delivery is everything!. I just thought I would spread a bit of knowledge for the next generation.”

Gavel win. Like many transcendent superstars, he decided to retire from his chosen profession after reaching the pinnacle of success (cc. Michael Jordan).

However, not unlike MJ’s return from baseball, Mr Sutherland returned from politics after a year out of the game, hungrier than ever to advance his legal career. He announced his return to the profession in a simple fax, merely stating the phrase “I’m back” and then subsequently removed his out of office email notification. My sources indicate that a documentary is in production about Mr Sutherland’s transition between law and politics and then back entitled “The Last Bants”.

All in all, the Golden Gavel is a great way for junior lawyers to raise their profile. It takes courage to stand up in front of 300 of your peers and deliver a speech that you prepared less than 24 hours previously. I found it to be a great launching pad for my career.

The Gav has been a YLC staple for two decades and unfortunately, given the restrictions imposed on the world due the COVID-19 crisis, a fresh Golden Gavel winner was not crowned in 2020. We anticipate that in 2021, the Golden Gavel will return bigger and better than ever, until then entertain yourselves.

I also managed to track down Daniel Sutherland, the winner from 2017 (the first leg of the Back2Back 17/18 GG Dynasty). Do two people make a dynasty? I will conduct further research.

He briefly left the law after his Golden

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21

ADVOCACY WEEKEND Building Advocacy Skills with the Best

y Weekend 2016 Advocac

A little over 25 years ago, the Young Lawyers Committee decided to organise the ‘Advocacy Workshop Weekend’ to take place in late March 1995. The aim, as recorded in the Committee’s 1994 Annual Report, was to ‘provide, through workshop forums, practical training for young lawyers in preparing and running trials’.

The initiative was born from the success of the 1994 Advocacy Dinner Series, which had seen members of the Bar and Judiciary presenting at the Matilda Bay Restaurant on the finer points of forensic advocacy.

Since then, the Weekend has variously been held in Busselton, Pemberton, Mandurah and Perth.

More than two decades later, some 30 to 40 new lawyers continue to make their way down to the Children’s Court each year to learn from some of Western Australia’s finest advocates. As one participant put it last year: ‘it was like being thrown in the deep end, but in the best way’.

Importantly, the Weekend is an acceptance that advocacy can be taught, and that new lawyers can be effective counsel.

The first of those ideas is surprisingly new, and only really became mainstream through the efforts of forensic advocacy educators like the Hon George Hampel AM QC and her Honour Judge Felicity Hampel SC. The second appears to be going in the other direction, with young lawyers — particularly at larger commercial firms — now increasingly unlikely to appear in 22 | BRIEF 22 |DECEMBER BRIEF DECEMBER 2020 2020

2014 Advo cacy Week end

court early in their careers. No longer are freshly admitted lawyers handed a file and told to prepare for trial.

The coaches at the Weekend, though, appear firmly of the view that it is never too early to learn. Generous in their advice and feedback, and insightful in their identification of precisely what their students could do better, the opportunity to appear without any real consequences before senior barristers and Judges is invaluable.

Their evergreen tips — stand shoulderwidth apart, speak slowly, don’t drive the lectern like a temperamental jet ski, and maintain eye contact — make an immediate and compelling difference each year to young lawyers’ ability to persuade. And the less obvious individual guidance about stance, structure and style, too, helps each young lawyer develop their own approach to presenting their applications and examining their witnesses.

The Weekend is not just about what happens in the courtroom, though. It is also an annual opportunity for new lawyers to meet their advocacy-inclined counterparts in the profession. Through lunches at the Court (Hotel), interactive group vocal classes, and a gala dinner, the Weekend encourages the kind of collegiality and conferral that will always serve the young advocates well.

That said, the social side may have been a little tamer in recent years. A wrap-up written for Brief of the 1998 Advocacy Weekend noted: On the gossip front, reports were largely devoid of scandal, save for the usual post-dinner soirées, postsoirée romantic strolling along the beach and the like … We did hear that they gave the local club scene in Busselton a bit of a kick-start.

By Chris Burch Lawyer

cy Weekend 2007 Advoca

Perspectives on sexual harassment and the legal profession Advocating on Important Issues

By Aleksandra Miller, Solicitor

This edition of Brief marks 40 years of the Young Lawyers Committee.

It has also been 40 years since the release of the film 9 to 5, which shone a spotlight on workplace sexual harassment and sexism; 40 years since the Equal Employment Opportunity Commission in the USA issued guidelines confirming sexual harassment was unlawful; and 40 years since Australia signed the United Nations Convention on the Elimination of All Forms of Discrimination Against Women.

But this year’s revelations regarding the conduct of Hon. Dyson Heydon, the ongoing prominence of the #MeToo movement, and recent surveys on the extent of sexual harassment in the legal profession show that some things have not changed so much since 1980.

The Women Lawyers of Western Australia’s 2019 sexual harassment survey found that 72% of the 500+ respondents had experienced sexual harassment in the workplace, and that the most commonly cited perpetrator was “legal partner”.2 As the #MeToo movement has made very clear, it remains the uncomfortable truth that most, if not all women, in your life have experienced sexual harassment or assault in some way shape or form during their lives. While I have been lucky enough not to have personally experienced sexual harassment while working in law, I am certainly no stranger to it.

Perhaps my earliest memory of experiencing sexual harassment was at the age of around 13 or 14, from an older man in a position of authority. I also remember getting on a bus when I was about 17 or 18 and the bus driver saying to me jokingly that I was not allowed on

the bus because I was “too beautiful”.

I feigned feeling flattered, mumbling an awkward “thank you” (a situation far too many women are familiar with), and upon realising I was the only passenger on the bus, felt not only uncomfortable, but physically unsafe for the duration of the trip. And of course sexual harassment and sexism was a common occurrence while working in retail in a liquor store during law school, ranging from being told to smile by older male customers to customers yelling “show us your t*ts” from the drive through. Perhaps with the exception of the latter, I am sure that these men truly believed that they were handing out compliments, all the while actually making me feel uneasy and unsafe.

Like I’ve said, I have been lucky enough not to have personally experienced sexual harassment in a legal workplace,3 so I can only imagine how much more horrendous such experiences would be if they came from not only a person who you saw every day at work, but especially a line manager or partner, where any response to the harassment experienced would no doubt be carefully mediated by the fear of damaging your career prospects.

My personal experience, and the experiences of countless other women, shows that the fight to end sexual harassment is far from over, and highlights the importance of greater education on sexual harassment as well as real consequences for perpetrators. It also highlights the continued relevance of the feminist movement.4 Sexual harassment is not simply bad behaviour – it is a symptom of a pervasive attitude in society that women are primarily objects of male sexual gratification, existing to please men rather than as independent individuals free to pursue their own dreams and desires.

The experience of sexism and sexual harassment can also severely impact women’s mental health, and contribute to women leaving the profession altogether.

It is now 2020, but sexism and sexual harassment continue to be unacceptably prevalent. The legal profession must take a strong stand against sexism and sexual harassment, as a commitment to gender equality and as a vital step to retain female talent and improve the lives of female lawyers. It is clear that more needs to be done in this space.

The Young Lawyers Committee is currently developing a discussion paper on best practice guidelines for the legal profession which include recommendations for addressing workplace sexual harassment.

Suggested approaches include implementing clear, “no-tolerance”, trauma-informed workplace sexual harassment policies, implementing training on sexual harassment for all staff (including bystander training), and promoting a workplace culture where staff feel comfortable about reporting that they feel unsafe or have experienced sexual harassment.

If there is a commitment to such measures, perhaps sexual harassment in legal workplaces will one day become a thing of the past.

Endnotes 1 Aleksandra graduated from the University of Western Australia in 2016 with a Bachelor of Laws (First Class Honours) and a Bachelor of Science. She has been working at the State Solicitor’s Office since 2018. The views expressed in this article are solely that of the individual and are not representative of the views of the State Solicitor’s Office.

2 Women Lawyers of Western Australia, WLWA Sexual Harassment Survey and Submission to ALRC, available at: https://www.wlwa.asn.au/our-projects/workplace-equalityreform-and-policies/workplace-harassment-in-the-legalprofession-survey/ 3 And I hope I never will! Though I note that it has only been 4 years since I graduated from law school.

4 For clarity, I am not suggesting that feminism only has relevance in modern Australia in this context.

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23

The Power of networking

By Sean Gomes Associate

Networking is an integral component in the development of any young lawyer’s career, and connecting with fellow practitioners has numerous professional and social benefits.

The YLC leverages the power of networking in many ways, for example, through social functions, sporting events and committees.

Young lawyers working in smaller firms might find they lack the same networking opportunities and resources, not to mention young lawyer co-workers, that might be found in larger firms.

Recognising the increased potential for isolation, the Young Lawyers Committee established the Small Firms Network, an initiative to encourage small firm young lawyers to develop networks outside of their firm and enhance collegiality within the profession.

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The Small Firms Network has held a number of networking events throughout the years, including an event in mid-2019 at the Public House which drew a crowd of over 30 ‘small firmers’. Unfortunately, no events have yet been held in 2020 due to the COVID-19 lockdown and the resulting compression on social events that occurred once restrictions lifted. However, it is anticipated that 2021 will see the return of more in-person Small Firms Network events.

The Young Lawyers Committee continues to encourage small firmers to join the Small Firms Network and enjoy the benefits of staying connected with colleagues in the profession.

The Small Firms Network is open to young lawyers (under 35 years of age or less than five years post admission experience) working at small firms (fewer than 20 fee earners). If you would like to join the mailing list, please email younglawyers@ lawsocietywa.asn.au.

Volunteering to make a difference Ready, Willing and Able

By Briony Whyte, Solicitor

A review of the Young Lawyers Committee’s annual reports indicates that the YLC has long been involved in the promotion of social justice and engagement with the community, not just the collegiality and networking that it is so well known for...

Those ‘Lawyer Visits to Schools Network’ regularly advertised in your Friday Facts mailout are a product of the YLC of 1981, and the YLC of 1988 worked with the Youth Legal Service to set up a program for young lawyers to attend police interviews with young and vulnerable interviewees to ensure police impartiality. Mark Gerus (barrister at Francis Burt Chambers) fondly recalls – upon being shown a photograph of him that appeared in Brief - volunteering as a student at the Citizens’ Advice Bureau’s Mobile Legal Service (now Law Access) during Law Week in his second year of university. The Mobile Legal Service volunteer roster was stocked by YLC committee members and other junior lawyers recruited by the YLC. While the role may not have landed Mark his (then) dream job at the Legal Aid Commission, it did help him secure a memorable clerkship the LAC’s criminal law section and inspired him to pursue advocacy.

Things are not so different today. This year’s YLC has been involved in a variety of social justice activities including engaging in the development and support of a Human Rights Bill, and many of the individual committee members hold volunteer positions in the community or undertake pro bono work.

If you are interested in volunteering in the legal profession your options are many and varied; there are currently at least 36 Community Legal Centres (CLC) operating in Western Australia (you can view the list, and see which ones are recruiting, here: www.clcvolunteers.net.au).

But why volunteer? What’s the benefit to you as a young lawyer? Other than the obvious altruistic reasons, volunteering offers two drawcards for law students and young lawyers: improved mental health and improved job prospects.

In a profession that suffers mental health problems in pandemic proportions and requires its members to lead semi-sedentary lifestyles, volunteering may offer some respite.

Numerous studies from around the world have shown that volunteering offers many health benefits including increased physical activity, improved mental health, better sleep, and

longer life expectancy.1 Further, volunteering broadens social circles, introduces volunteers to a larger circle of friends and enhances ties to the community, resulting in volunteers (particularly those who have been volunteers for an extended period) reporting better perceived happiness than those who do not volunteer as regularly, or at all.

Volunteering also offers a fantastic opportunity to gain experience and develop legal skills whilst giving back to the community. With many law students seeking experience in the legal industry, volunteering can be an invaluable experience. No matter where you choose to volunteer, you will gain transferable skills to highlight on your resume (or during that coveted clerkship interview). As a volunteer you won’t necessarily be stuck at a computer all day developing a chronology of correspondence for a client you’ve never met; you’ll be in the thick of it, preparing court documents, assisting with drafting, interviewing clients and much more. Noelle Yip, Juris Doctor student at the University of WA and volunteer at the Consumer Credit Legal Service (CCLS) says of her work with the CCLS: “It’s a great experience! CCLS runs a telephone advice line which is run by their volunteers.

The volunteer paralegals are the first and usually sole person who communicates with our clients. While it was initially quite daunting to talk to clients on the phone, take their instructions, draft advice and deliver advice, it is an amazing learning experience and is also quite fun. I would definitely encourage others to consider volunteering at a community legal centre. It is great practical experience that you are unlikely to gain elsewhere and it’s also fun and rewarding at the same time. The solicitors at CCLS are really encouraging and supportive and understand that we're all trying our best!”

Volunteering can also lead to job opportunities down the line. Richa Malaviya, a lawyer at Djinda Service (the Aboriginal Family Violence Prevention Legal Service run by the Women’s Legal Service in conjunction with Relationships WA) notes that the legal profession is ‘all about your reputation: even getting admitted requires

someone else to step forward and stake their own reputation on you’. As noted above, a volunteer position will introduce you to many people you may otherwise never have met and is a fantastic way for young legal professionals to develop their networks.

