Brief February 2020

VOLUME 47 | NUMBER 1 | FEBRUARY 2020

Interview with the Hon John Quigley MLA, Attorney General of Western Australia Also inside...

A Fresh Approach to Aboriginal Self-Government and Co-Government – Grassroots Empowerment The Law in a Climate of Change: Inaugural Sir Francis Burt Oration Justice Reinvestment: Building Communities Not Prisons The Common Law, Contemporary Values and Sophocles’ Antigone

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Volume 47 | Number 1 | February 2020

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CONTENTS

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FOLLOW US lawsocietywa.asn.au LawSocietyWA @LawSocietyWA

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ARTICLES 06

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Interview with the Hon John Quigley MLA, Attorney General of Western Australia A Fresh Approach to Aboriginal Self-Government and CoGovernment – Grassroots Empowerment Introduction to the Inaugural Sir Francis Burt Oration The Law in a Climate of Change: Inaugural Sir Francis Burt Oration

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Justice Reinvestment: Building Communities Not Prisons The Common Law, Contemporary Values and Sophocles’ Antigone: Robert French Oration

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.

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

The Law Society's Mock Trial Competition

Editor: Jason MacLaurin SC

Continuing Professional Development Calendar

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

For details, contact brief@lawsocietywa.asn.au

REGULARS 02 President's Report

42 Family Law Case Notes

04 Editor's Opinion

44 Quirky Cases

33 Taxing Matters

45 Cartoon

36 Book Review: Griffith Review 65: Crimes and Punishments

46 Law Council Update

37 Ethics Column: Priority Ordering

48 Classifieds

38 High Court Judgments

48 New Members

40 Federal Court Judgments

49 Events Calendar

47 Professional Announcements

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

01

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

Welcome to the first edition of Brief for 2020.

This year will be another exciting year for the Law Society and our profession. Our Council, Executive, committees and staff look forward to working with you, our valued members, in 2020.

In January, the Society joined UWA and many other legal associations to host a special CPD fundraiser event to raise money for the Red Cross Australian bushfire relief fund. It was wonderful to see such broad support of the event. Some more details are set out below.

In February, the Society’s Council and Executive will hold our first meetings of the year. We welcome new members who join the Council following the recent election. Council’s diversity of experience and perspectives is a key asset for the Society. This year also sees the best regional representation that we have seen in some time. Many Council members have some experience in the regions, particularly Senior Vice President Jocelyne Boujos and Jamie Hodgkinson, and our Country Member Melita Medcalf being based in the Pilbara. I look forward to seeing what we can all achieve together for our profession and the wider community.

Welcome also to those members who have been reappointed or newly appointed to Society committees, following the recent biennial review. Some more observations in this regard are set out under ‘Advocacy’ below.

Looking forward, some important milestones in 2020 include the 15th anniversary of the State Administrative Tribunal, 40th anniversary of the Society’s Young Lawyers Committee, the launch of the new 2020-2023 Law Society Strategic Plan and the 50th anniversary of the District Court of Western Australia – more on the latter below and in the full page advertisement directly across from this Report.

It will be a full year, with much to look forward to. I’m keen to hear from you if you have any ideas for 2020. You can email me directly on president@lawsocietywa.asn.au. Best wishes for the year, and we hope to see you at a Society event soon!

Bushfire Support The collaborative event on 30 January was a great success. The well attended talk was a reminder of our profession’s closeness and willingness to support one another. The contributions of the Hon Robert French AC and Associate Profession David Hodgkinson were also a reminder (if one was ever needed) that WA is home to some of the leading minds and voices in climate law.

Prof Hodgkinson examined the history and current efforts to establish regulatory mechanisms to address climate change.

His paper was both detailed and deeply

02 | BRIEF FEBRUARY 2020

engaging. Particularly resonating were his remarks on inter-generational disequity, and the relationship between climate change and bushfires – including the impactful observation that longer fire seasons means less scope for states and nations to share fire-fighting resources. In truth, there was little to be hopeful in the Professor’s detailed observations. One optimistic take away: so many of our profession gave up their Thursday evenings to engage with this important subject matter.

UWA Chancellor and former Chief Justice of Australia the Hon Robert French AC provided introductory remarks, with a welcome by Professor Robyn Carroll, Deputy Head Community and Engagement, UWA Law School. Mr French also gave an account of recent worldwide litigation addressing climate change. The Society looks forward to making their papers available shortly.

In addition to the generous hosting and coordination from the Law School, we thank WA Bar Association, Asian Australian Lawyers Association, Association of Corporate Counsel Australia, Australian Lawyers Alliance, Community Legal WA, Criminal Lawyers Association WA, Environmental Defenders Office, Family Law Practitioners' Association of WA, National Environmental Law Association, the Piddington Society and the WA Society of Jewish Jurists and Lawyers for their support of the event.

Legal Aid WA anticipates there will be a need for the WA legal profession to provide pro bono assistance to those affected by bushfires. If you are able to provide legal assistance at any time during summer 2020, please provide an expression of interest to Legal Aid WA via email at naturaldisasters@legalaid.wa.gov.au.

If you can assist, please include the following information: • • • •

Name of lawyer; Firm name and address; Telephone and email contacts; and Area of practice/willingness to assist, for example: insurance, property, credit/ debt, tenancy, employment, family law, other.

Uniform Law Update On 21 November 2019, the Attorney General provided the Society with a confidential draft of the Legal Profession Uniform Law Application Bill 2019 (WA) (UL Bill). The Society’s Working Group, comprising Executive Members and representatives from committees, Law Mutual (WA) and large firms, reviewed the UL Bill and provided the Attorney General with its submission on 11 December 2019.

In January, the Society and the instructing officer from the State Solicitors’ Office continued to discuss the draft clauses that

require further consideration. It is still the Society’s understanding that the Attorney General intends to introduce the UL Bill when Parliament returns this year, so that it can be passed by 1 July 2020. Details about the timing for the implementation required under the UL Bill are currently being discussed and we will be requesting that the Attorney General provide these once the draft Bill has been finalised.

Advocacy One of the objects of the Society, as outlined in its Constitution, is to promote the development and improvement of the law in Western Australia. To this end, the Society will continue to advocate for law reforms that will enhance the legal profession and benefit the community in 2020.

Key focus areas include the retention and engagement of legal practitioners (if you have a spare 10 minutes, please take our legal profession survey at https://bit.ly/2u2lx4l), initiatives arising from the Law Council of Australia’s Justice Project Report and the Royal Commission into Aged Care Quality and Safety.

The Society’s committees play an essential role in providing high-quality advice and opinions to the Council, enabling the Society to make informed policy decisions and submissions.

The Society benefits immeasurably from the expertise and commitment of its volunteer committee members and the Society is grateful for all of the vital work they perform.

Advocacy is one of the Society’s most important functions, and presents one of our greatest challenges. The demands are significant, there is inevitably need for broad consultation, and timeframes are often very compressed. We anticipate the need for advocacy in many areas in 2020, and we are always keen to hear from members with ideas or a willingness to assist. I can be contacted directly at president@lawsocietywa.asn.au.

District Court 50th Anniversary Black Tie Gala Dinner I hope to see you at the District Court 50th Anniversary Black Tie Gala Dinner, hosted by the District Court of WA and the Society at Crown Towers on Saturday, 4 April from 6.30pm.

With over 300 attendees registered already, this historic occasion will bring together guests and friends of the District Court to celebrate, reflect and look to the future. Tables of ten, groups and individual tickets are available. A special accommodation rate at Crown is also available for guests. Please visit https://bit.ly/393xc1E to register.

1970 – 2020

Western Australia's law firms and courts will be represented alongside eminent members of the profession at this historic occasion, hosted by the Law Society and the District Court.

This elegant and joyous black tie event will commence at 6.30pm in the Ballroom of Crown Towers with the legal profession gathering in style to celebrate as one, reflect and look to the future together.

Guests will experience great food, fine wine, music and dancing at this special event for the legal community.

All are welcome to enjoy one of the biggest nights on the calendar for 2020!

Firm tables, small group and individual tickets are available.

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

Platinum Sponsor

Supported by

03

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

2020 promis­­es to be an exciting one for the profession, the Law Society, and Brief itself. This first edition for 2020 is hopefully a harbinger for what the year holds and for what Brief strives for: a variety of current and topical, but also some nostalgic and entertaining, items diverse enough to pique the interest of the whole profession and which encourage readers’ feedback.

The disappointment was understandable, given what might have been included from 1969 (many hoped for moon landing memorabilia) and with so much more on offer, such as burnt draft cards, Nixon/Agnew campaign buttons, or Ted Kennedy’s driver’s licence. Perhaps it was the Derry establishment’s ultimate (and foresightful) “OK Boomer” payback to obnoxious millennials.

The losses, in every sense, from the bushfires present a tragic start to 2020.

The real heroes in this catastrophe are largely not connected to the legal profession. And yet we can do what we can. The Society is, as Nicholas van Hattem details in his first President’s Report, heavily involved in initiatives to help those affected. As are, in the Australian spirit, the Courts and other legal bodies.