Those people may later be hiring for a position, or know someone who is. It can’t hurt that they will already have observed the skills that make you a standout for the role and may be willing to recommend you for it. Richa ought to know: she was a student volunteer with the Women’s Legal Service during university. After she became admitted, Richa worked with the Aboriginal Family Law Service in Port Hedland until recently, when a colleague from her time with the Women’s Legal Service heard that she had to relocate to Perth for personal reasons and suggested she apply for the position for which Djinda Service was hiring. Her previous experience as a volunteer meant that the staff knew her and she had the required skills, so she was a perfect fit for the position and a natural candidate.

We asked Richa to tell us why she became engaged in volunteering during law school and how it has helped her land her dream job. Her key reasons for becoming a volunteer included the obvious; to gain experience in the industry, as well as an opportunity to apply her skills and knowledge in a pressure-free environment and to develop an idea of where she wanted to work after graduation. Of working in a social justice role in a CLC, Richa says ‘you meet people who are going through the worst period of their lives. Talking to the clients where they are sharing their stories and experiences, many of which haven't been told before, gives you insight into things you might not have been exposed to before. It helps you to develop as a person, build empathy and obtain an understanding of how our lives connect despite our differences’.

Endnotes 1. Judy Looman Swinson ‘Focusing on the Health Benefits of Volunteering as a Recruitment Strategy’ (2006) XXIV(2) The International Journal of Volunteer Administration 25, 26–27.

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WA Case Notes Working for Social Justice – Overturning a wrongful conviction

In a sea of Jim Beam cans: my once in a lifetime opportunity working to overturn a wrongful murder conviction Back in 2018, as a fresh-faced graduate at Corrs Chambers Westgarth, I heard the firm would be representing Scott Austic pro bono in an appeal against his conviction for wilful murder. It was the kind of ‘innocence project’ matter that lawyers often dream to work on: after being charged in 2007 and convicted in 2009, new issues had been uncovered in Mr Austic’s case that cast doubt on his conviction. His whole case had been referred by the AttorneyGeneral back to the Court of Appeal.

I immediately emailed the responsible partner Kirsty Sutherland and asked to be involved in any way I could. To my surprise I was put on the matter, together with Corrs Senior Associate Melanie Baumanis, criminal lawyer Dr Clint Hampson and Senior Counsel David Grace QC. For the next year work on Mr Austic’s appeal was almost all-consuming. We dove deep into the evidence from the original trial, pursuing hundreds of photographs of the crime scene and volumes of trial transcript, watching hours of police interviews, briefing new expert witnesses and preparing the appellant’s case and appeal books. So often in litigation you become a quasi-expert on the facts of your case, and this matter

26 | BRIEF DECEMBER 2020

was no exception: I could talk at length about SES searches, DNA sampling techniques and Winfield Blue cigarette packets. I spent weeks immersed in the intricacies of the production, time stamping and sale of Jim Beam cans. We travelled to Boddington where the murder was committed to better understand the crime scene and interview new witnesses. We also visited Mr Austic in prison to take his instructions. By that point he had been in jail for 11 years.

The work on Mr Austic’s case was certainly not easy. The task ahead often felt crushingly immense, the events too long ago, the time before the appeal too short. This was particularly as our case involved allegations that some evidence against Mr Austic has been planted, and so required unpicking and secondguessing all the evidence that was part of the original trial: a timeconsuming and often frustrating task. I was also deeply saddened by the violent and untimely death of the victim Stacey Thorne, and would sometimes be jolted by the realisation that the photographs I was looking at were not just pieces of evidence but depicted a real woman, no doubt deeply missed.

However, I believed in Mr Austic’s case and that his conviction had been wrong. I felt that our work was gravely important and I cared about the outcome. This made the usual stresses and late nights of the case easy to handle, and I was eager and happy to juggle work on Mr Austic’s case with other matter commitments. This was a significant lesson on how to

By Sasha Dawson Legal Adviser

have a rewarding and meaningful career: work on things that you genuinely care about and work won’t feel like ‘work’. It’s a lesson I’m so glad I learned in my first years in the profession.

The appeal was more akin to a trial, running for 7 days and with numerous witnesses giving evidence in person. It went by in a blur. It was the first case in which I instructed at the bar table, although ‘instructing’ might be putting things a little too high, given how junior I still was. It was thrilling seeing our counsel David Grace go head-to-head with the formidable DPP Amanda Forrester, and to witness the incredible speed at which the appeal judges understood the case.

Even more thrilling was the news, nearly 10 months later, that we won. In May 2020 the Court of Appeal allowed the appeal, quashed Mr Austic’s conviction and ordered a retrial. He was granted bail some days later, free from custody the first time in over 11 years to see his now almostadult children.

There’s still a long road ahead for Mr Austic, but I am grateful for the opportunity to have contributed in some small way to righting this injustice. No doubt it will be a career highlight for me for many years to come.

This article was written before Mr Austic’s acquittal, following his retrial, on Friday, 20 November 2020, and the release of the Court of Appeal’s suppressed reasons in Austic v The State of Western Australia [2020] WASCA 75.

Meet PAST CHAIRS Encouraging education as well as collegiality in the legal profession – Rick Cullen (1980)

represented, through bodies such as the YLC.

1980 Rick Cullen

1981 1986

Rick’s early involvement in the YLC was instrumental in taking the YLC’s education offering to the next level.

He was a leading figure in the establishment of the Continuing Legal Education programme.

This included organising two lectures on mining law and bankruptcy law which were attended by over 200 members of the profession.

1982 Penelope Keeley

1985 Derry O’Dea

1987

The YLC is known for putting on a diverse range Kevin O’Sullivan of social events which allow members of the profession to mingle and let their hair down a bit.

According to Rick: “These events build David Monaghan an important bridge between the Law Society, of which the YLC is a subcommittee of the Law Society, and the wider profession.” Annabel Richards

1989

1992

Rick can profess just how life changing such an event was for him, as it was at a Law Society Christmas party where he met his wife Bettina.

The important role of the YLC – John Chaney (1981) Young lawyers make up a significant proportion of the profession, they need to be heard and

1996 Shaun Temby

1998 Stephanie Unwin

John Chaney

1983 1986 Laurence Iffla

1986 Peter Young

1988 Rosalinda Fogliani

1990 Diane Sinagra

1994 Suzanne Derrick

1997 Rabia Siddique

2000 Alison Robertson

“Young lawyers are real movers and shakers who are willing to discuss and tackle hard questions facing the profession, including workplace bullying, sexual harassment and working conditions. The YLC is the voice of young lawyers on these issues and need to be heard, as they are the future of the profession.”

The value or importance of being part of YLC – A personal perspective from Rabia Siddique (1987) “This leadership opportunity, the many accomplished and passionate young and more senior lawyers that I met and built relationships with, and the chance to have and be a voice, and a diverse one at that, for the profession and, along with my colleagues and fellow Committee members, a voice for my generation of lawyers, gave me the confidence, knowledge and focus to continue to follow the path I had set for myself and reinforced to me that I was part of something much bigger that could contribute towards the greater good of our society, systems and legal frameworks within which we exist.”

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Strengthening the ties between the YLC and the Law Society Council – Adam Ebell (2013) Adam contributed to strengthening the ties between the YLC and the Law Society Council. This ensured that there was a consistent dialogue between the two and that the voice of young lawyers was heard on issues affecting the profession. While Adam was convenor, he secured a permanent position for a young lawyer on the Silk Consultative Committee: “This is because young lawyers can contribute valuable views regarding members of the profession, which they have worked with and who they consider suitable to be appointed as senior counsel. Given that senior counsel take on the important responsibility of being available to advise lawyers in ethical conundrums, it is important that they are approachable to young lawyers just as much as those who have been practising for decades.”

Career advice for young lawyers – Zoe Bush (2019)

2002 2005 Jacquie Kubacz

2007 Marie Botsis

2010 Matthew Keogh

2013 Adam Ebell

2016 Alex Biddulph

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2019 Zoe Bush

Alex McLean

2006 Natalie Wigg

2009 Kate Cook

2012 Adam Ebell

2014 Emma Cavanagh

Zoe was a guest speaker at the YLC’s Careers Uncut event in October this year.

The purpose of the event is to showcase to university students and early career lawyers the many different legal jobs the Western Australian legal profession has to offer and the various pathways to get there.

Following a diverse career pathway (including working as a solicitor at the State’s Solicitor's Office, lecturing in law and a fellowship in America), Zoe is now a solicitor at the Environmental Defenders Office (EDO).

She is passionate about climate change and particularly how corporate litigation is used to shift corporate behaviour on climate change:

“Graduates and young lawyers should consider what they Sarah O’Brien-Smith are passionate about, and how they can integrate that into their careers. If that does not align with the traditional Jack Carroll career ‘roadmap’, I encourage young lawyers to not be afraid to take the path less trodden or ‘prestigious’, and to seek out mentors that can provide guidance.”

2017

2020

Catalyse Engagement and Retention of Legal Professionals Report In September 2014, the Women Lawyers of Western Australia launched the 20th Anniversary Review of the 1994 Report of the Chief Justice’s Gender Bias Taskforce Review.

Following a review of the report, on 23 August 2016, Council adopted the Final Directions Paper setting out a series of recommendations aimed at the advancement of women in the legal profession.

has the lowest score at 47 out of 100, representing an average rating slightly below good.

The survey found overall, there are five critical success factors to address to strengthen engagement and retention across the legal profession:

1.

•

The report set out action that had been completed to implement the recommendations in the Final Directions Paper and action that would be ongoing which included funding from the Public Purposes Trust for a Retention Study conducted by Catalyse.

• •

A survey was conducted from February 2020 for a period of a month and was supported by the Women Lawyers Association and the Western Australian Bar Association.

2.

In a survey with 488 legal practitioners across Western Australia, they indicated that they have high levels of workplace engagement. Their work is challenging, interesting and engaging, they have positive relationships with line managers, receive excellent continuing professional development (CPD) and have high selfefficacy.

Legal professionals generally report positive wellbeing, with 80% rating their overall health as good, very good or excellent. The Wellbeing Index Score for general health is 60 out of 100.

Wellbeing scores are slightly lower for social relationships, financial health, work and mental health. Diet and exercise

•

•

3.

•

• •

programs to support graduates, current and emerging leaders, and those seeking career advancement.

4.

•

Leadership Advocate for improvements in workplace culture and diversity to address out-dated norms, values, attitudes and behaviours.

Modernise business models.

Develop and promote best practice HR policies that cover workplace culture, parental leave and flexible workplace arrangements.

•

5.

Diversity and inclusion Strive for zero discrimination so all legal professionals feel they are treated equally and fairly.

Identify and promote role models.

Provide improved CPD and mentor

LEAVING A

Improve overall quality of life; aiming for a state of complete physical, mental and social wellbeing. This is a foundation stone for workplace engagement.

Encourage the adoption of flexible working practices to improve worklife balance.

Accountability

•

Collect and report on workplace engagement measures to hold the legal profession and individual managers accountable for following best practice policies and practices.

•

Advocate for fair and reasonable workloads and targets to be set for legal practitioners, adjusted for parttime or casual hours.

Leader-Member Exchange Raise awareness, understanding and acceptance of flexible workplace arrangements (FWP), how FWP works and the benefits for organisations, employees and clients.

Advocate for leaders to provide employees with regular and encouraging feedback so they feel appreciated, respected and supported, professionally and personally.

Health and wellbeing

The Catalyse Engagement and Retention of Legal Professionals Report is published on the Law Society website for viewing at https://www.lawsocietywa.asn.au/ wp-content/uploads/2015/10/CatalyseSurvey-How-to-engage-and-retain-legalprofessionals.pdf The Law Society would like to thank the Public Purposes Trust Fund for funding this survey.

LASTING LASTING LEGACY LEGACY

HOMELESS

WILL HELP

DOGS

IN WA

29

What you seek is seeking you" Rumi

Woman Lawyer of the Year: Interview with Kate Offer Senior Lecturer Kate Offer, winner of the Women Lawyers of Western Australia's Woman Lawyer of the Year for 2020, and Director of Disruption at University of Western Australia Law School shares what has shaped her career.

By Sara Pearson Solicitor, Consumer Credit Legal Service (WA) What does winning Woman Lawyer of the Year mean to you?

It means a lot although I have to say I was genuinely surprised. I didn’t have an acceptance speech prepared which was probably very obvious to the people present! I am glad I remembered to thank the Dean of the Law School, Professor Natalie Skead, who has had a huge impact on me both personally and professionally as well as my husband, Tom, who I deem an honorary woman because he’s such a feminist and an equal partner. I suppose the biggest thing is that the award acknowledges the role university lecturers play in preparing lawyers for legal practice. Legal education is the foundation of a legal career. If we do our job well we are setting up fundamentals for women going into the profession. In addition to that, you could also say that we are role modelling that women are meant to be here as a part of the profession.

Can you take us through your legal career and move into academia?

I am a University of Western Australia (UWA) Law School graduate, Class of 1991. In my first year out of university I was associate to the late Justice Geoffrey Kennedy, Senior Puisne Judge at the Supreme Court of Western Australia and

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a former chancellor of UWA. That year Justice Kennedy was the Chairman of the Royal Commission into Commercial Activities of Government (the WA Inc. Royal Commission), so, after 1 month at the Supreme Court, I went to the Royal Commission.

I then completed my articles at Corrs Chambers Westgarth. The firm itself had a nice culture but I realised fairly quickly that the corporate world was not really for me. After getting admitted I ended up at Youth Legal Service (YLS) and was there for about 2.5 years representing young people in the Children’s Court. I very much enjoyed working in the community legal sector and got a lot of court and trial work which was valuable experience, especially at such a young age. After YLS I moved to Fremantle Community Legal Centre where I worked as a Community Legal Education officer and solicitor. At that time I was completing an Arts degree, majoring in History with plans to go on to a higher degree with hopes of becoming a history academic.

One day when I was on campus, I bumped into an old friend from Law School who was teaching at UWA and she suggested that since I was on campus I do some tutoring. I hadn’t thought about teaching law, although I always thought that being an academic looked like a really amazing job. So I

started tutoring in the Law School and absolutely loved it. Then one thing followed on from another and I got my first ongoing position in 1996. With the exception of a couple of years at the Law School at Notre Dame, I have been at UWA ever since.

How have you managed your work / life balance?

I have three children who are now 23, 21 and 16. I very consciously kept my career in first gear for a long time so that I was able to primarily focus on them. This work is also something that is possible to do effectively part time, which is what I wanted to do. This is not the right approach for everyone, of course, but it was what I wanted to do and it was the right thing for me. I worked part time until about 8 years ago. Now my youngest is in Year 11, I am very conscious of having so much more time with many more years ahead of me.

I am also very fortunate to have such a flexible job. That flexibility to work from home is now hopefully something that is available to more people post pandemic as employers realise how much better it is for their workforce, but university teaching has always been like that. There has always been an awareness that a lot of research or teaching preparation can be

done from the dining room table just as easily as it can be done from the office.

I also have to acknowledge that it is not all “me”, of course. My husband is a very present dad and, as I said earlier, a very equal partner. There’s no question that he values what I do and that he will adjust around me when things get a bit hectic.

And that goes both ways. Right now he’s super busy and so I’m trying to make life a bit easier for him. I think my husband’s views on gender equality are the influence of both his grandmothers and his mother, all strong women with unconventional lives and careers. His views on gender equality are so entrenched, it is just what he thinks is normal.

Did you plan your career or has it happened “organically”?

It has very much happened organically.

I am not much of a planner and tend to go with my gut instinct. Although, what has developed over time, is my comfort level with going with my instincts. I don’t second guess myself like I used to.

I think the word ‘passion’ is overrated and done to death [in terms of one’s job]. You don’t have to necessarily have passion; I much prefer the concept of ‘flow’, which is term coined by psychologist Mihaly Csikszentmihalyi. ‘Flow’ is basically the state of being engaged in something when there’s a feeling of not being conscious of the clock ticking. You are deeply engaged in something and you are focused on it in a beautifully relaxed way. It’s challenging enough to make it interesting but not so challenging as to be paralysing.

I have always tried to find a place where I felt in ‘flow’ and for a long time I felt like that in the community legal sector but then got the feeling I need to keep progressing and so at some point I asked myself “OK, what now?”. And then I was

so lucky that the opportunity at UWA arose for me. I have been teaching for over 20 years now but I still feel very engaged in what I am doing.

Do you feel that in teaching at the UWA law school you have been able to continue progressing?

Yes, I have. There’s always new material to teach, a new way to teach something or even a new unit to create. This year I ran a new unit for the first time ‘Adulting: The Law for Everyday Lives’ which is a broadening unit and aims to give students an insight into the major laws that affect their lives, such as driving, housing and health, to name a few topics. It’s the same with research; law is constantly evolving and so you never run out of things to write about that puzzle or interest you. At the moment I am very interested in the impact of tech’ on the legal profession and the law and that is an area that is very much under development.

In addition, I have interests external to the Law School; I am the lawyer on the Teacher Registration Board and also chair the Disciplinary Committee and am involved in the Piddington Society. I have coached teams for the Law Society’s Mock Trial competition and am now involved as a judge in the competition.

My involvement in these activities is great for me as it keeps things interesting but I think it adds to my primary role at the university; by staying engaged with the legal profession, I can remain well versed in the world into which my students will be moving.

Do you have role models in the law?

There are so many brilliant women I really admire and have followed their careers.

The late Ruth Bader Ginsburg of course.

And Justice Mary Gaudron QC, the first female High Court justice, who was appointed when I was at Law School.

The Honourable Christine Wheeler AO QC too; the first female QC in WA and first female Supreme Court judge. I have also long admired Diana Bryant AO QC, the former Chief Justice of the Family Court of Australia. When I was in Year 10 I did work experience at a law firm where she was a partner. That was in 1983 so there weren’t a lot of women in senior positions.

She was incredibly kind and encouraging and since then I’ve followed her career. I got to meet her at a conference last year and tell her all this, which was so great.

All these women are trailblazers in law and particularly for women.

Someone else I really admire is Dr Ambelin Kwaymullina. She’s an acclaimed author as well as an academic at UWA law school. Ambelin is leading the indigenisation of the law school curriculum. She is absolutely tireless in the work she does in relation to indigenous issues, to educate and to produce meaningful change. I feel grateful that I’m in such close proximity to her and have had the opportunity to take part in the work she’s doing.

Those women are real stars, but I also admire people who follow their own path, and whatever they are choosing to do, they are doing it to the best of their ability.

And people who are using their powers for good and to promote others. There are all sorts of ways to do that.

You seem to have a real sense of fun when it comes to teaching and the law. Where does it come from and what feeds it?

I have always loved humour and comedy and think having a sense of humour is really important. There are positive

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benefits to being able to see the lighter side and not take everything too seriously.

It’s been gratifying to do some research on the use of humour in teaching law with Professor Natalie Skead. There’s a lot of evidence that the judicious use of appropriate humour in teaching has a real pedagogical benefit. It can reduce stress and assist in retention of concepts. It can also help students relax and enjoy what we are doing rather than being constantly stressed out about being in law school.

That’s not to suggest law teaching should be an opportunity for stand up comedy.

But there is room for a little levity in life and in law.

You mentioned an interest in history, did that come before your interest in the law?

I’ve always loved history from when I was quite young. Even when I teach law, I like to give historical context where appropriate as I think it can assist in understanding the Law. Law is endlessly fascinating. To me it’s the ultimate social science, it combines politics, history, sociology and psychology. It is all of those interesting things in a system that can, when it is in its purest form, change things for good.

I do love law now, although it’s been a slow burn! I chose to study law because people said ‘you would be a good lawyer because you talk so much and love to debate everything’. I don’t think I particularly loved law when I was studying it. And I didn’t love it initially when I was practising it. And yet it kept drawing me back. I think law had gotten under my skin.

What are your hobbies and interests?

I am currently obsessed with upcycling and chalk painting furniture (I love Annie Sloan chalk paint). Unfortunately, I have been banned from painting anything more in the house so now I’m constantly scouring junk shops to find stuff to paint.

Chalk paint is the best fun as it is so densely pigmented and you don’t have to do any preparation, which I never have the patience for.

I also love the arts; classical music and theatre especially and will see a lot at Fringe Festival and Festival of Perth or whatever is on at the Octagon, Hayman or WAAPA. My daughter is a theatre studies student and we see lots of theatre together.

I read a lot of fiction and non-fiction and love a good Netflix binge – I finally got

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around to watching Mad Men during the pandemic and it was fantastic. And hosting dinner parties. It’s always good fun mixing different people.

How do you maintain your mental and physical wellbeing?

I love my job but it does not rule my life.

I think by having a healthy balance with family and outside interests, I’m better at my job.

Once I turned 50, I thought I should get better at taking physical fitness more seriously. I’ve been going to the gym regularly for the last couple of years and I’m trying to do more commuting to UWA by bike instead of driving. And my dog, George, is pretty insistent that he should get a walk every day. I’ve also finally worked out that exercise is great for you physically but also mentally. I am not sure why it took me so long to work that one out since everyone else seemed to know that one.

As a woman in the law and academia what gender specific hurdles have you overcome?

I’m not conscious of being overtly discriminated against although the more I know about unconscious bias, I’m sure I have been subconsciously discriminated against at some times in my life.

On education Education is everything and should be accessible to everyone. I feel so privileged that I have such a good life because of my opportunity to be educated. A few generations ago my family on both sides were Welsh coalminers and Scottish shipyard workers, people who didn’t have the opportunity to go to university.

My family immigrated to Australia from Scotland in 1974. Even though I mainly grew up here, I always felt particularly connected to my grandmother, after whom I am named. Her father was a coachman for the wealthy Coates family in Paisley and she was one of ten children, so going to university was impossible, but she recognised early on the importance of education. She made sure my dad went to a good school and he ended up as an optician. When I went to university and became a lawyer my grandmother was ridiculously proud.

When I visited her, she would introduce me to anyone who would listen - and many who wouldn’t - as ‘this is my granddaughter Kate-She’s-A-Lawyer’ (all one word). My cousins still call me ‘KateShe’s-A-Lawyer’). So in two generations,

education changed things dramatically for our family. It was mission accomplished for my grandmother!

Is that why you love teaching?

I think so. When I was at school I always thought I’d be a teacher. My mum, who became a teacher after we arrived in Australia, discouraged it, as did teachers I knew at school who thought it would be too limiting. I think it’s funny that I’ve really ended up being a teacher. I teach law and am primarily interested in legal education. I teach in the Graduate School of Education and I am on the Teacher Registration Board. It is like what I was meant to be, found me, even though I went about it in a different way. I’m happy with the path that has evolved for me and law is a fascinating discipline to teach.

I also really enjoy being on the campus and being around people at that crucial time in their lives, it sounds cheesy - you might need some crackers here - but it is a really lovely thing as I know that teachers can play a hugely important role in someone’s life.

How do you approach teaching law?

I consciously make myself accessible, and again I think that’s where humour helps. I encourage students to think the law is nothing to be scared of — it is just us humans regulating human behaviour and so it largely follows our human instincts (not always, but largely, and especially in Torts, which is my favourite subject to teach).

Law is very complex and can be overwhelming to study. I’ve always thought of teaching law as there being a bridge, with the students on one side of the bridge and I am standing on the other side of the bridge, in front of the large tangled unwieldy mass that is Law. It’s not my job to pre-digest the law and take it over the bridge to the students but to coax the students over the bridge and encourage them to engage with law. It is my role to say ‘yes, this is overwhelming but here is a roadmap through the madness’. That’s what I hope to do - give students a roadmap so the law does not feel so overwhelming and they have the confidence to dive into it and, hopefully, eventually, learn to love it!

Interview with Attorney General John Quigley MLA on the WA Pro Bono Model

Attorney General John Quigley MLA

Earlier this year, the State Government announced the introduction of a pro bono model which would further enhance access to justice for all Western Australians, in particular those from disadvantaged and marginalised backgrounds who are experiencing hardship.

Under the WA pro bono model, law firms who undertake legal services for government departments and agencies must subscribe to the National Pro Bono Target, and provide pro bono legal services in WA for ‘approved causes’ to the value of at least 10 per cent of the value of their State Government legal work.

The new model took effect on 1 July 2020.

Brief recently interviewed the Attorney General, the Honourable John Quigley MLA, to learn more about the WA pro bono model and his insights on this important new initiative.

Can you provide us with some background on the consultation process that was initially followed before drafting the new pro bono model?

Western Australia’s unique pro bono model came to fruition following extensive consultation by the State Solicitor’s Office with law firms, the community legal sector, various legal groups and organisations, as well as the public sector.

The State Solicitor’s Office was particularly interested in input from firms which are contracted by government agencies to provide legal services. They spoke to the “Heads of Pro Bono” at leading commercial law firms in WA and nationally to obtain their views about pro bono requirements, and to understand how they conducted their pro bono legal services.

There were discussions with the Law Society, the Community Legal Centre Association, the Legal Aid Commission

and Aboriginal Legal Services about what would be required to enhance the delivery of pro bono legal services in this state. The Australian Pro Bono Centre and Law Access, who have been central in coordinating pro bono legal services nationally and in WA, were invited to contribute.

The Office also consulted within the public sector, namely government departments and government trading enterprises, such as Synergy and the Water Corporation, about implementation of the Model.

I personally had numerous discussions with people working in the community legal sector and was very aware of the demands for legal services.

A draft model was circulated to law firms for comment.

Asked if the Model should be mandatory or aspirational, it was encouraging to learn that the majority of law firms indicated they preferred a mandatory

model. The general view was that a mandatory model sent a strong signal to the legal community and the community in general about the importance of pro bono legal services.

What response did you receive from the law firms that would be subject to the target, and what was the level of appetite to perform that work?

I have been heartened by the enthusiasm with which the legal profession has engaged with the Model. Law firms, particularly national law firms, are familiar with undertaking pro bono work as part of government procurement requirements.

Similar pro bono arrangements have been successfully introduced in Victoria, New South Wales, South Australia and the Commonwealth.