2020 has kicked off with the US presidential impeachment efforts, one aspect of which is of particular interest for local practitioners. Presiding SCOTUS Chief Justice Roberts admonished some advocates before the Senate for their incivility, noting that “In the 1905 Swain trial, a senator objected when one of the managers used the word ‘pettifogging’ and the presiding officer said the word ought not to have been used”, continuing “I don’t think we need to aspire to that high of a standard, but I do think those addressing the Senate should remember where they are”, before “the world’s greatest deliberative body”.3

Brief appreciates the feature interview with the Attorney General the Hon John Quigley MLA, particularly as it contains many observations on the agenda ahead.

2020 promises to be a big year for timecapsule openings, a great tradition many readers would have participated in.1 For many, 2020 time capsule openings will be not only be emotionally nostalgic, but also provide closure upon mysteries such as where the VCR remote, Datsun 180Y car keys, and the cassette tape of Boney M’s greatest hits went.

It could also cause a boom in injunction applications, given many time capsules involved young students depositing notes to their “future selves” about what sort of people they would be in 2020.

Let’s hope most 2020 time capsule openings go better than that of Derry, New Hampshire’s 50-year old time capsule opened late last year: which, when opened, contained nothing.2 "We were a little horrified to find there was nothing in it," said the town’s official.

Though, coming from a town named ‘Derry’ in New England, there were of course potentially more horrific outcomes, such as finding several red balloons and a demonic clown devouring a child in a yellow raincoat.

04 | BRIEF FEBRUARY 2020

For one glorious moment, “#pettifogging” out-trended “#coronabeervirus” on Twitter. West Australian practitioners would be relatively unfazed, as ‘pettifogging’ had entered their lexicon some time ago.4 The spectacularly unsuccessful impeachment of Charles Swayne (U.S. District Court Judge, Northern District of Florida, 1890 to 1907) has quirky aspects. The impeachment was instigated by Swayne’s personal and political enemies, the main protagonist, Mr W. O’Neal, having been committed for contempt by Swain (the basis for one article of impeachment) and who, as a colleague attested, had “spent a whole lot of money” and “$US$200 to $300 for champagne”, apparently with a lawyer, to get the impeachment up and running.

So this was later described later as “champagne inspired impeachment.”5 There were several articles of impeachment, including the “high misdemeanour” of Swayne failing to reside in his district. This is remarkable, as his political opponents had the year before legislated to move the electoral

boundaries a few miles, resulting in Swayne’s ancestral and traditional family residence being outside the district.6 Article 10 is “missing from the public record” which might be a cautionary tale about running “champagne inspired” proceedings.

This edition has the Sir Francis Burt Oration by The Hon Robert French AC upon the prescient topic of The Law in a Climate of Change, introduced by the recently retired pre-eminent barrister and leading figure in the WA legal profession, Christopher Zelestis QC. We also have Chief Justice Peter Quinlan’s Robert French AC Oration on the Common Law, Contemporary Values and Sophocles' Antigone. And, we have Greg McIntyre SC and Justice Mazza on Justice Reinvestment, Clare Thompson’s Taxing Matters item and Bertus de Villiers on Aboriginal Self-Government and CoGovernment.

We also have, and are grateful for, ongoing contributions such as the judgment notes from Andrew Yuile, Dan Star QC and Robert Glade-Wright, John McKechnie QC’s Quirky Cases, and Dean Alston’s and Gino Dal Pont’s regular contributions, as well as a host of other items of interest.

NOTES: 1.

Which was, from memory, also a way for primary school teachers with repeated and chronic hangovers to get students to do something that required almost no supervision.

2.

See ‘A New Hampshire town opened a 50-year-old time capsule to reveal absolutely nothing’, S Andrew, CNN. com, 21/8/19. At least when TV super-journalist Geraldo Rivera famously opened Al Capone’s vault after weeks of a build-up, there were a few empty gin bottles and some newspapers in there – and it was regarded as one of Rivera’s more substantive and thought out reports.

3.

The Editor had been led to believe that the world’s greatest deliberative body was last year’s MasterChef Australia judges, or alternatively the Academy Award judges that gave Marisa Tomei the best supporting actress Oscar for My Cousin Vinny.

4.

See Barclay Mowlem Construction Ltd v Dampier Part Authority [2006] WASC 281 at [4].

5.

See the Boston publication ‘The Green Bag’, Vol XVIII, April 1905.

6.

Talk about figuratively and literally moving the goalposts.

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

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Interview with the Hon John Quigley MLA, Attorney General of Western Australia

The new year provided the perfect opportunity for Brief to catch up with the Attorney General. In this interview, the Hon John Quigley MLA reviews the McGowan Government’s law reform achievements and outlines his legislative priorities in the lead-up to the next election.

It is more than halfway through your term. You appear to have been busy in law reform. How would you rate your achievements in this regard so far?

I am very pleased with the high number of significant legislative reforms the McGowan Labor Government has been able to introduce and steer through State Parliament and onto the statute books since the March 2017 election.

Not to mention the many that have been announced but are not yet through the Parliament.

In December 2018, I took on the Commerce portfolio as part of Premier Mark McGowan’s Cabinet reshuffle. For the purposes of this overview, I will focus on Attorney General portfolio reforms.

The Parliamentary Counsel’s Office is working tirelessly through the McGowan Government’s comprehensive law reform 06 | BRIEF FEBRUARY 2020

agenda. As Attorney General, I have delivered a significant number of election commitments and other law reforms that have been long overdue. I have introduced 34 Bills into the Parliament, 21 of which have passed and a further 13 are still under consideration in either chamber.

The passage of legislation to provide the Corruption and Crime Commission with important powers in the fight against corruption and organised crime in WA, strengthening of dangerous sexual offender laws, establishing a scheme for the expungement of historical homosexual convictions for consensual conduct that would not be illegal today, removing limitation periods for all child sexual abuse actions, introducing important “no body, no parole” laws, and changes to laws dealing with parole for mass murderers and serial killers are amongst the reforms that I have overseen.

Those still before the Parliament include amendments to the Criminal Appeals Act 2004 to allow for a person to make a second or subsequent appeal against a conviction on indictment in circumstances in which “fresh and compelling” or “new and compelling” evidence has come to light, a comprehensive reform package transforming WA’s fines enforcement regime, the introduction of a legislative class actions scheme, new laws enabling the courts to make post sentence supervision and detention in relation to WA’s most violent criminals, and a wide-ranging family violence law reform package, which I introduced with the Hon. Simone McGurk, WA’s first Minister for the Prevention of Family and Domestic Violence.

Notably, in June 2018 WA signed up to the National Redress Scheme, having worked very hard and negotiating successfully with the Commonwealth to make sure the scheme’s policies are fairer and more equitable for WA survivors of child sexual abuse.

We also introduced the life-saving Custody Notification Service in WA, which we are funding together with

The Attorney General with the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill 2017

the Commonwealth Government.

The establishment of an independent notification service was a key recommendation from the inquest into the tragic, preventable death of the late Ms Dhu at South Hedland Police Station in 2014.

More recently, the Commonwealth Government introduced legislation into the Federal Parliament to enable de facto couples separating in WA to be able to achieve a fairer split of their superannuation assets. Successive Commonwealth Governments have not utilised the 2006 WA referral to remedy the injustice confronting WA de facto couples in relation to superannuation splitting. I am pleased that the Commonwealth Government has finally acted to remedy this injustice as a result of my approaches to the Federal Attorney General.

It has certainly been a tremendously busy three years and there is still more work to do to further enhance and strengthen our justice system.

Is there any law reform about which you are particularly proud?

I have worked hard to ensure every piece of legislation I introduce is sound law reform and in line with community expectations. I remain committed to ensuring that the quality and content of the statute book remains at the highest standard and I believe that I have been able to achieve this with every piece of legislation I have introduced to date.

There are a number of reforms which I believe will have, or have already had and will continue to have, a positive impact on our justice system.

I introduced the Fines, Penalties and Infringement Notices Enforcement Amendment Bill 2019 into State Parliament in the second half of last year.

Keeping fine defaulters in custody to ‘cut out’ their unpaid fines is not the most effective way to enforce fines payments.

It is both an unjust and economically unsound policy. After years of neglect by the previous Liberal-National Government, this is something the McGowan Government was committed to addressing. This is why we’ve developed a comprehensive reform package, the effect of which will be to ensure imprisonment for fine default is truly a last resort and only possible if

ordered by a court. These reforms are designed to ensure that people who can afford to pay their fines do, and those that cannot have opportunities to pay them off over time or work them off in other ways.

One of the first Bills I introduced into State Parliament was the Corruption, Crime and Misconduct and Criminal Property Confiscation Amendment Bill 2017. Unexplained wealth powers under the Criminal Property Confiscation Act 2000 had become all but dormant in WA because of resource intensive operational requirements on the WA Police Force and the Office of the Director of Public Prosecutions. The new laws, which are now in force, provide the Corruption and Crime Commission with important powers in the fight against corruption and organised crime in WA. They allow the Commission to seek orders from the court freezing assets where there is evidence of unexplained wealth.