The WA Model draws on the experience of those jurisdictions, and has a particular focus on increasing access to justice for individuals. With this focus, the Model

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and aspirational target of at least 35 hours of pro bono legal services per lawyer per year. In order to be counted towards the National Pro Bono Target, activities must fall within a broad definition of “pro bono legal services”.

is arguably the most progressive in Australia.

There is anecdotal evidence to suggest law firms see the structured provision of pro bono legal services as an important corporate social responsibility. It is useful to note that several law firms had in place strong pro bono practices before the Model was announced. Some firms also have pro bono partners and pro bono coordinators, so it would be fair to surmise that the appetite to give back to the community or for pro bono legal work is considerable in WA. Law firms are required to submit a report to the State Solicitor’s Office for each contract for legal services. A report will be tabled in Parliament on the level of pro bono work undertaken each year.

How does this new model encourage law firms to provide pro bono work? Do you foresee any obstacles?

It would be more accurate to say that the Model, rather than encouraging law firms to do pro bono work, aims to increase the amount of pro bono work provided to the most vulnerable in our community. The Model was designed to increase access to justice for individuals from disadvantaged and marginalised backgrounds, not simply to increase pro bono work generally.

The approach we have adopted is about explicitly recognising that we are building on the legal profession’s underlying commitment to enhance access to justice.

It is not a punitive measure.

The Model includes transitional arrangements – it provides that firms are only expected to use their best efforts to reach the 10 per cent target for approved causes in 2021 and 2022. It is only in 2023 that law firms must meet the requirement.

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Regular pro bono coordinator meetings convened by Law Access provide an opportunity to address any issues that may arise. These meetings are attended by pro bono coordinators from private law firms, as well as representatives from the community legal sector.

To help law firms reach individuals from disadvantaged and marginalised backgrounds, Law Access has been funded to match referrals from Community Legal Centres with the right law firm. Law Access and Community Legal Centres Western Australia have signed an MOU to collectively target pro bono services to vulnerable people.

Additionally, Law Access has been funded to provide training for Community Legal Centres and other legal assistance providers on how to make referrals and engage with pro bono lawyers. One of the benefits of taking a more structured approach to coordinating legal services is that it is more likely that needs for legal services will be matched with the right legal firm.

We will continue to monitor and evaluate the success of the Model with a view to refine it to incorporate what we learn over the course of the next two to three years.

How can law firms get involved?

What are the requirements for doing pro bono work in terms of this model?

Simply put, all law firms who enter into a contract with a government department, government trading entity or the State Solicitor’s Office must provide pro bono legal services.

The Model consists of two mandatory elements. First, the law firm must become a signatory to the Australian Pro Bono Centre’s National Pro Bono Target (if the firm is not already a signatory). The National Pro Bono Target is a voluntary

The second element is unique to the WA Model. This requires the law firm to undertake Pro Bono Legal Services for “approved causes” to the value of at least 10 per cent of the total value of the law firm’s contract for legal services with the government department or agency.

In simple terms, “approved causes” is defined to mean providing legal services to individuals who are unable to get Legal Aid, and which will enhance access to justice for disadvantaged people. The Model emphasises providing services that are needed, rather than only providing what lawyers are prepared to offer.

The Model defines “approved causes” to cover pro bono legal services: a) to individuals in Western Australia who cannot obtain Legal Aid or otherwise access the legal system without incurring significant financial or other hardship; b) which will enhance access to justice for disadvantaged people in Western Australia; c) to Law Access, a community legal centre in Western Australia, the Aboriginal Legal Services of Western Australia, and to bodies in Western Australia whose primary focus is representation of Aboriginal people; or d) by way of secondment of legal staff to Law Access, a community legal centre in Western Australia, the Aboriginal Legal Services of Western Australia, or bodies in Western Australia whose primary focus is legal representation for Aboriginal people.

Are there any specific resources you would like to share with Brief readers who would like to find out more about the pro bono model?

The Model is supported by the Pro Bono Guidelines. The Model, the Pro Bono Guidelines, FAQs and other information relating to the Model are published on the WA Government website: https://www.wa.gov.au/government/ announcements/western-australias-probono-model-guidelines.

Lawyers, Community Legal Centres, community service providers and Members of Parliament can also refer an individual who requires pro bono legal assistance by submitting a form online via https://lawaccess.org.au/refer-a-matter/.

A Judge alone – Who Cares?

A reflection by the Hon John McKechnie QC

In 1993, at the request of Attorney General Cheryl Edwardes, I talked with judges and lawyers in different jurisdictions while on an international trip for other reasons. The discussions were about the feasibility of trials without a jury – by a judge alone. This was an initiative the Attorney General wished to introduce into Western Australia. It was allowed for in other States, but for constitutional reasons, is not available for trials on indictment in the Commonwealth.

Some of what I learned made its way into the Criminal Code and then into the trial by judge alone provisions of the Criminal Procedure Act. As a prosecutor I conducted a number of trials before a single judge. As a judge I presided over many more.

I am no great fan of trials by judge alone.

However, this reflection is not about the merits or otherwise of jury trials. There are a range of opinions about the efficacy of jury trials and mine is but one.

This reflection is also not a legal treatise.

If you want a discussion of the legal principles, read Steele v SOWA [2018] WASCA 133 and study the Criminal Procedure Act Part 4 division 7.

Rather, this reflection is about the human element and some of the issues which must be confronted.

A judge can order a trial by judge alone in the interests of justice – a very broad phrase susceptible of many conclusions.

By their nature, decisions made by primary judges whether to order trial by judge alone are rarely the subject of appeal. There is divergence in the factors regarded as important by different judges.

The application can be made by either party but must be made before the identity of the trial judge is known. Once made, an order cannot be reversed. The purpose of course is to prevent judgeshopping. In one jurisdiction the order for trial by judge alone was sometimes manipulated. If an accused saw on the morning of the trial that the judge might be regarded as sympathetic to the defence, an application would be made, usually granted. On the other hand the

prosecutor might apply if the judge was thought to be favourable to the state. In WA, an application by the prosecutor can only be granted if the accused consents.

Statutory matters to be taken into consideration include whether due to complexity, length or both, the trial is likely to be unreasonably burdensome for a jury. The idea I suppose is that judges are better at handling complexity. I am not so sure. A judge as much as a jury has to absorb and understand the evidence whether complex or not. In the washup of the blue arrow trial in England, it was found that the jury, 12 months later, seemed to have a better understanding of the technical issues than counsel and perhaps the judge. (The judge abandoned the trial because it was thought that it had become too hard for the jury to comprehend. No one asked the jury.) If a judge, while deliberating, finds difficulty in a concept or an understanding of a problem, there is no one to ask or bounce ideas off.

Other statutory factors include whether the trial will involve a factual issue which requires the application of objective community standards such as reasonableness, negligence, indecency, obscenity or dangerousness.

The sentiment behind this list is clear – let representatives of the community set the standards of criminal behaviour in matters involving value judgment.

However apart from indecency and obscenity, judges have been deciding issues of reasonableness, dangerousness and negligence for decades. Judges apply the construct of ‘the reasonable person’ who does not in fact exist.

A jury is not 12 reasonable persons – it is 12 ordinary members of the community who may or may not also be reasonable.

So in an area where many judges, particularly in the District Court, have a well-developed expertise honed by civil cases in tort, an application for trial by judge alone may be denied.

Over the years some threads have emerged. Judge alone trials are an option for cases that have attracted inordinate

adverse publicity. The option put an end to applications to stay an indictment on the basis of adverse publicity. There is now an alternative to a jury that might have been inflamed.

Judge alone trials have been popular in cases where the accused’s sanity is in issue especially when psychiatrists are in agreement. Then a trial by judge alone can be quick and efficient. Often all the facts are admitted. Even when evidence is contested, judges have experience at weighing expert medical evidence.

For similar reasons, cases that deal with complicated DNA evidence are often the subject of trials by judge alone.

Until 2020, trials by judge alone were still the minority in the superior courts though popularity was growing. Covid 19 has caused an increase in applications because jury trials were cancelled for months. The applications were mostly granted, delay being often the deciding factor.

So why are trials by judge alone burdensome on the judge? After all, the judge might preside over the same facts with a jury.

There are many reasons but few avenues to help a judge manage the human issues that arise.

Presiding over a jury trial is much easier than a trial by judge sitting alone.

In the first place, if a trial is distressing – many are – the judge can seek solace from other judges. A judge can freely discuss a jury trial – after all the judge is not the one making the decision. The judge can seek advice on unusual points of law from other more experienced judges.

Compare this with a judge alone trial.

The judge may speak with no one lest some irrelevant or prejudicial comment is made which sinks into the judicial consciousness and influences the verdict. If the trial is distressing – many are chosen for judge only trial for this reason – the judge has no one to share the burden and mental trauma of dealing with the worst excesses of exploitation or cruelty.

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In deliberating towards a verdict a judge must give all the directions that the judge would give a jury. This may become a matter of mere incantation and reads oddly at times. “I remind myself that there may be many reasons for a person to lie other than consciousness of guilt.” “I specifically warn myself of the danger…” as if the judge and the decision maker are two different people.

At the same time there are directions to a jury that are wholly inapplicable to a judge alone. A direction that 3 hours having passed, the judge can take a majority verdict is obviously pointless but throws up a contrast. A jury consists of 12 people with varied life experience.

They share both reservations and firm views with each other and by discussion and no doubt some give and take, reach a verdict, sometimes one with which only 10 agree. A judge does not have this option of something less than unanimity in the decision maker but must be certain one way or the other.

A judge is hardly in a position to give a “Black” direction. Presumably such a direction, adapted to a trial by judge alone, would be to carefully listen to all the competing voices in the judge’s head.

The judge is the obvious decision maker.

A criminal trial by jury seems designed to avoid personal responsibility for a verdict.

The prosecutor’s role is to lay the facts before the jury. The defence counsel role is to challenge the facts and do what is lawful on behalf of the accused. The judge directs the jury as to the law to be applied but explicitly leaves the actual decision to them. None of the three of them have any responsibility for the outcome.

A jury comprises 12 people who unanimously and anonymously agree.

Each individual juror can hide behind the group decision. If there is media or public anger as to a result, the blame is laid on ‘the jury’ not on any individual member. A faceless evanescent entity.

Some judges find that making a decision is difficult. This has always struck me as odd. What did they think judges did when they were first approached to join the bench? They may be excellent with juries but find the responsibility for the verdict a particular strain. The fact of public identification with the result may also cause angst.

Judges must give reasons. There is a time pressure on a judge to produce reasons and a verdict quickly. This is especially so if the trial will end in an acquittal and the accused is in custody.

Everything in a jury trial happens in real time and within the four walls of the trial.

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The summing up, with strong similarities to giving an oral judgment, takes place within the time allocated for the trial.

Ignoring sentencing which is irrelevant for present purposes, once the verdict is announced the trial is over, the result known.

With trial by judge alone, when the lawyers pack up their bags, the judge settles down to work. While some judges have a facility for delivering an oral judgment, this is far from a universal skill.

With the likelihood that any judgment will be scrutinised, many judges will take a cautious approach and reserve judgment in order to write comprehensive reasons.

A judge is required to give extensive reasons as to the law and the facts.

Court administrations generally allow too little time for judges to write. If a judge is not constantly in court, they are ‘unproductive’. As a consequence, judges often have to fit writing judgments around their other judicial commitments. This is bad enough in civil matters and can lead to excessive delay. In criminal matters, delay is more critical. The alternative to a jury trial should not be an extended wait for an outcome.

Because of the requirement to consider the law and give all directions to oneself that a jury might be given, even if the judge has decided on the result, it might be necessary to spend much time crafting a judgment to withstand the Court of Appeal. This can add to a judge’s mental strain.

The material with which a judge must deal may be very confronting. Sometimes a trial by judge alone is ordered because the alleged facts are so awful that it is unfair to subject ordinary members of the community to them. This is often run as an argument in parallel with prejudicial publicity.

It is assumed by appeal courts that a judge, by virtue of training experience and temperament is able to handle the unfolding of traumatic material without losing a sense of balance. That might be true, although appellate judges are in no position to really know. They may never have done a trial by judge alone and felt that particular pressure.

They have never experienced emotional turmoil at lonely exposure to awful facts which may lead to an occasional infelicity of expression. If a case reaches them on appeal, they have the ability to collaborate, discuss and seek solace from others; all things denied the trial judge.

The effect of the never-ending exposure to the worst of the human condition is cumulative. It may not be understood or

acknowledged by the judge.

I spent 16 years as a judge in crime, mainly homicide and other crimes of violence, including some gruesome trials by judge alone. It wasn’t until sometime after I had left the court to become Corruption and Crime Commissioner that I began to realise a slow unwinding of the perpetual knot in my stomach. After some months my wife said one day “You have started to smile again”. Most people who worked with or knew me during those years would not have guessed the nature of my work had any effect on me.

Even I did not. Yet in retrospect I can see distress lurking beneath the surface during the later years due to an almost daily diet of inhumanity unable to be shared.

We are not good at looking after the mental well-being of our judges and magistrates. Judicial officers are still predominantly male, a gender not renowned for insight. A workload dealing with ever growing lists is punishing.

Because most judicial officers are very conscientious, they battle on. An appeal to more senior judges or heads of jurisdiction will be met with good will and understanding but such is the pressure of the lists, often little more.

The effects on the judges who had to conduct trials alone was likely not considered when the initiative was proposed. It was assumed, with some justification, that judges would be able to cope. After all magistrates deal with heavy workloads and have never had a jury to share the burden.

Time and experience suggest that our early assumptions may have been too rosy. Or maybe we didn’t realise that in 25 years, judges would be dealing with a tsunami of sex cases, especially child sex cases, meth fuelled extreme violence, and homicides, each of which seemingly slightly more brutal than the last.

The Law Society has long advocated mental health initiatives for lawyers with a commendable range of programmes. All those aids are left behind when a lawyer joins the bench and there is no effective alternative.

This reflection is not about judicial stress – a controversial issue. It is about the effects of legally required isolation in decision making involving cases that show the worst of humanity. We need to find a way to nurture and protect those judges who shoulder the increasing burden of these trials by judge alone.

Henry VIII Clauses

by Thomas Moorhead Lawyer Policy and Advocacy, The Law Society of Western Australia A ‘Henry VIII clause’ is the term given to a provision in an Act of Parliament which enables the Act to be expressly or impliedly amended by subordinate legislation or Executive action.1 The clause enables delegated legislation to make or amend enabling laws, absent Parliamentary oversight. The effect of a Henry VIII clause is that whoever makes the regulations has been delegated legislative power by the Parliament, and this is inconsistent with the ‘separation of powers’ doctrine as the Executive arm of Government has the powers of the Legislature to make laws, without the scrutiny and transparency which comes with Parliamentary law making.

Origins The original Henry VIII clause was not, as one might think, to facilitate King Henry divorcing2 and decapitating3 his wives, or changing religions on a whim.4 The original clause involved cesspits, and not of the moral kind. In the 1531 Statute of Sewers,5 a clause was inserted which gave the Commissioner of Sewers powers

to make rules which had the force of legislation to impose taxation rates, and penalties for non-compliance.

The original Henry VIII clause was not, as one might think, to facilitate King Henry divorcing2 and decapitating3 his wives, or changing religions on a whim.4 This was followed up in 1539 by the Statute of Proclamations which allowed the King’s proclamations to have the same force as Acts of Parliament.6 Unlike the Statute of Sewers this Act gave the King broad powers, and was described

by Sir William Blackstone as ‘calculated

to introduce the most despotic tyranny; and which must have proved fatal to the liberties of this kingdom, had it not been luckily repealed’7. One can imagine a modern-day head of state enacting a Statute of Tweets.

In Western Australia A recent example of a Henry VIII clause relevant to the profession is found in Clause 126(1)(b) of the Legal Profession Uniform Law Application Bill 2020, which provides that local regulations may: without limitation, exclude or modify the operation of specified provisions of the Legal Profession Uniform Law (WA) (including the provisions of Part 2.2 of the Law) to the extent that any of those provisions would otherwise be applicable to any persons, or classes of persons, as government lawyers; The Western Australian Legislative Council’s Standing Committee on Uniform Legislation and Statutes Review has a clear position on Henry VIII clauses,8

37

VIII clauses”. The empowering provisions reflect not a return to the executive autocracy of a Tudor monarch, but the striking of a legislated balance between flexibility and accountability in the working out of the detail of replacing one modern complex statutory scheme with another.”14

Delegated Legislation in a Crisis Theoretically, there is grave potential for Henry VIII clauses to be used not only for minor or transitional matters, but to implement substantive policy ‘on the sly’, and there is evidence of increasing use in Australia and other Commonwealth nations.15 This is especially so when Governments are confronted with crises. considering them ‘objectionable as they offend the principle of the separation of powers, give insufficient regard to the institution of Parliament as the supreme legislature and delegate to the Executive the Parliament’s sovereign function to legislate’.9 The Standing Committee recommends that if Henry VIII clauses are inserted in Bills, the rationale for their insertion ought to be explained in the Bill’s explanatory materials.10 This recommendation was first made by the 1932 Donoughmore Committee, which stated that Henry VIII clauses “be abandoned in all but the most exceptional cases, and should not be permitted by Parliament except upon special grounds stated in the Ministerial Memorandum attached to the Bill”.11

Much Ado about Nothing?

Henry VIII clauses are often included in legislation if minor amendments may need to be made to an Act for the law to work effectively in practice. This is arguably the case with the Uniform Law provision on Government Lawyers above.

The Constitutionality of a Henry VIII clause was confirmed by the High Court of Australia (HCA) in Dignan’s Case,12 and the Court has later reaffirmed that Henry VIII clauses are within power as long as Parliament retains the right to amend the principal Act.13 In the context of transitional provisions in the New South Wales Workers Compensation Act 1987, the HCA remarked that: …[P]arliamentary oversight, together with the scope for judicial review of the exercise of the regulation-making power, diminishes the utility of the pejorative labelling of the empowering provisions as “Henry

38 | BRIEF DECEMBER 2020

It may come as no surprise that Henry VIII clauses have been employed by the Federal Government in response to COVID-19.16 The have also been employed by the UK Government during Brexit,17 and by several governments during the Global Financial Crisis.18 The clauses were also employed during the two World Wars.19 For example, Ministerial determinations under section 477 of the Biosecurity Act 2015 (Cth) apply “despite any provision of any other Australian law”.20 Given there are serious custodial penalties for non-compliance with the directions, and the determinations are exempt from ‘disallowance’,21 some pundits have concluded that ‘the Parliament has signed a blank cheque enabling the Executive to make wide ranging policy decisions in response to the pandemic, with very serious civil liberties implications’.22 Such is the concern regarding the legislative response to COVID-19, including the broad employment of Henry VIII clauses, and other clauses that exempt subsidiary legislative instruments from disallowance, that a Senate Inquiry into the exemption of delegated legislation from parliamentary oversight is underway.23

Conclusion That the Henry VIII clause is named after a monarch whose reign is not remembered with approbation is a strong indication that drafting these clauses into legislation is not a good idea. Henry VIII clauses may be facile for public servants who can avoid parliamentary tie-ups when they run afoul of local statues, and convenient for Governments who need to make laws in a hurry, such as in times of war or disease.

However, necessity is the plea for every infringement of human freedom.24 Henry VIII clauses need to be the exception

and not the rule. Legislation made by the Executive and without the involvement of the legislature undermines the separation of powers, and the sovereignty of the parliament. Legislators would do well to remember, when drafting legislation, to Heat not a furnace for your foe so hot That it do singe yourself.25 Endnotes 1 As defined by the Scrutiny of Legislation Committee of the Queensland Parliament in The use of “Henry VIII Clauses “in Queensland Legislation January 1997, p 24 (available at http://www.premiers.qld.gov.au/publications/ categories/policiesand-codes/handbooks/legislationhandbook/fund-principles/parliament.aspx) 2 Catherine of Aragon and Anne of Cleves 3 Anne Boleyn and Catherine Howard 4 Act of Supremacy 1534 (26 Hen. VIII c. 1) 5 Statute of Sewers 6 Statute of Proclamations 1539 (Eng), 31 Hen VIII c 8.

7 Blackstone (1765-69) Commentaries on the Laws of England, Book 1, Chapter 7 The Statute of Proclamations was repealed on the King’s death in 1547 8 This position is common in Australian Parliamentary Committees – see Mark Aronson ‘The Great Depression, this Depression, and Administrative Law’ Federal Law Review – “Australia’s committees all profess a strong dislike of Henry VIII clauses”. Australia’s committees all profess a strong dislike of Henry VIII clauses 9 Western Australia, Legislative Council, Standing Committee on Uniform Legislation and Statutes Review, Report 129 Legal Profession Uniform Law Application Bill 2020 and Legal Profession Uniform Law Application (Levy) Bill 2020, page 32 10 Ibid.

11 Report of the Committee on Ministers’ Powers, (1932) Cmd 4060 at 65 12 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, which upheld Transport Workers Act 1928–1929 (Cth), s 3, 13 Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1992) 177 CLR 248; (1992) 66 ALJR 794 14 ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 at 61 15 See statistics in Senate Standing Committee on Regulations and Ordinances, Parliament of Australia, Annual Reports; Rosemary Laing (ed), Odgers’ Australian Senate Practice – As Revised by Harry Evans, (Department of the Senate, 14th ed, 2016), also House of Lords, Committee on the Constitution, “The Legislative Process: The Delegation of Powers” (2018) https://www.parliament.uk/business/committees/ committees-a-z/lordsselect/constitution-committee/ news-parliament-2017/legislative-process-delegation-ofpowers/.

16 https://www.thesaturdaypaper.com.au/news/ politics/2020/07/04/morrison-ruling-henry-viiiclauses/159378480010053 17 Ellis Paterson and Dr Jack Caird, ‘Brexit, Delegated Powers and Delegated Legislation: a Rule of Law Analysis of Parliamentary Scrutiny’ (20 April 2020) Bingham Centre for the Rule of Law 18 Mark Aronson, THE GREAT DEPRESSION, THIS DEPRESSION, AND ADMINISTRATIVE LAW Federal Law Review, 2009: http://www.austlii.edu.au/au/journals/ FedLawRw/2009/7.pdf 19 Richard Gordon QC Why Henry VIII Clauses Should be Consigned To The Dustbin of History: https:// publiclawproject.org.uk/wp-content/uploads/data/ resources/220/WHY-HENRY-VIII-CLAUSES-SHOULDBE-CONSIGNED-TO-THE-DUSTBIN-OF-HISTORY.pdf 20 Biosecurity Act 2015 (Cth) s.477(5) 21 For information on the disallowance process, see https://www.aph.gov.au/about_parliament/senate/ powers_practice_n_procedures/brief_guides_to_senate_ procedure/no_19 22 NSW Council for Civil Liberties, ANSWERS TO WRITTEN QUESTIONS ON NOTICE Inquiry into the exemption of delegated legislation from parliamentary oversight, 28 August 2020 23 Senate Standing Committee for the Scrutiny of Delegated Legislation, Exemption of delegated legislation from parliamentary oversight https://www.aph.gov.au/ Parliamentary_Business/Committees/Senate/Scrutiny_of_ Delegated_Legislation/Exemptfromoversight 24 William Pitt the Younger: Speech in the House of Commons (18 November, 1783) 25 William Shakespeare, Henry VIII, Duke of Norfolk (Act 1, Scene 1)

Changes to the Taxation of Testamentary Trusts – Distributing Income to Minors

by Humphry Faas Director, Anchor Legal

Division 6AA In 19801, the Federal government passed legislation to impose a punitive income tax rate upon minors2 to whom trust distributions were made. The purpose of Division 6AA of the Income Tax Assessment Act 1936 (entitled “Income of certain children”) was to create a disincentive to the practice of splitting trust income and distributing it to minors, in some cases infants, in order to maximise the use of available lower income tax thresholds. The provisions impose tax at the highest marginal rate on minor beneficiaries in receipt of trust distributions in excess of a taxfree threshold of $416. Division 6AA is effectively an anti-avoidance measure.

Section 102AG and income from a testamentary trust Section 102AG sets out the trust income to which Division 6AA applies. The punitive income tax rate applies to income distributed to minors that, in the opinion of the Commissioner, is not “excepted trust income”3.

Income from a testamentary trust is dealt with in paragraph 102AG(2)(a).

Broadly speaking, income from a testamentary trust is “excepted trust income” which can be distributed to minors without incurring the punitive income tax rate. The great tax advantage here is that minors can receive approximately $22,000 tax free and the balance at normal adult rates. If you have a few children, the tax savings from utilising a testamentary trust can be significant4.

There have not been many cases on paragraph 102AG(2)(a)5 and the ATO pronouncements have been conservative6.

Some commentators7 concluded that the trustee of a testamentary trust could borrow money to acquire income earning assets, and the income therefrom would be “excepted trust income”.

income from testamentary trusts will be limited to income derived from assets that are transferred from the deceased estate or the proceeds of the disposal or investment of those assets.

Currently, income received by minors from testamentary trusts is taxed at normal adult rates rather than the higher tax rates that generally apply to minors.

However, some taxpayers are able to inappropriately obtain the benefit of this lower tax rate by injecting assets unrelated to the deceased estate into the testamentary trust. This measure will clarify that minors will be taxed at adult marginal tax rates only in respect of income a testamentary trust generates from assets of the deceased estate (or the proceeds of the disposal or investment of these assets).8

There also appeared to be a practice of injecting assets into testamentary trusts in other ways, to increase the available tax benefits.

1 July 2020 amendments

All of this prompted a tax integrity revenue measure in the 2018-19 Federal Budget as follows:

From 1 July 2020, paragraph 102AG(2)(a) reads as follows (amendment underlined):

From 1 July 2019, the concessional tax rates available for minors receiving

That budget measure was only recently enacted.

(2) Subject to this section, an amount included in the assessable income of a trust estate is excepted trust 39

income in relation to a beneficiary of the trust estate to the extent to which the amount: a) is assessable income, of a kind covered by subsection (2AA), of a trust estate that resulted from: i)

a will, codicil or an order of a court that varied or modified the provisions of a will or codicil; or

ii)

an intestacy or an order of a court that varied or modified the application, in relation to the estate of a deceased person, of the provisions of the law relating to the distribution of the estates of persons who die intestate;

The underlined amendment9 applies in relation to assets acquired by or transferred to the trustee of a trust estate on or after 1 July 201910.