A Bill to end limitation periods for civil action by victims of child sexual abuse was also introduced into State Parliament in the McGowan Government’s first year in office. The 07

Royal Commission into Institutional Responses to Child Sexual Abuse found that the average time for a victim to disclose child sexual abuse was 22 years. Under previous limitation periods, most victims were unable to sue for damages when they finally disclosed their abuse. I am firm in my belief that just because such crimes may have happened many years ago, this should not be a barrier to being able to seek justice and compensation in our civil courts. Hence I proceeded with this important reform.

A Bill to enact a legislative class actions scheme in WA was introduced into State Parliament in June last year and is still awaiting passage. Class actions serve an important role in providing access to justice by allowing people who have suffered damage due to a mass civil wrong to seek compensation. In the absence of such a scheme, individuals who cannot afford to seek redress could be uncompensated. While a mechanism for bringing class actions in the Supreme Court exists, it has little application and was found by the Law Reform Commission of WA to be outdated, inherently uncertain and silent on many procedural aspects of representative proceedings. This regime will not only enhance access to justice by reducing the cost of court proceedings to the individual and improve the individual’s ability to access legal remedies, it will also enable court resources to be used more efficiently. This is yet another example of an important law reform initiative which the former Liberal-National Government failed to implement, despite the Law Reform Commission’s recommendation back in 2015.

The Criminal Appeals Amendment Bill 2019 amends the Criminal Appeals Act 2004, introducing a new statutory right for a person to make a second or subsequent appeal against a conviction on indictment, where “fresh and compelling” or “new and compelling” evidence has come to light. As it stands, a convicted person who has exhausted all of their appeals has no further right to appeal without a referral from the Attorney General, even if fresh or new evidence later emerges that has the potential to exonerate them. It is this circumstance that necessitates the statutory enactment to allow for that fresh or new evidence to be heard and assessed, addressing and rectifying any substantial miscarriage of justice. As you know, as in the case of the late Andrew Mallard, I have a strong personal interest in righting injustice. This amendment is one way in which this can be progressed.

08 | BRIEF FEBRUARY 2020

I am very proud of the Family Violence Legislation Reform Bill introduced into State Parliament as part of the 16 Days of Action against family violence. The Bill amends nine pieces of legislation across six Ministerial portfolios and demonstrates a cross-government commitment to tackling family and domestic violence. The reform package includes: two new offences under the Criminal Code, namely suffocation and strangulation and persistent family violence; new aggravated penalties for offences which commonly occur in circumstances of family violence; the introduction of serial family violence offender declarations; and provisions to facilitate evidence of family and domestic violence in criminal trials. This comprehensive Bill will ensure WA is at the forefront of the fight against family violence in Australia. You may be aware that after consideration by Cabinet, the Government recommended the Governor in Executive Council exercise the royal prerogative of mercy to remit the sentence of Jody Gore, a domestic violence victim and convicted murderer, without pardoning her. Ms Gore served more than four years in prison and in September 2019, the Government decided it was time for mercy. Ms Gore’s case is a prime example of why the laws in WA must change to reflect the complexities of family and domestic violence.

What can be done to address the over-representation of Aboriginal and Torres Strait Islander peoples in the criminal justice system?

The overrepresentation of Aboriginal people in the justice system is well recognised by the McGowan Government. We acknowledge the historical and current disadvantage of Aboriginal Australians in nearly all socio-economic measures, including disproportionately high rates of imprisonment and over-representation in all parts of the criminal justice system. The causes of Aboriginal peoples’ over-representation in the criminal justice system are many and varied and represent two centuries of disempowerment, disenfranchisement and disadvantage.

I expect the reforms to the way we deal with unpaid fines, as mentioned earlier, will go some way to reducing the rate of imprisonment of Aboriginal people in WA. The Custody Notification Service has been in force since October 2, 2019.

Run by experienced staff from the

Aboriginal Legal Service of WA, the Custody Notification Service provides fundamental legal advice and a welfare check to all Aboriginal people taken into police custody. It is a tragedy that it has taken so long for this life saving measure to be implemented in WA, but I am immensely proud that the McGowan Government has acted, when the former Liberal-National Government would not.

The McGowan Government will also undertake a review into the Sentencing Act 1995 together with the Sentencing Administration Act 2003. The review will consider, amongst other things, how the Sentencing Act applies and impacts on Aboriginal and Torres Strait Islander People in particular, but also people with disabilities, and other vulnerable or marginalised groups.

Further, the McGowan Government has allocated $6.6million in the recent State Budget to be spent over 201920 to 2022-23 to assist individuals in meeting their bail conditions through the introduction of a bail support program in the metropolitan area. This will assist people in meeting their bail conditions and support the Government’s target to reduce the overrepresentation of Aboriginal people in custody.

As the Attorney General, I have a responsibility to protect property devoted to charitable interests, and to look after the interests of the public in relation to charitable trusts. I have been concerned for some time that some of the communities which these charitable trusts were designed to assist are still disadvantaged. In some cases, it is difficult to see how the funds are being used to improve outcomes for our indigenous communities. In 2017, I appointed Deputy State Counsel, Alan Sefton, to inquire into the Njamal People’s Trust. Mr Sefton’s report was tabled in State Parliament in December 2018, recommending a raft of reforms to the current legislation governing charitable trusts. As a result of this Inquiry, amendments to the Charitable Trusts Act 1962 are under active consideration.

What will be your law reform priorities for the balance of the term?

First and foremost, I look forward to introducing reforms to the Criminal Law (Mentally Impaired Accused) Act 1996.

This is essential to protecting the human rights of mentally impaired accused, ensuring procedural fairness and bringing WA into line with best practice in other States. Over the years, there

have been a number of high profile cases which have brought into sharp focus the deficiencies in the law which deals with mentally impaired accused people. The cases of Marlon Noble and more recently Gene Gibson are examples that highlight the need for change. This remains a top priority for the McGowan Government.

A new Bill to repeal and replace the existing framework is in the final drafting stages and will be introduced into State Parliament this year.

I will introduce legislation to apply the Legal Profession Uniform Law in Western Australia into Parliament early this year. There has been ongoing consultation with the legal profession regarding WA’s participation in the Legal Profession Uniform Law scheme and I am pleased that we are so very close to seeing this become a reality.

In 2018 WA signed an agreement with New South Wales and Victoria to join the scheme. A consultation draft of the Legal Profession Uniform Law Application Bill was released in November 2019 and feedback was received from key stakeholders.

There continues to be a growing concern in WA about the operation of organised

crime and criminal gangs, including bikie gangs, which remain the most high profile manifestations of organised crime in Australia. The former LiberalNational Government failed dismally in its efforts to stem the problem. The Criminal Organisations Control Act 2012 has never been used by WA Police as the procedures are too cumbersome and ineffectual. The McGowan Government is serious about stopping the expansion of serious organised crime and criminal groups in WA once and for all. Effective anti-consorting laws will make it harder for criminal gangs to engage in planned criminal activity. I have considered the most effective legislative elements from other Australian jurisdictions to ensure we came up with the best approach to tackling the problem in WA while including meaningful safeguards to ensure that the powers in this legislation are not misused. I will be introducing our legislation very soon.

In September 2018, I announced a review of the Criminal Property Confiscation Act 2000 and appointed former Chief Justice, the Hon Wayne Martin AC QC, to undertake this review.

The Act, which came into effect in 2001, enables the State to, amongst other

PLT graduates receive College of Law Awards

• Civil Litigation Award Laura Jackson • Property Practice Award Rachel Eaton

I intend to introduce stringent antitrespass laws for those who trespass upon farmland to interfere with food production into State Parliament this year. This will be balanced with enhanced rights of entry for inspectors to abattoirs, knackeries and intensive farming.

Rachel Eaton and His Honour Judge Christopher Kendall, Federal Circuit Court

Nine students have been recognised for their outstanding achievement in the 2019 Practical Legal Training program.

• Ethics and Professional Responsibility Award Tabitha Raphael

things, seize and confiscate property or assets acquired as a result of criminal activity, or used for criminal activity, including drug trafficking. Since that time, there have been a number of reviews and recommendations from several parties, including the Law Society of WA and the Office of the Director of Public Prosecutions, to amend the Act. The review has now been completed and I thank the Hon Wayne Martin AC QC for his very detailed consideration of this legislation. The McGowan Government is now considering the recommendations and potential resourcing implications for the legal system.

Announcing our winners of the Equality in Focus Competition.

• Property Practice Award Hannah Scallan

• 1st prize: Equality: a Piece of Cake by Sophia Nugawela

• Commercial and Corporate Practice Award Louise Crogan

• 2nd prize: Refugees Welcome, not Forgotten by Jhanae Morell Paule • 3rd prize: Footprints by Jayde Jarvis

• Professional Excellence Award Priyanka Philip, Joshua Kain, Alice Coakley and Ebonny Bell

• People’s Choice: Saturday Morning by Taylor Watson

Learn more at collaw.edu.au/PLT or call 08 9214 0200

09

A Fresh Approach to Aboriginal SelfGovernment and Co-Government – Grassroots Empowerment

By Prof Bertus de Villiers Adjunct Professor, Curtin Law School

Introduction The proposal to create a Voice for Aboriginal people appears to be struggling to find traction at a grassroots level. It seems to be a debate that attracts principally intellectual support but is starved of people-excitement.