New subsection 102AG(2AA) reads as follows: (2AA) For the purposes of paragraph (2) (a), assessable income of a trust estate is of a kind covered by this subsection if: a) the assessable income is derived by the trustee of the trust estate from property; and b) the property satisfies any of the following requirements: i) the property was transferred to the trustee of the trust estate to benefit the beneficiary from the estate of the deceased person concerned, as a result of the will, codicil, intestacy or order of a court mentioned in paragraph (2)(a); ii) the property represents accumulations of income or capital from property that satisfies the requirement in subparagraph (i); iii) the property represents accumulations of income or capital from property that satisfies the requirement in subparagraph (ii), or (because of a previous operation of this subparagraph) the requirement in this subparagraph.

What has changed?

There are three ways in which the recent amendments have changed things.

40 | BRIEF DECEMBER 2020

Firstly, the amendments require that the income of the testamentary trust be derived “from property”. This would exclude service income derived by the trustee of a testamentary trust that employs staff to provide services.

Secondly, the amendments also require that the “property” comes “from the estate of the deceased person concerned”, or accumulations of income or capital from such property. That would include income derived from property bought with the proceeds of sale of estate property. However, that would exclude income from:

Australian Parliament House

a) property injected into the testamentary trust by way of later gift;

deceased estate and not excepted trust income. $5,000 is excepted trust income on the basis that it is assessable income of the trust estate that resulted from a testamentary trust, derived from property transferred from the deceased estate.12

b) property injected into the testamentary trust by way of a later distribution from another trust; or c) property injected into the testamentary trust with borrowed money.

Thirdly (and perhaps less obviously), the amendments require that the property was transferred “to benefit the beneficiary from the estate of the deceased person concerned”. The Explanatory Memorandum for the amendments explains that this requirement: .. ensures that only beneficiaries included in the class of beneficiaries by the deceased, rather than an entity which was later added to the class of beneficiaries, can have excepted trust income under paragraph 102AG(2)(a)11.

As to the overall effect of the amendments, the Explanatory Memorandum provides the following example:

It may be that this is not a significant change, as this integrity issue has always been debatable where non-estate funds are added to a testamentary trust.

However, the tax planning opportunities, particularly for smaller estates, have been diminished.

Prior to the amendments, “excepted trust income” included income derived from assets injected into the testamentary trust after it was established (subject to antiavoidance rules13). Now, assets unrelated to the deceased estate cannot be injected into the testamentary trust to produce “excepted trust income”.

Endnotes

Example 1.1 Injected asset

1

On 1 July 2019, testamentary trust ABC is established under a will of which a minor is a beneficiary.

Pursuant to the will, $100,000 is transferred to the trustee from the estate of the deceased. Shortly after the testamentary trust is established, a related family trust makes a capital distribution of $1,000,000 to the testamentary trust. The resulting $1,100,000 is invested in ASX listed shares on the same day. Dividend income of $110,000 is derived for the 2019-20 income year. The net income of the trust is $110,000 and the minor is presently entitled to 50 per cent of the amount of net income.

2

The minor’s share of the net income of the trust is $55,000. $50,000 is attributable to assets unrelated to the

10 11 12 13

3 4

5

6 7 8 9

Division 6AA applies from 1 July 1979 onwards: section 102AB There are exceptions that take minors out of the punitive tax regime. However, Division 6AA applies to persons under the age of 18 years as at 30 June, the last day of the year of income: paragraph 102AC(1)(a) Subsection 102AG(1) For a recent political view on this see “Testamentary trusts are one of the last truly outrageous means of avoiding tax” by Dale Boccabella, Associate Professor of Taxation Law, UNSW – The Conversation (25 September 2020: 5:59am AEST) – https:// theconversation.com/testamentary-trusts-are-oneof-the-last-truly-outrageous-means-of-avoidingtax-142035 One of the few reported cases is The Trustee of the Estate of the Late AW Furse; A/C Jessica N Delaney and A/C Skye Nea Delaney) v the Commissioner of Taxation [1990] FCA 470 (27 November 1990) – see the judgment of Hill J at [57] & [58] For example, Private Ruling 50621 For example, Matthew Burgess in “Testamentary trusts: bespoke planning opportunities” in Taxation in Australia, Volume 48(9), April 2014 Budget Measures Budget Paper No.2 2018-19, page 44 Introduced by “Schedule 1 – Testamentary Trusts” of Treasury Laws Amendment (2019 Measures No. 3) Act 2020 (No. 64, 2020), assented to 22 June 2020 Item 3 of “Schedule 1 – Testamentary Trusts” At [1.14] At [1.17] Part IVA and subsection 102AG(4)

Taxing matters

by Clare Thompson Francis Burt Chambers

DPNs In recent years the use of a director penalty notice (DPN) to ensure compliance with taxation obligations by companies has increased with the expansion of the regime set up under Div 269 Schedule 1 Taxation Administration Act 1953 (TAA). A DPN is a notice issued to a director of a company requiring the director to pay a penalty equal to the amount of a specified outstanding taxation liability owed by the company.

A DPN must be acted upon within 21 days of being issued, failing which the Commissioner may take legal action to recover the penalty from the director as a debt owed to the Commonwealth.

DPNs cannot be issued in relation to all outstanding company taxation liabilities, eg, they can’t be issued for unpaid income tax, CGT or FBT owed by the company. This often means that a company has larger total tax liabilities than reflected in a DPN issued to one of the directors.

In Kedwell v DCT [2020] NSWCA 238, the NSW Court of Appeal considered two issues: whether the director had paid the debt, and an estoppel defence, by reason of the Commissioner having entered into discussions with the director about payment of the company’s debts.

On the payment argument, the director failed because he did not prove that the amounts paid by the company, S Pty Ltd, were paid in reduction of the director’s DPN debt. The payments were allocated in accordance with the usual allocation policy of the Commissioner set out in PSLA 2011/20, to the oldest debts in the running balance account of S Pty Ltd. The estoppel argument failed because the director did not establish any agreement.

In particular, the payments were made using the EFT reference for payment of S Pty Ltd’s debts, not the EFT reference for payment of the DPN debt, and the discussions with the Commissioner about the allocation of payments were plainly regarding the S Pty Ltd debt, not the DPN debt.

This is a familiar story: if a director wishes to have payments made by the company allocated to a DPN debt, the company must either enter into an agreement with the Commissioner to that effect, or make it plain that the payments are

intended to be allocated to the DPN debt, but because of s. 8AAZLE TAA, the Commissioner is not bound to follow the direction.

This issue arises frequently when the company’s debt is larger than the DPN debt and includes liabilities which are older than the DPN debt. In this case, S Pty Ltd owed the Commissioner over $1 million and the DPN debt was $385,000.

Disqualification from managing a superannuation fund A person convicted of an offence of dishonesty is automatically disqualified from managing a superannuation fund, including a self managed fund. If the conviction is not for an offence involving “serious dishonesty”, as defined in section 126B Superannuation Industry (Supervision) Act, they may apply for a waiver of the disqualification, but the application must be made within 14 days of the conviction.

In Etmekdjian and COT [2020] AATA 3821, the applicant had been convicted of dishonestly influencing a Commonwealth public official and applied to the AAT, out of time, for a waiver of the automatic disqualification.

By reason of the application being out of time, he needed to demonstrate “exceptional circumstances” meaning, genuinely unusual or rare so that there is a good reason for treating the case differently from other cases. The time limitation for an application is 14 days after conviction and in this case the applicant applied about 9 months after his conviction, 7 months after re-sentencing on appeal.

None of the matters raised constituted exceptional circumstances: the facts he relied on were delays in obtaining transcript, dealings with other regulatory bodies e.g. ASIC, and stress of both him and his wife. These matters are all common experiences.

Noting that the applicant maintained he had good arguments on the merits as to why he should be able to continue to manage his superannuation fund, the failure to establish exceptional circumstances which prevented him making the application led, inevitably, to its dismissal.

Disciplinary powers of the Tax Practitioners Board Recently the AAT considered the scope of orders which the Tax Practitioners Board (TPB) may make under section 30-20 Tax Agents Services Act (TASA).

In Eley and TPB [2020] AATA 3192, the practitioner’s licence was suspended for 4 months and a condition imposed under section 30-20 requiring him to pay or enter into an agreement to pay an outstanding taxation liability to the Commissioner, by a particular date. At issue in the AAT was the scope of the power in section 30-20 TASA, and in particular whether it was limited to orders pertaining to competence and skills, e.g. to undergo training, supervision etc, or had a wider application.

The AAT found that the intent and scope of section 30-20 was to provide tailored sanctions for the breach of the code of conduct which a tax practitioner is found to have committed. The words of the chapeau were broad and permitted tailored orders, aimed at the conduct which was impugned, rather than being limited to the examples identified in paragraphs (a) – (d) of the section.

It followed that the purpose of making orders under section 30-20 requiring an agent to take specified action included action to address the breach of the code of conduct identified by the TPB. In this case, the breach of the code was the failure to pay long outstanding taxation debts so that an order which was aimed at addressing that breach was within the scope of the section.

Trust disclaimers In Carter v COT [2020] FCAFC 150, the Full Court found that a disclaimer of income made by a beneficiary more than two years after the end of the tax year was effective to disclaim income from a trust, so as to retrospectively displace the application of section 97(1) Income Tax Assessment Act 1936.

The Commissioner has filed an application for special leave to appeal to the High Court.

41

La Salle Legal team, From left to right: ‘La Salle Legal’ - Jordan Curry, Christof Nguyen, Jordan Jakimowicz, Michaelynn Alfred, Gillina Miller and Georgia Marciano. (Absent: Tim Tolich.)

Mock Trial Competition Event Wrap Up The 2020 Mock Trial Competition was successfully staged despite some changes to its usual time frame and format, imposed upon us by the coronavirus emergency.

We were able to provide the opportunity for students to complete three rounds and thereby achieve WACE accreditation. 625 school students participated in the 2020 season.

We suspended our programme in the middle of March, and in May we hosted two successful trials on Zoom. In June we obtained permission from the Chief Justice to return to the courtrooms of the Supreme Court for mock trials. The remaining Round 1 trials could then be rescheduled as courtroom trials. Round 2 42 | BRIEF DECEMBER 2020

was enacted in August in the courtrooms of the Supreme Court in Stirling Gardens, as was the third and final round in September.

The team at the top of the table at the end of Round 3 was chosen as the winning team. That team was ‘La Salle Legal’ from La Salle College in Middle Swan. The team included several Year 12 students who had been participating for three seasons, and who had reached the finals rounds in previous years. Congratulations to the whole team and to their teacher, Ms Peta Handley.

La Salle College has been part of the Society’s Competition for many years.

Perth College teacher, Ms Haylie Pepper, taught at La Salle previously, and her former mock trial students Luke Spadano and Chanel Dimascio now act as coaches in the programme. The Law Society encourages lawyers and law students who enjoyed this co-curricular activity as

school students to join us as judges or coaches in 2021.

Students from ‘La Salle Legal’ were awarded trophies and plaques by Nicholas van Hattem, President of the Law Society, at a formal assembly at La Salle College on 11 November, 2020.

Mr van Hattem honoured the students’ achievement and spoke about the importance of the rule of law.

The President acknowledged the support for the Mock Trial Competition provided by the Supreme Court of Western Australia and by the Department of Justice and the Public Purposes Trust.

He noted that the Competition is also supported by its Law School Partners: Curtin University, Murdoch University and the University of Western Australia; and by Francis Burt Chambers in its role as the Student Access Partner, covering the registration fees for less advantaged schools.

The Society would like to extend its gratitude to the many members of the legal profession including the 78 judges’ associates, legal practitioners, legal academics and law students who acted as coaches and judges in the 2020 Competition.

The Law Society’s Mock Trial Competition gives students an enjoyable and dynamic introduction to the law. The mock trials are fictional civil and criminal cases, with the rules of evidence and procedures modified and simplified. Each team

prepares their own case, with support from a volunteer practitioner who takes on the role of a coach, and in the mock trials the students take on the roles of barristers, solicitors, court staff and witnesses.

Students are judged on their opening addresses, witness examinations, objections based on responses, closing statements and other court activities.

courthouses. Each trial lasts up to two and a half hours.

Lawyers interested in volunteering as a coach or judge in 2021 are invited to contact the Mock Trial Coordinator at mocktrial@lawsocietywa.asn.au The Society will be running an information session in February 2021 as an introduction to the Competition for new volunteers.

Teams of between eight and 12 compete in the Supreme Court and other local

President Nicholas van Hattem and college principal Giovanna Fiume at La Salle Assembly for Mock Trial awards presentation

President Nicholas van Hattem , the winning team and Clinton Russell from Francis Burt Chambers – Students Access Partner.

Student Access Partner

Premium Partners

WA Law School Partners

We extend our thanks to the following members of the profession who volunteered as coaches or judges in the 2020 Competition. The programme would not be possible without your support.