Popular support from within Aboriginal communities for a Voice has been muted in a process that has been mainly driven from the top. This may be due to various reasons, such as scepticism arising from the failure of previous advisory bodies for Aboriginal people, a lack of clarifying or marketing of the objectives of the Voice, inadequate consultation about what communities at a grassroots level want of a Voice, or because a Voice in Canberra is too far removed from real local issues affecting the lives of Aboriginal communities in the towns, cities, villages and communities where they live. It appears as if a gap has developed between the day to day needs of Aboriginal communities and the remedy in the form of the Voice that is now being proposed.

10 | BRIEF FEBRUARY 2020

A reasonable question is why the Voice would succeed if previous experiences with advisory bodies for Aboriginal people since the 1970s have been so disappointing.1 The idea of one nationally elected voice speaking for all Aboriginal people in a top-down manner is not necessarily reflective of Aboriginal societal organisation, community laws and customs, or decision-making processes. The national debate in regard to the Voice, meritorious as it may be, is dominated by national role-players, national think tanks, universities and lobby groups, and national interests. In this process the interests and aspirations of local Aboriginal communities, traditional owners and native title holders may have fallen by the wayside.2 The pre-occupation with a nationally elected Voice gives rise to the question: If ATSIC with its substantial powers, functions and budget could at best attract a relatively low 30% voter turnout, how would a purely advisory body with no regional offices, no service-delivering capacity, no administrative function,

and no independent budget be able to garner substantial support from within Aboriginal communities?

It may be time to think afresh about Aboriginal co-governance and selfgovernance.

Should a model be developed in a topdown, or in a bottom-up fashion?

It is the proposition of this article that an organic bottom-up process would offer greater flexibility, more community buy-in, increased experimenting, and potentially greater practical benefits to communities.

Importance of grass-roots involvement Grassroots Aboriginal communities need to be given an opportunity to become involved in decisions that affect their lives. The essence of self-determination is not an ideological concept. It is a practical effect of taking responsibility.

Comparative experiences show that the heartbeat of any democratic society starts at local level, particularly so in

indigenous communities. It is when local communities take responsibility for their own governance, that real empowerment takes place. Local communities understand their own needs better than a few selected leaders at a national level. Local partnerships, alliances and relationships are generally more effective, meaningful and transformative than the temporary and often volatile nature of relationships at a national level.

It is not surprising that the United Nations and the World Bank in their many international democratisation initiatives, have been focusing on empowerment of local communities to become involved in policy formulation and delivery of services. Top-down schemes affecting indigenous communities, notably also in Australia, have a poor record. The decisions that change lives at a practical level are rarely taken at a federal level. The practical decisions that affect communities at a local level are those that relate to health, education, employment housing, infrastructure, environment, land management and planning. Those functions in Australia belong to local and state governments. These are the levels where Aboriginal involvement should receive greater attention.

In practical terms – a voice for Aboriginal communities in the city council of Kalgoorlie or the shire of East Pilbara (Newman) may be far more practical, lasting, meaningful and influential that a voice in the corridors of Canberra.

If Aboriginal co-governance and selfgovernment are serious goals, and in the opinion of this author they should be,3 this article proposes that co-governance and self-determination must begin at a local level and may in time expand to state and federal levels.

This article aims to promote the concept of Aboriginal co-government and selfdetermination by way of empowering local Aboriginal communities to become many voices for their interests at local governments. The local voices may in time become a crescendo for a national voice.

The article draws on recent experiences in Hungary (of all places!) where cultural communities have in recent times been given special rights of representation, consultation and self-government at a local level in a manner that is unique in international contemporary democratic theory and practice. Whereas Hungary is for obvious reasons not an ideal role model for Aboriginal empowerment, the institutional arrangements in that country and the democratisation efforts in the

post-Communist set-up highlight how creativity and ingenuity in institutional design can contribute to fresh thinking outside the existing box of constitutional and legal dogma.

The opportunity presents itself to Australians to develop an approach to Aboriginal co-governance and selfdetermination that is truly new, fresh and creative. Australia may, rather than being criticised for its lack of Aboriginal engagement, become a beacon of Aboriginal co-governance and consultation. One such example is the recently concluded Noongar settlement in the south west of Western Australia.4 Many more of these localised agreements are required to ensure Aboriginal people have many voices.

The spark that is seemingly missing in the national debate on the Voice may be energised if many voices are given to local Aboriginal communities at a local level. Local voices would create a basis for real community engagement, for experimenting, and for consultative processes that suit and reflect the needs of specific communities.

Progress with the Voice A group of Aboriginal leaders issued the Uluru Statement from the Heart (Uluru Statement) in 2017 after a process of public consultation. The Uluru Statement foreshadowed a constitutional amendment to establish an advisory body to represent the views of Aboriginal people to the Federal Parliament and Federal Government. Essential elements proposed for the Voice are that it is to be created or authorised by the Constitution, its members are to be popularly elected by Aboriginal people, and its powers are to be advisory in nature. The Voice is not intended to be a third chamber of the federal parliament, it is not to have a veto over legislation, or to otherwise restrict the sovereignty of parliament.5 The Federal (Liberal) Government initially rejected the concept of a Voice, but the Uluru Statement was nevertheless referred to a select committee of parliament for public consultation. A joint select committee of the federal parliament was formed in March 2018 to invite and consider public submissions regarding the Voice. The committee’s November 2018 report, unfortunately but perhaps not unexpectedly, raised more questions than it answered. Whereas there seemed to be wide public support for a consultative body, the mechanics, powers and functions remain clouded in mystery and disagreement. The select

committee recommended, in essence, further consultations with Aboriginal people, the general public, government and parliament. The committee was criticised for kicking the preverbal can down the road for others to deal with the real issues, but the report also highlighted the deep disagreements about the specifics to establish a Voice.

The newly appointed Minister for Indigenous Affairs, Ken Wyatt, announced on July 10, 2019 that a referendum will be held by not later than 2021 to amend the federal constitution to provide for a ‘First Nations Voice’.6 This announcement had special gravitas since Minister Wyatt is the first Aboriginal minister of the federal Indigenous affairs portfolio and his legacy may depend on his ability to legislate and operationalise the Voice into action.

By committing to an estimated date for a referendum during the term of the current Parliament, Mr Wyatt may have put the cart before the horse, or he may have set a deadline to focus the minds onto the real issues. Retired Chief Justice Robert French has observed, in expressing his support for the Voice, that “there is much to be done. No doubt the devil will be in the detail”.7 Indeed.

The missing link: local community involvement It is axiomatic that whereas the terms ‘Aboriginal people’, ‘Indigenous people’ and ‘First Nations’ are often used interchangeably to describe the collective body of traditional owners of Australia, in reality there is no singular or uniform set of rules for Aboriginal identity, language, law or culture.

There is a rich tapestry of distinct languages, customs, laws, belief systems and interests that share certain communalities but are also diverse and unique to specific communities.

The proposal for a Voice so far begs the question: how would the proposed Voice and those who are elected ascertain the views of local Aboriginal communities in general, and native title and traditional owners in particular, on particular policy issues, and ensure local community views are accurately reflected in the national debate?

There is a not unsubstantial risk that the deliberations within the Voice may become majority dominated and in doing so alienate itself from particularly rural Aboriginal communities.

If elections for the Voice are primarily ward-based, it is not clear how the interests of different Aboriginal 11

communities within the ward would be reflected in a first-past-the-post, winner-take-all system. If, on the other hand, elections are based on a form of proportional representation, it is also not apparent how the opinion of local Aboriginal communities would be canvassed on a policy matter potentially impacting their lands, rights and interests. Furthermore, a ward- or proportional-based electoral system may bring about a majority-take-all approach within the Voice; this may be inconsistent with protecting the interests of local Aboriginal communities. Therefore, the proposition that a singular elected body would be authorised by legislation to speak on behalf of all Aboriginal communities in Australia on major policies and legislation is fraught with ambiguity and potential inter- and intracommunity conflict.

It is therefore not surprising that the parliamentary select committee foreshadowed the possibility of local or regional consultative mechanisms – many voices rather than one.8 The missing link (so far) in the design of the Voice has been how the rights and interests of local Aboriginal communities would be accounted for in the Voice.

Policies pursued at a national level in areas such an mining, environment, agriculture, education, native title, resource use, land managements, welfare, and health need to be informed by the needs and aspirations of local communities, otherwise the perception of local Aboriginal communities being disempowered will be repeated within the Voice.

Insights from Hungary The potential insights Hungary offers to the current debate in Australia are manyfold, for example: •

Cultural communities are granted rights to co-government and selfgovernment alongside existing local governmental structures;

•

The objectives of co-government and self-government range from cultural and linguistic to socioeconomic empowerment;

•

The administrations for cultural communities are recognised in pubic law, which means they are “governments” rather than clubs or associations;

•

The administrations receive grants from government to administer policies and deliver services as agents of government;

12 | BRIEF FEBRUARY 2020

•

The administrations are popularly elected, accountable to their communities, and represent the interests of their communities principally at local level; and

•

Hundreds (in excess of 2,000) community administrations have been established by different communities at local level in the past two decades.9

Brief background of communities in Hungary Hungary is historically a multicultural state, albeit that the overwhelming majority of its people regard themselves as Hungarian. Of a population of around 10 million, 4% self-declare as belonging to a minority nationality and only around 1.3% speak a home language other than Hungarian. The smallest community is the Armenians with around 3,300 members, whereas the largest community is the Roma with around 308,000 members.10 This is not dissimilar to Aboriginal communities that are scattered across Australia in relatively small numbers yet with unique identities and peculiar rights and interest in their land.

Whereas internationally in multilingual states the preservation of language is often a key mobilising element for minority communities, in the case of Hungary there is practically only one national language, namely Hungarian.

Nevertheless, some communities view their culture and traditions as distinct from the main society albeit that they speak the language of the dominant community. This is not dissimilar to Aboriginal people who overwhelmingly speak English but yet regard themselves as having unique cultural rights and customary interests that require special recognition.

The respective communities live scattered across Hungary and even where they live in concentrations, they are generally outnumbered by Hungarians. This is not dissimilar to Aboriginal communities who rarely constitute a majority at local levels. Special arrangements were therefore pursued in Hungary as part of its democratisation process postCommunism, to ensure that the special interests of the minority nationalities are accommodated in co-government and self-government arrangements.11 The 13 communities do not necessarily have the same objectives and even within communities there may be different priorities at local levels. This highlights the benefits of a local-based process of

self-determination since it allows for and encourages experimentation. This is not dissimilar to Aboriginal communities who collectively may share certain interest, but who at the local level often have particular interests that are unique to the specific community.

Relevance of Hungary Comparative constitutional law is always limited by context, history, circumstances and every imaginable qualification that renders each country unique. And yet, it is from comparative law that we gain ideas, insight and lessons when designing new institutions.

See for example how South Africa when it drafted its constitution benefitted from a smorgasbord of constitutional experiences in areas such as fundamental rights, minority protection, rights of traditional leaders, federalism, and constitutionalism.

The experiences of cultural communities in Hungary are perhaps at first glance as far removed from practical reality as one could imagine for Aboriginal communities. However, it is the design of institutions in Hungary that is the subject of this article, not necessarily the manner in which the communities organise their affairs on a day to day basis.

The relevance of Hungarian minorities to the Australian debate about Aboriginal co-governance and self-governance is simple, namely that communities with unique laws, customs and culture who do not live concentrated in adequate numbers to form their own local government, can be made part of local government decision-making and policy formulation by ways of consultation, cogovernance and a culture of caring and listening. In doing so, local communities are allowed to experiment, to pursue arrangements that reflect their needs and to exchange lessons with each other.

The community government arrangement in Hungary has two key objectives at its core; firstly to enable communities to promote and protect their unique culture and traditions, and secondly (particularly in regard to the Roma) to improve the socio-economic circumstances of its members.

The experiences of institutional design in Hungary makes for interesting reading to Australia where institutions for cogovernment and self-government are sought to be designed for Aboriginal people.

Hungarian make-up of minority communities

There are 13 cultural communities recognised by the constitution of Hungary.12 Many of the members of the respective communities live intermingled with the rest of the Hungarian population. This means that the minority communities cannot govern themselves by way of territorial arrangements.13 The population size of the respective communities are small, which means they are unlikely to have a substantial impact on policies without some special form of institutional arrangements.

This is not dissimilar to Aboriginal communities to whom majoritarian politics simply means being in a constant political minority for perpetuity.

Aboriginal people, similar to the minority communities in Hungary, are locked into a numerical minority status in a game where only the voice of the majority counts.

The respective communities in Hungary are not united in their objectives.

Whereas some communities are principally interested in the selfmanagement of their cultural and customary affairs by way of education, media and cultural programmes, other communities are interested in ways to improve their influence over general

policies and ways to promote their socioeconomic interests.

Hungarian institutional arrangements Legislation in Hungary provides that each of the 13 communities is entitled to establish governing structures at local, regional and national levels to look after their language, traditions, and culture. The local entities may also make recommendations and policy inputs – à la a type of voice – to the respective levels of government.14 Each community therefore in effect has several voices that communicate their interests at various levels. In this manner there may be within the same community different emphasis depending on particular local needs.

A unique balance of self-government and co-government is sought to be achieved though the dual functions of the institutions.

The legal entities for the communities are called “self-governments”, albeit that their functions are primarily of a policy, advisory and administrative nature.15 They do however make by-laws about the practical matters within their

jurisdiction, but general standards of performance and service delivery are set by national legislation and policies. The entities therefore operate in the public sphere, whereas Aboriginal corporations in the private sphere.16 The size of the respective self-governing councils is prescribed by law. The members of the councils are elected by all those persons whose names appear on the national registry for the specific community.17 Elections take place on the same day as local government elections.

There is no obligation on a person to register on a list of a minority community, nor does registering prevent them from voting as part of the general population for local, regional or national elections.18 Since self-governing bodies may exist alongside local, regional or national governments, provision is also made for those bodies to cooperate with other levels of government on matters of mutual concern.19 The self-governing bodies are therefore part of the general system of intergovernmental relations wherein policies are initiated and coordinated.20

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relationships can be formed, and where Aboriginal communities would have a greater sense of empowerment and involvement in issues affecting their daily lives.

In this regard existing community organisations, native title claim groups, traditional owners, prescribed bodies corporate and Aboriginal corporations can be used as building blocks for holistic community engagement.

Hungarian functions of community self-governments The Act on the Rights of Nationalities in the preamble emphasises that the diversity of cultures in the country is “not a source of division but of enrichment” and therefore the importance of speaking in mother-tongue and education in mother-tongue together with cultural and traditional practices and values are encouraged and promoted. This is an important philosophical statement because it means that although the population, including minority communities, speak predominantly Hungarian, the status of the 4% minorities is recognised as an asset to the nation and funding is made available to protect and promote the minority cultures. Arising from this recognition is a commitment by government to fund self-government institutions and the co-government activities of the national minorities. This declaration in Hungary is not dissimilar to the constitutional recognition demanded by Aboriginal people for them to the recognised as the traditional owners of the land now called Australia.

The cultural associations for the respective communities are empowered to promote mother-tongue education at all levels, to promote the culture and cultural heritage of the communities, to establish museums and libraries that celebrate the culture and traditions of the respective communities, to establish and manage public media and broadcasting, to develop boarding facilities, and to provide cultural services to the members of the community.21 These community rights are supported by individual rights that guarantee the use of own language in public office, in official communications, and in courts, as well as public place names being in the local minority language.22 Around 100 practical functions 14 | BRIEF FEBRUARY 2020

and services of local and regional governments have already been taken over by local communities. These arrangements can best be described as agency arrangements whereby a community administration negotiates with a government department the terms and conditions, including funding, whereby a service would be delivered to a local minority community by their community government.

Hungarian functions of community co-governance The locally elected self-governments for the respective cultural minorities exist alongside the institutions of local government. The community local governments are legal entities under public law and are responsible for wide range of functions, for example: (a) to give advices to the local government about the interests of their community; (b) to approve certain policies that impact directly on the cultural community; (c) to maintain educational and other culturally relevant facilities with financial support from government; (d) to provide teaching, library, media and other services to their community; and (c) to cooperate with other levels of government about the interests of their community.23

Relevance to Aboriginal selfgovernance and co-governance The Hungarian experience in institutional design can contribute the following principles to the debate in Australia about potential Aboriginal selfgovernance and co-governance: (i) Self-governance and co-governance

by Aboriginal communities should start at the local level where attention could be given to the specific interest of respective communities, where strong

(ii) Two objectives should guide the design of localised Aboriginal involvement, namely selfgovernment and co-government.

Self-government should enable communities to take responsibility for the management of their own cultural, customary and social affairs as well as to become agents to administer policies on behalf of government departments (see the Noongar settlement).24 Co-government should enable communities to make inputs – à la the local voice – into policy and legislative issues that affect their lives. A localised approach would enable a plethora of voices speaking to the respective levels of government about issues that affect specific communities. (iii) The mechanism by which selfmanagement and co-management arrangements is given effect can vary, for example: it may be entirely informal, it may be via prescribed bodies corporate pursuant to native title outcomes, it may be contractual in nature between local governments and Aboriginal corporations, or it may be pursuant to state and/ or federal legislation. The suitable instrument should be chosen by local communities rather than being imposed as a one size fits all at the federal level. The Federal Government may, however, by way of funding arrangements encourage and reward local self-governing and co-governing arrangements. (iv) The institutional arrangements for each local community may vary depending on the needs of the community being serviced. Although an organic law as in the case of Hungary may be ideal for purposes of certainty and consistency, the diversity of community needs in Australia requires a more flexible approach that ranges for purely informal consultation to formalised agency and service delivery agreements.

(v) The typical functions that could form part of self-management are aspects of education, welfare, social services, environmental protection, housing, primary health care, infrastructural projects, place names and signage, heritage protection, cultural and recreational activities. (vi) The typical functions that could form part of co-management are consultation in regard to policies in areas that impact on the interest of the local Aboriginal community, for example socio-economic policies, health, education, environmental management, and conservation.

of interests at local level, the most appropriate approach is to encourage and allow local Aboriginal and nonAboriginal communities to engage in cooperation and in time to build on that cooperation until a truly representative national Voice can evolve.