COACHES Anthony Durand Chanel Dimascio Claire Rossi Craig McIntosh Danika Adair-La Eugene Wong Gerald Hoe John McKechnie John Robertson Kenyon Lee Kiri-Lee George Luke Spadano Marc Saupin

Niamh Wilkins Nicholas Camer-Pesci Rein Squires Sean Gomes JUDGES Adam Ebell Alexander Dew Aoning Li Ashley Roberts Ashooja Chandra Caris Tysoe Carolyn Meighan Catinca Hozoc-Martin

Chad Silver Chadd Graham Clancy Hindmarsh Clinton Ducas Daniel Harrop Daniel Morey Daphne Schilizzi Gad Coffie Gemma McGrath Gerald Hoe Greg Mohen Hannah Pike Heidi Watson James Jackson

James Marzec Jay Tampi Jessica Tower Johanna More Jon Papalia Kate Offer Kathryn Roach Khew Wong Leslie Gabriel Mark Hemery Michael Cornes Midaiah Harnett Nicholas Mountain Nicola Thomas-Evans

Patrick Mackenzie Philip Hardless Rachael King Rhianna Brims Rhiarne Bruce Rhys Mola Rob Coales Robert Lilley Roisin Keating Sam Hemachandra Seamus Rafferty Sean Stocks Timothy Lethbridge

43

HIGH COURT JUDGMENTS Dr Michelle Sharpe Castan Chambers, Melbourne

Native title – delegation of functions Delegation and agency – what’s the difference? Quite a lot according to Nettle and Edelman JJ. In Northern Land Council & Anor v Quall & Anor [2020] HCA 33 (7 October 2020) the High Court was required to consider whether the North Land Council (NLC) has the power to delegate to its Chief Executive Officer (CEO) the function, conferred on it by s203BE(1)(b) of the Native Title Act 1993 (Cth) (NT Act), of certifying applications for registration of Indigenous land use agreements (ILUAs).

ILUAs are voluntary agreements between a native title group and others on the use of land or waters.

Future acts that affect native title rights and interests (such as, for example, the grant of a mining tenement or the compulsory acquisition of land) are invalid unless they are permitted under an ILUA that is registered on the Register of Indigenous Land Use Agreements. One requirement for the making of an application for registration of an ILUA concerns the identification of people who may hold native title rights, in respect of the area affected by the ILUA, and the authorisation, by those people, of the ILUA. Under the NT Act this requirement can be met in two ways. One way is by obtaining a certification of the application by all representative bodies for the area in the performance of their functions under s203(1)(b) of the NT Act (certification function). Under the 44 | BRIEF DECEMBER 2020

NT Act a “representative body” is defined as a body corporate recognised by the minister to be a representative body for an area.

Section 203BE(5) of the NT Act provides that a representative body must not certify an ILUA unless it is of the opinion that it has made all reasonable efforts to identify people who hold native title rights in relation to the area covered by the ILUA and that those people authorise the making of the ILUA. Relevant to the carrying out of the certification function, s203BK of the NT Act provides that a “representative body has power to do all things necessary or convenient to be done for or in connection with the performance of its functions”. And s203FH provides that the state of mind of a Land Council is the state of mind of its employees or agents and the conduct of employees and agents will be deemed to be the conduct of the representative body.

The NLC is a representative body.

The NLC is one of a number of Land Councils established under Part III of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALR Act). Each Land Council represents Aboriginal and/ or Torres Strait Islander bodies in a particular area. The Land Council is a body corporate. The functions of the Land Council are set out in Part III of the ALR Act. The members of the Land Council consist of Aboriginal people who have been chosen in accordance with a method approved of by the Minister. Section 203BK of the NT Act is mirrored in s27(1) of the ALR Act which provides that a Land Council may “do all things

necessary or convenient to be done for or in connection with the performance of its functions and, without limiting the generality of the foregoing may: (a) employ staff...”

Sections 28(1) and (2) specifically provide that a Land Council may delegate to a member of its staff, among others, any of the Land Council’s functions or powers under the ALR Act other than those specifically excluded under the provision (which does not include the certification function).

In 2016, the NLC made an ILUA in relation to land and waters at the Cox Peninsula near Darwin.

In February 2017, the ILUA was varied (Kenbi ILUA). In March 2017, the CEO (employed by the NLC as a member of its staff) signed a certificate purporting to act as a delegate of the NLC (Kenbi Certificate). The Kenbi Certificate stated that the NLC had certified the application for registration of the Kenbi ILUA, pursuant to s203BR(1)(b) of the NT Act, and that the requirements set out in s203BE(5) had been met. Mr Quall and Mr Fejo commenced judicial review proceedings in the Federal Court challenging the Kenbi Certificate on two, alternative, grounds. First, they argued that the NLC could not delegate its certification function. Second, they argued that, if the certification function was delegable, it had not been validly delegated by the NLC to the CEO. The primary judge rejected the first ground of review but accepted the second. Accordingly, the primary judge declared the Kenbi Certificate did not amount to certification pursuant to s203BE(1)

(b) of the NT Act. The NLC and CEO appealed to the Full Court of the Federal Court in respect of the primary judge’s finding that the NLC had not validly delegated its certification function to the CEO. Mr Quall and Mr Fejo brought a cross-appeal in which they challenged the primary judge’s finding that the NLC’s certification function was delegable. The Full Court allowed the cross-appeal making it unnecessary to consider the NLC and CEO’s appeal. The NLC and CEO then appealed to the High Court. Given the importance of the issues to be determined in the appeal the Attorneys-General of the Commonwealth and the Northern Territory intervened.

The High Court unanimously allowed the appeal but was divided into two different camps in respect of its reasons: the “delegation camp” (Kiefel CJ and Gageler and Keane JJ) and the “agency camp” (Nettle and Edelman JJ).

The delegation camp noted at [65] the presumption of statutory interpretation that a statutory function is to be performed only by the statutory repository of the function, and no one else, unless otherwise indicated in the statute (being the maxim delegatus non potest delegare). The delegation camp considered at [66]-[69]) that ss27 and 28 of the ALR Act and ss203BK and 203FH of the NT Act (and the fact that a representative

body is a body corporate) indicated that a representative body had the power to delegate the certification function if it was objectively necessary or convenient to the performance of the function.

The delegation camp remitted the matter to the Full Court to determine whether the NLC had validly delegated its certification function to the CEO. Conversely, the agency camp considered at [78] that the certification function was “almost a textbook example of functions that would be non-delegable by implication”. The agency camp also considered at [78] that delegation of the certification function was expressly prohibited by s203B(3) of the NT Act which provided “. . . a representative body must not enter into an arrangement with another person under which the person is to perform the functions of the representative body”. But the agency camp reasoned that the power to act personally through an agent was an entirely different matter to a delegation. Conceding that the terms “agency” and “delegation” were confusingly similar, and often used interchangeably, the agency camp noted at [77] that “they connote different sources of validity for acts”. The agency camp points out at [77] and [81][85] that an “agent, in a strict or precise sense, acts on behalf of

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another and generally in the name of that other. The agent’s acts are attributed to the other. A delegate, in a strict or precise sense, acts on their own behalf and generally in their own name”. The agency camp notes at [93] that given the representative body’s multitude of functions it is a matter of practical necessity that those functions be performed by agents and at [97] that there was no justification for treating the certification function any differently. The agency camp remitted the matter to the Full Court to determine whether NLC’s constitutive statutes and instruments permitted the CEO to act as agent for the NLC in respect of its certification of the Kenbi ILUA and signing the Kenbi Certificate.

Dr Michelle Sharpe is a Victorian barrister practising in general commercial, disciplinary and regulatory law, ph 9225 8722, email msharpe@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au.

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45

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

Property – Husband fined $54,000 for buying $180,000 of cryptocurrency in breach of an injunction

Property – Bankrupt de facto partner precluded from making submissions as to existing equitable proprietary interest

In Lescosky & Durante [2020] FamCAFC 179 (28 July 2020) Strickland J, sitting in the appellate division of the Family Court of Australia, heard a case where the husband breached an injunction 18 times, purchasing $180,000 of cryptocurrency, for which he was fined $54,000.

In Walford & Bantock and Anor [2020] FamCAFC 210 (21 August 2020) the Full Court (Ainslie-Wallace, Watts & Austin JJ) heard a case where a de facto husband had brought property adjustment proceedings while the de facto wife was bankrupt.

The husband appealed, arguing that the Magistrate had not taken into account the “totality principle”. Strickland J said (from [13]): “… [I]t is not the case that the court … must apply any so-called principle of sentencing … apart of course, from what appears in the Family Law Act 1975 (Cth) ( … ) [15] Thus, it is not open for the husband to assert error by the Magistrate in failing to follow the ‘totality principle’, or failing to apply s 6 of the Sentencing Act 1995 (WA) or s 16A of the Crimes Act 1914 (Cth). Further, there is ample authority to the effect that ‘review of the punishments in other cases is of limited assistance, as each case really depends upon the Court’s assessment of the relevant facts ( … ) [17] The task for her Honour was to fix a sanction or sanctions that her Honour considered to be the most appropriate in the circumstance (s 112AD). ( … ) [21] What … her Honour did was impose a fine of $3,000 for each of the 18 contraventions, and aggregate those fines, arriving at a total fine of $54,000. ( … ) [25] … [H]er Honour did what the husband said the sentencing principles and the decided cases required her to do. … [S]he identified the maximum allowable fine for each contravention … concluding ‘that the maximum prescribed limit for each contravention is not appropriate given the number of admitted contraventions and the quantum of funds involved’. Her Honour added that she was ‘mindful that the fine is at the lower end of the spectrum for each individual breach, however the total is a significant sum’ ( … ) [26] That approach accords with what the husband has described as the ‘totality principle’ ( … )” The husband’s appeal was dismissed.

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As ss 90SM(15) and (16) prevents a bankrupt from making submissions as to vested property without leave and where the bankrupt must establish “exceptional circumstances” for such leave, the bankrupt unsuccessfully argued that she should be granted leave to make submissions as to her having an equitable interest in the de facto husband’s real property.

Austin J said (from [16]): “[The de facto husband, respondent] … seeks an order granting him exclusive title to the home so … he denies that the applicant enjoys any equitable interest in the home …

[17] If the [de facto wife] applicant is subsequently found not to have any equitable interest in the home then any share in its title which is settled upon her by an adjustment order made in the exercise of discretion under Part VIIIAB of the Act does not constitute ‘after-acquired property’ under the Bankruptcy Act and did not vest in the trustee. The reason for the distinction is that the applicant’s proprietary interest in the home is only created by the Court’s ultimate exercise of statutory discretion; not recognised by the fulfilment of an equitable cause of action ( … ) [20] ( … ) The embargo under s 90SM(15) of the Act only precludes the applicant from making submissions at trial ‘in connection with’ any existing equitable proprietary interest she enjoys in the home, as that would be ‘vested bankruptcy property’ and therefore the exclusive province of argument between the trustee and the respondent. The applicant is not precluded by the ruling from making final submissions about her entitlement to non-vested property under the provisions of Part VIIIAB of the Act. [23] Not only is the appealed order interlocutory in nature, it … pertains to practice and procedure …

Accordingly, particular caution should be exercised in granting leave to

appeal from it ( … )” Watts and Ainslie Wallace JJ agreed, dismissing the application for leave to appeal.

Property – No error in Court’s refusal to disjoin corporate trustees of family trusts In E Pty Ltd and Ors & Zunino and Anor [2020] FamCAFC 216 (1 September 2020) the Full Court (Ainslie-Wallace, Ryan & Tree JJ) heard a case where a wife had named 3 companies as respondents, of which the husband was a former director.

The wife sought declarations that each entity held real estate on trust for her; each company having sought orders for disjoinder.

The Full Court said (from [13]): “The [corporate] appellants carefully established that although the husband had been a director of the entities … he had never had explicit legal title to the entities. Senior counsel for the wife … explained that … the husband was the controlling mind and the entities his alter ego … To this end, the wife pointed to a raft of ‘uncommercial’ transactions and what she said were the spouse party’s more or less exclusive use of the subject properties. ( … ) [18] In deciding against the appellants, the primary judge took into account the circumstantial nature of the wife’s case … [I]t is tolerably clear that his Honour thought … the wife’s case appeared weak … but … he was not satisfied that she had no reasonable likelihood of establishing that the husband exercises effective control over the entities as his alter ego ( … ) [24] We … agree with the primary judge that as the appellants ‘may’ be directly affected by the wife’s case raised against them … they are necessary parties (r 6.02) … Plainly … the appellants ‘may’ be deprived of their beneficial ownership of valuable property …

[25] His Honour’s decision to reject the appellants’ application to be removed as parties was correct … ”

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.

Vale Hon David Ipp AO QC The Hon David Ipp AO QC died on 8 October 2020 at the age of 82. With his passing, Australia lost one of its fiercest judicial intellects.

Because he transferred from WA to NSW in 2001, many in the profession will know him only by name and reputation.

In his 20 years in WA, he was an elemental force.

Born in 1938 in South Africa and educated at Stellenbosch University before being admitted to practice, David, Erina and their 3 children migrated to Perth in 1981 where David joined Parker and Parker (now Herbert Smith Freehills).