Endnotes 1

2

3

Summary The discussions about the Voice have opened up the opportunity to give fresh consideration to the way in which the voices of Aboriginal people in Australia are catered for by formal government institutions. The track record of Australia with advisory bodies for Aboriginal people is not good. The Voice runs the risk of just becoming another advisory body, or, as I have cautioned in a previous article, a toy telephone.25 It is time to think fresh and out of the square about co-government and self-government for Aboriginal people. This article draws on the recent institutional developments in Hungary to accommodate minority communities at local levels. These developments show how a bottom-up approach would enable Aboriginal communities to become involved in local issues, to use mechanisms that suit their customs and traditions, and to adopt policies that are consistent with their needs. A centralised decision-making or consultation system for Aboriginal people is unlikely to succeed if implemented in a top-down manner. In response to the variety

4

5

6

7 8

9

10 11

See De Villiers “An ancient people struggling to find a modern voice – experiences of Australia’s indigenous people with advisory bodies” 26 International Journal on Minority and Group Rights (2019) 1-21 for an overview and analysis of advisory bodies and possible reasons for their failure.

This observation is substantiated when one reflects on the relative lack of number and scope of submissions that have been made by Aboriginal communities in Western Australia to debates about the Voice. There is little evidence of a grass roots swell of support of the concept in Western Australia.

The author has published several articles on options to expand self-determination for Aboriginal people. See for example: De Villiers “The protection of dispersed minorities: Options for Aboriginal People in Australia” 74 Heidelberg Journal of International Law (2014) 105-140; De Villiers “Self-determination for Aboriginal People – is the answer outside the territorial square?”

16 The University of Notre Dame Australia Law Review (2014) 74-106; and De Villiers “The Recognition Conundrum – is an advisory body for Aboriginal People progress to rectify past injustices or just another ‘toy telephone’” 17 Journal on Ethnopolitics and Minority Issues in Europe (2018) 24-28.

De Villiers “Chasing the dream – self-determination on a non-territorial basis for the Noongar traditional owners in the South West of Australia” 27 International Journal on Minority and Group Rights (2019) 1-23.

Senior Aboriginal leader, Noel Pearson, said the following about the proposed powers of the Voice: ‘This is not a third chamber, nor reserved seats. The proposal is for an indigenous voice to parliament – an institution set up in legislation, constitutionally guaranteed a say in indigenous affairs.’ Pearson, “Memo Richo: Facts Count, not Lazy Fictions” The Australian August 8, 2017: 6.

Wyatt “Walking in Partnership to Effect Change”, media release by Minister Ken Wyatt on July 10, 2019 at https://www.kenwyatt.com.au/ministerial-newsindigenous-australians/‌2019/7/10/‌transcript-nationalpress-club-address-walking-in-partnership-to-effectchange.

French “Voice of reason not beyond us” The Australian.

July 31, 2919: 12.

The committee acknowledged that local and statebased consultation and advisory options ought to be put in place, but no specific recommendations were made. “Recommendation 2.302 Above all, the Committee’s consultations have highlighted a demand for local and regional voices, as well as for a national voice.” (2018) Dobos The minority self-governments in Hungary 2016: on-line compendium at http://www.world-autonomies. info/ntas/hun/Documents/Hungary__2016-01-15.pdf.

Census 2011.

Two principal considerations motivated the special arrangements. Firstly, a substantial number of Hungarians live in neighbouring countries to Hungary and the country wanted to set an example of how the Hungarian minorities in other countries ought to

12

13 14

15 16

17 18

19 20

21

22 23

24

25

be accommodated. Secondly, Hungary has a rich philosophical and practical history of respect for diversity of the respective communities.

Appendix 1 Act on the Rights of Nationalities of Hungary: Bulgarian, Greek, Croatian, Polish, German, Armenian, Roma, Romanian, Ruthenian, Serbian, Slovak, Slovene and Ukrainian. These communities have been associated with Hungary for longer than a century. a1(1) Act on the Rights of Nationalities of Hungary. Provision is also made for other communities who are not listed to request to be recognised a148(3).

Walsh Minority Self-Government in Hungary: Legislation and Practice (2000) 12. a76(1) Act on the Rights of Nationalities of Hungary. a2 Act on the Rights of Nationalities of Hungary defines an institution of national self-government as “an organisation established on the basis of this Act by way of democratic elections that operates as a legal entity, in the form of a body, fulfils nationality public service duties as defined by law and is established for the enforcement of the rights of nationality communities, the protection and representation of the interests of nationalities and the independent administration of the nationality public affairs falling into its scope of responsibilities and competence at a local, regional or national level”. a68(4) Constitution of Hungary.

Aboriginal persons may establish special corporations to promote their interests pursuant to the Corporations (Aboriginal and Torres Strait Islander) Act 2006. These corporations operate in the private sphere and are not “governments” in public law. aa50-52 Act on the Rights of Nationalities of Hungary.

Note the contrast between the Sami and the Maori in this regard: the Sami in Finland can register on both the national and community electoral lists; whereas the Maori in New Zealand must exercise a choice between the lists. The reason is found in the powers of the elected body. The Sami Parliament is principally an advisory and administrative body; whereas the Maori representatives are elected to the national parliament. ATSIC was similar to the Sami registration whereby a person could vote for ATSIC and local, state and federal elections. See De Villiers “Electing an Aboriginal Voice in Australia – who will get to vote in elections for the proposed advisory body?” 18 Journal on Ethnopolitics and Minority Issues in Europe (2019) 19-41. a79 Act on the Rights of Nationalities of Hungary.

When compared to the proposals made for the Voice it is apparent that the community governments in Hungary are intended to be integrated with the general system of government, rather than being only advisory in nature. aa2 and 18 Act on the Rights of Nationalities of Hungary. The state is obligated to financially assist with public education in minority languages (a22 Act on the Rights of Nationalities of Hungary).

Chapter 2, Act on the Rights of Nationalities of Hungary.

Vizi “Minority self-governments in Hungary – a special model of non-territorial autonomy?” in Malloy et al (eds) Managing diversity through non-territorial autonomy: assessing advantages, deficiencies and risks Oxford UP, 2015.

De Villiers “Chasing the dream – self-determination on a non-territorial basis for the Noongar traditional owners in the South West of Australia” 27 International Journal on Minority and Group Rights (2019) 1-23.

De Villiers “The Recognition Conundrum – is an advisory body for Aboriginal People progress to rectify past injustices or just another ‘toy telephone’ 17(1) Journal on Ethnopolitics and Minority Issues in Europe (2018) 24-28.

15

Introduction to the Inaugural Sir Francis Burt Oration

By Christopher Zelestis QC

Editor's Note: Christopher Zelestis QC, who of course will be well known to most readers, retired from practice at Francis Burt Chambers late last year, leaving an outstanding legacy as a pre-eminent and greatly respected leader of the commercial bar, and of the profession and its standards and best qualities generally.

While Mr Zelestis' usual involvement in the law will be missed, happily he will have continuing involvement in training at Francis Burt Chambers.

Mr Zelestis joined the independent Bar in 1974, was appointed Queen’s Counsel in 1987, served as President of the WA Bar Association in 1993-94, was Chair of the Legal Profession Complaints Committee from 2004 to 2015 and was acting Parliamentary Inspector of the Corruption and Crime Commission from 2009 to 2011.

Mr Zelestis is a Life Member of the Law Society, and the Society congratulates him upon his retirement and wishes him all the best for the future.

Sir Francis Theodore Page (Red) Burt

In 1997, the set of barristers’ chambers then known as Bar Chambers, changed its name to Francis Burt Chambers, in honour of its founder, Sir Francis Burt, and in recognition of his unique contribution to the Bar and the legal system in Western Australia.

Sir Francis was a towering figure in the law in Western Australia. The clarity, accuracy and brevity of his analysis of legal problems, presented in the course of argument before him and in his judgments, had a profound influence upon the entire legal profession. No individual judge in Western Australia, in living memory, has had such an impact on professional standards.

In particular, his capacity to identify a weakness in a party’s argument, within two or three minutes of a case commencing, was both unique and universally feared. His technique was to condense the essence of an argument into a single short proposition and invite counsel to accept that it was an accurate statement of the case. A fatal flaw was then exposed, usually with the barest hint of a wry grin.

Sir Francis was admitted to practice in 1941 and was appointed Queen’s Counsel in 1959. He founded the Bar in Perth and the chambers which now carry his name in 1961.

He was appointed to the Supreme Court in 1969 and became Chief Justice in 1977, a position that he held until his retirement at the statutory age in 1988.

16 | BRIEF FEBRUARY 2020

Sir Francis was a humble, unpretentious man, who saw the practice of the law as a relatively simple matter. About two years before his retirement as Chief Justice, he was approached by some members of chambers (including our guest speaker) who were contemplating the establishment of a new set of chambers in modern premises and who were keen to hear his Honour’s views on the proposal. His Honour questioned the need for improved facilities, observing that all that one needed to practise the law was a kitchen table and what sat beneath one’s hat.

That occasion ended with Sir Francis sharing a beer with the group. It was a warm summer afternoon. Rather than ask the government for a favour in the form of a fridge, his Honour preferred to serve beer at room temperature.

Sir Francis’ lack of any sense of selfimportance was reflected in an exchange which occurred when his consent was sought to the use of his name as the name of chambers. A draft form of deed poll was prepared which included recitals describing aspects of his career. It was no fault of the draftsman (then a member of chambers, now a member of the Court of Appeal), who had expressed the recitals in

typically restrained terms, that Sir Francis responded that he could not possibly sign an instrument containing such recitals, because to do so would be to indulge in self-congratulation by deed poll.

In 1997, a cocktail party was held by chambers to mark the adoption of Sir Francis’ name. In the course of his address to that gathering (which included one retired and one sitting High Court judge), Sir Francis remarked that he had only recently ended his lifetime subscription to the Australian Law Journal Reports, because he could no longer understand the judgments of the High Court.

That was 11 years before the arrival on that court of our distinguished speaker this evening, the Honourable Robert French AC, formerly Chief Justice of Australia, whose judgments on that court, one can be sure, Sir Francis would have admired.

Robert French was a member of Francis Burt Chambers between 1983 and 1986, when he was appointed to the Federal Court of Australia. He was part of the generation of lawyers who benefited immeasurably from the experience of appearing before Sir Francis. We are honoured that he has agreed to deliver the inaugural Sir Francis Burt Oration.

The Law in a Climate of Change: Inaugural Sir Francis Burt Oration

By The Hon Robert French AC 6 November 2019, Perth

On 13 February 2013, the High Court of Australia heard an application to extend time to appeal from a decision of the Court of Criminal Appeal of the Supreme Court of Western Australia. The decision appealed against had been delivered on 29 July 1987.1 Sir Francis Burt had presided as Chief Justice with two other Justices.

A 25 year old man, intellectually disabled because of diffuse brain damage, had been convicted of two offences of aggravated sexual assault on a child.

He had been sentenced to seven years’ imprisonment. He was also ordered to be detained indefinitely at the Governor’s pleasure under s 662 of the Criminal Code (WA). The rationale of that order was not that he would pose a continuing danger to the community when released after serving his sentence. Rather, the sentencing judge reasoned that as an indefinite detainee he could be limited to a shorter but more achievable parole period than he would be allowed as a prisoner serving a finite term. The Court of Criminal Appeal by majority accepted the rationale of the indefinite detention order. Chief Justice Burt dissented. He said there was nothing in the appellant’s record of prior convictions which would justify making the order.

Twenty six years later the offender was still in prison under the indefinite

detention order. The High Court extended time, granted special leave to appeal and allowed the appeal against that order.2 Four of the Justices, in a judgment in which I joined, said ‘Burt CJ was plainly correct to conclude that the evidence did not support the making of the order.’3 Justice Gageler, who wrote a separate judgment, said of Chief Justice Burt’s dissenting judgment ‘[h]e adopted the correct test. He dissented. He was right.’4 It was a curious experience looking back at the appeal papers, at the print of old judgments in a font from the long gone technology of the electric typewriter. I had appeared before all of the Judges involved in the case. It was also a revisiting of old memories to read the succinct dissent of Sir Francis Burt reaching across the years.

Memories of his Honour as a Supreme Court Judge and as a Chief Justice tend to be vivid. To engage with him as counsel to Judge was challenging

and stimulating. His questions were penetrating, his observations pithy, his courtesy constant, although at times he could disconcert. His judgments were practical and principled and no longer than they had to be. They are still cited in intermediate courts across Australia and in the High Court. In a decision about cause and effect in criminal cases in 1991, Sir Anthony Mason said: I agree with the statement by Burt CJ in Campbell v The Queen,5 that it is ‘enough if juries [are] told that the question of cause for them to decide is not a philosophical or scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.6 The same passage was quoted in the joint judgment of Deane and Dawson JJ7 and in that of Toohey and Gaudron JJ8.

In Hawkins v The Queen9 the High Court in a unanimous decision on the question of criminal responsibility and insanity arising under the Criminal Code (Tas), referred to the judgment of Burt CJ in Schultz v The Queen.10 The Court noted that a different approach had been taken 17

Sir Francis Burt was Chief Justice of Western Australia from 1977 to 1988

by the Court of Appeal of New Zealand but said ‘[t]he view of Burt CJ accords with the law in this country.’11 His Honour’s reputation as a jurist was national. Tom Hughes QC, when he was Commonwealth Attorney-General between November 1969 and March 1971, sounded Sir Francis out about the possibility of him joining the High Court.

Sir Francis disclaimed any interest.

The only Justice who was appointed to the High Court during Hughes’ time as Attorney-General was Sir Harry Gibbs, who was the Senior Judge when Sir Garfield Barwick retired in 1981 and was appointed as Chief Justice of the High Court to succeed him. Had Sir Francis been appointed in 1970 in lieu of Sir Harry Gibbs the same fate might have befallen him. However, a sliding door had closed — so be it. Western Australia was the beneficiary of that closure. It retained one of the finest legal minds in the country as a Judge of its highest court from 1969 to 1977 and as Chief Justice of the State from 1977 to 1988.

When, in 1962, he established the Independent Bar, which celebrates his life with this lecture in his honour, Sir Francis showed a clear, practical understanding of the professional 18 | BRIEF FEBRUARY 2020

environment and culture in which it had to fit — a culture informed by the established traditions of the fused profession in Western Australia. The Bar was not going to affect superiority over solicitors. Barristers were not to have regard to rules about not going to a solicitor’s office to talk to them. As he said, in an interview in 1992: we never really observed those Bar rules … which have become ingrained in the Sydney practice of the Bar …We always tried to make it as easy as you could, and you had to. They were paying you and you had to do the work.12 He and his successors as leaders of the Bar in its formative years were not distracted by individual or institutional self-regard. They had no difficulty appearing with juniors from the amalgam who might also be acting as their instructing solicitors. For those who practiced as advocates in the amalgam and aspired eventually to go to the Bar, it gave them access to the best kind of guided experience in the work of advocacy.

Sir Francis was an institutional innovator but even his innovative instincts occasionally met their match. Launching

the Law Society’s website in 1998 he said: I am here this morning in response to your President’s kind invitation to attend the launch of The Law Society’s revised Web site. And as to that, I can only say that I have no idea what a Web site is, revised or otherwise.13 Despite his disclaimer of knowledge about the new world of the Internet, he had long enjoyed an expansive awareness of the effects of social change on our democracy and community concepts of law and justice. In a paper delivered in 1987 and published in the Australian Law Journal under the engaging title ‘The Moving Finger or the Irremovable Digit’14 he wrote of the impact of social change on the legal profession. The rise of the welfare state, increasing taxation and regulation generally diminished the role of the common law in the courts. The statute, he said, ‘has become King and for the man on the street and, particularly for the man in business, the law which affects him is now to be found in the statutes and in the mountains of regulation sustained by them.’15 The justice of society as perceived by the average

citizen, he observed, ‘lies outside the law as we [have] understood it and practised it.’16 Justice resided in how much tax had to be paid or what social benefits could be enjoyed, in things such as industrial awards, town planning schemes, housing, mortgages, and interest rates.

As I remarked earlier, Sir Francis could, at times, disconcert. In an appeal to the Court of Criminal Appeal I once referred to an unreported decision of that Court which seemed to support my argument.

Sir Francis did not tend to favour reference to unreported judgments and said ‘[w]ell if we said that, we were wrong.’ On another occasion, however, granting my client a costs certificate on the basis of a rather strained interpretation of the Suitors Fund Act, he said ‘don’t treat this as a precedent’.

Those two anecdotes may seem an unlikely platform for the general theme of this lecture. This lecture is concerned with the law in action through litigation, generally reacting to societal change, but sometimes acting upon it. The anecdotes however provide a useful entry point.

Sir Francis’ comments on each of those occasions stimulate reflection upon the common law method and the place in it of precedent and principle which allow it to engage with societal change whether that method be applied to constitutional law, statute law or the common law itself.

Precedent plays an important part in the life, the stability, the coherence and the development of the law. Precedent can guide the growth of principle but cannot be allowed to stunt it. It serves as an instrument of the legal system, but not so as to handcuff justice. There is nothing novel in that proposition. Lord Mansfield, who had more than one first to his name in the development of the common law, said in a judgment in 1774: the law of England would be a strange science indeed if it were decided upon precedents only.

Precedents serve to illustrate principles … and these principles run through all the cases …17 A more recent perspective on precedent, principle and change was offered in 2008 by a leading scholar in the area, Professor Neil Duxbury who observed that the common law requires ‘not an unassailable but a strong rebuttable presumption that earlier decisions be followed.’18 Precedent must be used according to its nature and its proper purposes. Sometimes it is read as a kind of dry statutory text. Sometimes it is misread in a way which avoids thinking about underlying principle — for example, reading a case as identifying

a necessary condition for some legal result, and alternatively as identifying a sufficient condition for some legal result.