In the next 8 years, such was his ability, he joined the WA Bar Association, made silk in 1985 and appointed to the Supreme Court in 1989 at the height of his powers at age 50.

He was part of the new broom of judges brought into the Court by Chief Justice David Malcolm from 1988.

Justice Ipp did much of the heavy lifting for the mini blitz and the August blitz. The blitz was designed to overcome the considerable backlog in the Supreme Court. It has passed into legal folklore and many older practitioners can tell of the terror of an Ipp listing conference. Woe betide any brave soul seeking an adjournment.

Somehow, he also managed to find time to be a Fulbright scholar at University of Virginia in 1994.

Justice Ipp was one of the drivers of what is now the Commercial and Managed Causes list and the consequent rule changes.

Brilliant though Ipp was in most aspects of the law, he never really ‘took’ to the criminal jurisdiction. The institution of a jury was foreign to his legal background and he did not have the common touch of a Henry Wallwork.

Ipp’s forte was appellate work and as he advanced in seniority he was generally to be

found in Court 1, throwing razor-sharp questions at counsel. Unlike some judges, Ipp could be persuaded out of a strongly held tentative view if an argument had merit and counsel were prepared to stand their ground. He was happiest when he had able counsel with whom to debate.

Delays in the establishment of a court of appeal led Ipp to greener pastures in 2001, first on secondment, then permanent appointment to the NSW Court of Appeal. He was however delighted when his fellow South African and close friend the Hon Chris Steytler AO QC was appointed first President of the WA Court of Appeal.

The collapse of the insurer HIH led to a Royal Commission under another friend and colleague Hon Neville Owen. It also led to the establishment of an eminent persons group by Prime Minister John Howard. Their work, published in 2002 and known widely as the Ipp Report led to significant tort law reform throughout Australia.

Ipp left the Court of Appeal in 2009 and took appointment as ICAC Commissioner, retiring in 2014 due to declining health. His term as Commissioner included some spectacular hearings and reports into corruption. It also led to Ipp being sued personally. Despite the baseless allegations being described by the judge in dismissing the action as “unmaintainable” and “irresponsibly made”, the litigation took its toll on a man who rightfully valued his integrity and reputation.

Despite ill health, David Ipp remained active, participating, among other things, in the Centre for Public Integrity and making occasional forays into law reform such as defamation. His intellect and thirst for knowledge remained undimmed despite his physical afflictions, as did his sense of humour and booming laugh.

Ipp was a strong supporter of the profession and served as treasurer of the Law Society. Tall and intimidating on first meeting, David was friendly, helpful and loyal on closer acquaintance.

47

The Tale of a Student in a Bind

By John McKechnie QC

In November 1948, 5 year old Rita arrived in Fremantle with her parents, leaving wet and war weary England behind them.

Little Rita grew up with ambitions to be a teacher. Her mum was a homemaker and her Dad was a carter. Money was tight. Rita and her dad did what was then common.

In return for an education in teaching, Rita entered into a bond, with her dad as guarantor.

And so, in 1961, Rita enrolled at Graylands Teacher Training College, then a collection of ramshackle buildings, boiling in summer and freezing in winter.

Graylands was established in the 1950’s as a temporary facility to deal with the demand for teachers in a baby booming state.

Rita was one of a large cohort of females – they outnumbered men 5:1.

This imbalance was necessary as we shall see.

The next year Rita continued her studies and was part of the production team for Miss Hook of Holland, a student musical. Then in June, she found to her surprise that she was pregnant.

Rita and her boyfriend wished to regularise the situation by marriage and the sooner the better.

And therein lies the problem – and the reason for the great disparity in student numbers. Training lots of women students was necessary because they had the pesky habit of getting married.

Australian public services had a marriage bar. A woman employed in public service was required to resign on marriage. Obviously the males who led politics, the public service and the judiciary knew far better than women what a woman could not do. Those men clearly thought that a woman would be quite unable to multitask her spousal and family duties with a career.

surprising it was written on both sides of the paper.

Rita and her dad resisted the claim. The Minister for Education sued.

There was then, and is now, a rule of public policy that covenants in restraint of trade or marriage are illegal.

But as most things in the law there is always some wriggle room, as Justice Virtue deployed in his judgment.

A restraint is not necessarily illegal if it is reasonable.

Noting (quoting Lord Davey) that public policy is always an unsafe and treacherous ground for legal decision, the judge concluded that the public policy rule could be tested on the basis of reasonableness. Then he hit his straps.

“It is clear from the regulations that the policy of the Department is opposed to the appointment of married women as permanent teachers and there is nothing against public policy in this. Probably the reverse because in the ordinary way it would no doubt more often than not be for the benefit of the community that a married woman should be free to devote herself to her ordinary domestic duties and to the bringing up of her family rather than that she should be offered any particular inducement to engage in full time employment.”

Nor did the judge think it wrong to offer some slight discouragement to marriage until a woman was in her early twenties.

The argument that Rita was an infant when she entered into the contract fared no better. The contract was for her benefit and was binding.

The upshot was that in 1965 Rita and her dad lost – by about 4 years.

Back to Rita. Typical woman. She wanted it all – marriage – completion of studies – a career in teaching. Mr Biggins, acting Principal at Graylands soon put her right.

Two years on, the Holt government ended the marriage ban for the Commonwealth public service. The States followed.

Rita was told that she could continue and complete her course notwithstanding that she was pregnant but if she intended to marry, she would have to resign.

Four years on, in 1969, the Education Department admitted 5 married women to study at Claremont and Graylands Teachers Colleges.

Read that again. Yes, it is still as stupid as the first time.

In 1984 the Equal Opportunity Act made it illegal to discriminate against a person on the grounds of marital status or pregnancy.

So Rita, left with little choice, signed the letter of resignation that Mr Biggins had drafted.

Now arose the question of the bond. Rita and her father would have to pay it back. It was more than 250 pounds.

The conditions, especially about marriage, were very restrictive. In fact, the bond was so one sided it was

48 | BRIEF DECEMBER 2020

And Rita? She married, lived happily and in due course qualified and became a primary school teacher.

(Adapted from Minister for Education v Moreschini [1965] WASC 40)

49

Law Council Update Time to revisit ALRC report to close the justice gap A panel of Indigenous leaders has called on the necessity for governments to listen to Aboriginal and Torres Strait Islander peoples and have ‘challenging discussions’ if there is ever going to be a drop in their alarming incarceration rates.

Statistics show that Indigenous people in Australia fare worse at every stage of the criminal justice process compared to non-Indigenous people. In 2016, they were 7 times more likely to be charged with a criminal offence and appear before the courts; 11 times more likely to be held in prison on remand awaiting trial or sentence, and 12.5 times more likely to receive a sentence of imprisonment following conviction.

At the Law Council’s recent webinar, attendees heard Dr Hannah McGlade, Dr Tracey McIntosh, Mr Tony McAvoy SC and Ms Karly Warner reflect on the need for an understanding of the close connection between the history of colonisation and trauma experienced

by First Nations peoples and interaction with the criminal justice system, and move from punitive to preventative, trauma-informed approaches.

Law Council President and panel chair, Ms Pauline Wright, said the fact that Indigenous Australians are the most incarcerated people on earth is a national tragedy, deserving urgent attention.

“The Australian Law Reform Commission’s Pathways to Justice final report was tabled in March 2018, and since then there has been only sporadic government engagement with many of its specific recommendations. More than two years later it is time to revisit the report, which provides a comprehensive framework for governments to meet the new Closing the Gap refresh justice targets,” Ms Wright said.

“The panel spoke of the frustration felt within communities when effective, proven, solutions are ready to be implemented right now, such as justice reinvestment, Aboriginal sentencing courts, Aboriginal Justice Advisory Committees and bail accommodation,

50 | BRIEF DECEMBER 2020

yet little is happening. The evidence is in, but the reports are languishing on the shelves.”

“One key message from the discussion was that our decision-makers should consider where we would have been as a nation today, had we taken heed and implemented the recommendations of the various reports at the time they were recommended.

“The panel also identified the need for systemic and transformative change to address the over-incarceration of First Nations people, and that this is not something that can be fixed with merely tweaking legislation. Instead a true partnership is needed between Aboriginal people, their representatives and government. The panel observed this is not always happening in all jurisdictions.” Ms Wright said.

Data retention legislation needs more work The release of the Parliamentary Joint Committee on Intelligence and Security’s review of the mandatory data retention regime clears the way for the immediate implementation of the 22 recommendations contained in the report, says the Law Council of Australia.

Law Council President, Pauline Wright, said the bipartisan report, tabled in Federal Parliament yesterday, is evidence the Committee shares the Law Council’s view that improvement is required to ensure the scheme’s proportionality.

“The Report specifically recommends that the Law Council should be consulted in (a) the development of national guidelines on the operation of the scheme; and (b) defining the term ‘content or substance of a communication’, and we are ready and willing to assist in that regard,” Ms Wright said.

“Notably, it is clear that the mandatory data retention scheme as currently contained in Part 5-1A of the Telecommunications (Interception and Access) Act 1979 (Cth), has the potential to intrude on the privacy of all

Australians, not just suspected criminals or people of national security interest.

The Law Council maintains that access to telecommunications data must only be permitted when the public interest in detecting serious criminal activity or threats to national security outweigh intrusion into the private lives of Australians by the State.

“The Committee’s 22 recommendations that address deficiencies in the current framework, should be implemented as soon as possible,” Ms Wright said.

“This includes repealing s 280(1)(b) of the Telecommunications Act 1997 (Cth) which creates a ‘backdoor’ for a wide variety of public and private bodies to access telecommunications data, where they would otherwise be excluded by the framework under the Telecommunications (Interception and Access) Act 1979 (Cth).

“Steps must be taken to ensure that the current lack of proportionality is addressed. The Law Council also supports the Committee’s recommendations to increase the threshold for accessing existing information or documents by law enforcement agencies, and to make ASIO’s authority to disclose telecommunications data consistent with the threshold enabling ASIO to intercept telecommunications or access stored communications under a telecommunications service warrant,” Ms Wright said.

“The Law Council also fully endorses the Committee’s recommendation that the Department of Home Affairs prepare national guidelines on the operation of the mandatory data retention scheme by enforcement agencies and define the term ‘content or substance of a communication’.

“It is pleasing to see that the Committee has expressly recommended the Law Council be consulted, and we look forward to engaging with stakeholders in this process,” Ms Wright said.

Professional Announcements Pragma Lawyers We are pleased to welcome Madeleine Brown as a Senior Associate of the firm.

Madeleine holds a Bachelor of Laws and Madeleine Brown a Bachelor of Arts from the University of Western Australia.

She is a specialist employment lawyer.

She recently worked as a senior associate at a top boutique employment law firm assisting senior executives, professionals and small medium enterprises. She can assist with a broad range of employment law issues including negotiating an exit, award and agreement interpretation, investigations, misconduct and termination, restraints of trade and dismissal disputes.

Madeleine is described by her clients as pragmatic, commercial and outcomesfocused.

We are looking forward to having Madeleine join our growing Employment Law sector of Pragma Lawyers.

Congratulations Madeleine!

We are also pleased to welcome Melanie Lynn as a Senior Associate of the firm.

Melanie acts for individuals, companies, and their directors, Melanie Lynn government agencies and not-for-profit groups.

She has extensive experience practising commercial litigation and dispute resolution. She has acted in a wide range of matters including disputes arising out of contract, property disputes, Corporations Act matters, equitable actions, intellectual property disputes and insurance. She represents her clients in all State and Commonwealth courts and tribunals.

Panetta McGrath Lawyers Panetta McGrath Lawyers has welcomed Sean Foy as a Solicitor in its Employment and Workplace Relations team.

Sean Foy

Before joining the legal profession in 2020, Sean worked as an industrial relations advisor for 25 years advising across industries including construction, mining and oil and gas.

Sean also brings to the team his significant experience of working with executive groups on HR and employee relations strategy, project planning and contractor management.

Melanie graduated from the University of Western Australia and also holds a Master of Laws from that University.

She is admitted to the Supreme Court of Western Australia and the High Court of Australia.

New Members

Classifieds

New members joining the Law Society (November 2020)

Missing Will

Missing Will

Would any person or firm holding or knowing the existence or whereabouts of a Will or other testamentary document of SAMUEL RODGERS, 8 January 1930, late of 17/99 Burslem Drive, Maddington, Western Australia, who died on 9 May 2020, please contact Joss Legal Suite 1.6, Level 1, 9 Bowman St, South Perth, WA 6151 on 08 6559 7480 or email lawyers@josslegal.com.au.

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51

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

Member Assistance Programme

Employee Relations Advice Line

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

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

Service provided by Converge International

Service provided by CCIWA

Phone: 1300 687 327

Phone: (08) 9365 7660

Practitioner Advice

CoronaCare

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

LawCare WA now includes a suite of dedicated support programmes called ‘CoronaCare’ to help support you and your organisation manage through the uncertainty that we are all experiencing as a result of the emergence of COVID-19 (Coronavirus). Visit our website to find out more.

Referral service provided by WABA

Phone: (08) 9220 0477

Service provided by Converge International

Phone: 1300 687 327 LawCare WA is available to members of

For more information about LawCare WA please visit

lawsocietywa.asn.au/lawcare

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