That sort of reading turns precedent into a convenient tick-box avoiding the need for careful reflection upon what the decision actually says and the assumptions, concessions or premises upon which it is based.

Precedent, as the late Julius Stone pointed out, offers leeways of choice — in the various ways of finding a ratio decidendi of a case, the materiality of the factual elements of the precedent decision and the level of generality at which those factual elements are material. Those leeways of choice are essential to enable the law to adjust, as it must, to new circumstances. Stone wrote in 1984 that the pace of societal change, even then, demanded: The law and its judges should … help rather than hinder an orderly and circumspect adjustment to change in social life. The leeways of choice available to appellate judges when the law is disputed have been for centuries an arena for further adjustment. In an age of unprecedented pressures for further adjustment, prudence demands that we understand the range and magnitude of these leeways as an ongoing social resource, and use them for the maintenance of justice in the contemporary legal order.19 The common law method is opentextured, whether applied to constitutions, broadly framed statutory provisions or the development and application of common law doctrines.

It has to be in order to respond to the unimagined case which may be just around the corner and, beyond that, as Stone says to allow room for adjustment to social change.

The drafters of the Australian Constitution, by way of example, knew that they were drafting for unimagined futures. Sir John Downer, speaking of the judiciary of the future at the 1898 session of the Australasian Federation Conference in Melbourne said: With them rests the obligation of finding out principles which are in the minds of this Convention in framing this Bill and applying them to cases which have never occurred before, and which are very little thought of by any of us.20 In similar vein, Andrew Inglis Clark, one of the principal architects of our written Constitution said of it in 1901: it must be read and construed,

not as containing a declaration of the will and intentions of men long since dead, and who cannot have anticipated the problems that would arise for solution for future generations, but as declaring the will and intentions of the present inheritors and possessors of sovereign power, who maintain the Constitution and have the power to alter it, and who are in the immediate presence of the problems to be solved.21 Those observations go to the intersection of the Constitution with societal change which can present new cases not in the minds of the drafters. They reflect the principles and traditions of the common law method of which Australians are the inheritors.

Today’s world, 32 years after Sir Francis’ 1987 paper on ‘The Moving Finger or the Irremovable Digit’, has seen far more change with greater impact on concepts of social justice and perceptions of the legal system than could have been imagined by even the most gifted futurologist at the time of the speech.

Even as he delivered his speech a case was pending in the High Court which was to result in what Justice Gummow would later describe as a ‘perceptible shift’22 in the common law as the ultimate constitutional foundation in Australia.

That was, of course, Mabo (No 2),23 decided in 1992, in which the High Court rejected a false view of Australian history which had been entrenched in legal precedent by the Privy Council in Cooper v Stuart in 1889.24 In that decision the Privy Council had described Australia at the time of its colonisation as ‘a tract of territory practically unoccupied without settled inhabitants or settled law.’ That precedent was treated as binding by the Supreme Court of the Northern Territory in Milirrpum v Nabalco25 even though the trial judge had found on the evidence before him ‘[a] subtle and elaborate system highly adapted to the country in which the people lead their lives’ — a system which he characterised as a government of laws and not of men.26 It can fairly be said of the Mabo decision, which rejected that precedent, that it not only changed the law but effected an important shift in societal power structures affecting Australian Indigenous people. For perhaps the first time they moved beyond claiming grace and favour grants by statutory or executive action and asserted rights which the common law said they had.

At the time Sir Francis made his speech about social change and perceptions of 19

justice in 1987, there was little talk about same sex marriage or the proposition that the Constitution properly interpreted would allow the Commonwealth Parliament to make laws to provide for such unions. In the event, a profound change in societal attitudes led to litigation the result of which enabled those societal attitudes to be respected and given effect by the Parliament of the Commonwealth.

With legal change and societal change, the question may often be asked: what comes first, the chicken or the egg? In a sense societal change always comes first. The cases which come before the courts and place demands on existing principles are a reflection of things happening in wider society. The courts do not have an agenda for promoting social change.

One of the biggest societal changes of our time is the rapidly dawning realisation of the truth and implications of anthropogenic climate change. There is an enhanced global and local public awareness of its significance for all reinforced by extreme weather events around the world. That awareness is reflected in international agreements, in regulatory advice, in investor, corporate and non-government organisational responses and in sometimes acrimonious public debate. Politically it seems to present, at times, intractable problems for governments hampered by the challenge of reconciling conflicting interests and, in some cases, having to overcome the stupefying effects of assurances from special interests and ideological warriors that all will be well if we just let nature take its course.

What, if any, parts do courts have to play in this area? In answering that question, it is necessary to restate that courts, at least in the common law world, are not programmatic policy-making institutions.

They hear particular cases which come before them and they decide those cases. Their decisions may be precedents and those precedents may become vehicles for the development of principle. Such principles may be vulnerable to abolition or modification by legislation unless they are constitutional in character. Sometimes, however, a new principle or development of principle so accords with attitudinal change in society that it is difficult to set aside politically.

Climate change is a relatively new front in multi-dimensional debates about environmental issues which have taken place over many years involving action in the political and social spheres and sometimes litigation. Environmental groups were actively involved in litigation 20 | BRIEF FEBRUARY 2020

with governments and the private sector at the time that Sir Francis was Chief Justice. Sometimes it was litigation involving the prosecution of environmental activists.

Environmental groups sought to make governments and the private sector more responsive to their concerns. Often they were on the lookout for a plaintiff aggrieved by some adverse environmental action with standing to bring a case to court. The Trade Practices Act 1974 (Cth) was invoked in relation to statements in trade or commerce by uranium producers and by the timber industry defending their practices. The Mining Warden’s Court was a field of contest where exploration and other mining tenements were being sought and third party environmental groups sought to object and argued their right to do so.

I think it was in the early 1980s that I appeared for the Western Australian Conservation Council in the Mining Warden’s Court objecting to the grant of a permit to a mining company to explore for coal under Mt Lesueur. David Ipp appeared for the miner. I pleaded the fragile biodiversity of Mt Lesueur. David Ipp said the people of Western Australia had a right to know what was underneath the ground. The peoples’ right to know won the day in the Warden’s Court. That battle was lost but in the long run the war was won. In the face of opposition from farmers, residents, unions, artists and scientists, CRA discontinued plans to establish a coal mine and power station in the area. In 1992, the Mt Lesueur National Park was gazetted.27 In that case litigation was an opening shot in a long running campaign — what was ultimately effective was community mobilisation across political lines.

In 1986, about ten years after the Conservation Council’s unsuccessful attempt to prevent exploration for coal on Mt Lesueur, the first Australian Environmental Defender’s Office was established in New South Wales. There is now a national network of such bodies.

In late 1995 a group of lawyers, together with the Conservation Council of Western Australia, formed the Environmental Defender’s Office of Western Australia which commenced operations in March 1996.

The Environmental Defenders Offices undertake a mix of functions. They provide representational and nonlitigious advocacy on environmental questions, they make law reform submissions and they litigate on behalf of communities, individuals and nongovernment organisations in relation

to environmental matters. They also undertake community education.

The range of activities undertaken by the Environmental Defenders Offices reflect the reality that litigation is just one item in a menu of responses to environmental issues. Those responses may be general seeking public policy development. They may be specific focussing on a particular case. Particular cases, as mentioned earlier, can enliven a new principle or extend an existing principle to new circumstances.

Over the decades since some of the quixotic engagements of the 1970s and early 1980s environmental law in Australia has become part of the public law landscape in which governments, government authorities and the private sector must operate. Litigation is one of the aspects of that landscape that has, I think, contributed to changes in societal attitudes to the protection of our natural environment. It has also enlivened pushback from government and some elements of the private sector.

Climate change today presents a global environmental challenge unlike any that humanity has faced before. There have been international and national responses to it and a variety of interests have weighed into the public policy debate. They include those who still see climate change concerns as a species of green theology or as a vehicle for social re-engineering by activists unconcerned with the impact of their agendas on people’s jobs and the economy, particular in rural and regional areas.

There are others who call for immediate and radical change in public policy and whose public protests, as we have recently seen in Perth, are deliberately disruptive in order to draw attention to their cause.

Regulators in this fraught area have to deal with the tensions between public and private interests which are not always mutually exclusive. A case illustrating those tensions was the issuance by the Environmental Protection Authority of Western Australia (EPA) in March 2019 of a document entitled ‘Technical Guidance Mitigating Greenhouse Gas Emissions’.28 Its purpose was to address the EPA’s objectives for greenhouse gas emissions from new or expanding operations, including so-called Scope 3 Emissions by downstream project products. The document was said to: •

discuss circumstances under which the EPA would assess greenhouse gas emissions associated with development proposals;

One of the biggest societal changes of our time is the rapidly dawning realisation of the truth and implications of anthropogenic climate change.

•

outline relevant considerations for mitigating greenhouse gas emissions consistent with the objects of the Act;

•

ensure proposals that contribute to Western Australia’s greenhouse gas emissions are assessed in a sound and consistent manner that demonstrates how the EPA’s objectives for the ‘greenhouse gas emissions’ will be met.

The EPA stated in the document that the approaches it outlined were not new and had been applied to significant and relevant proposals subject to formal environmental impact assessment for almost two decades. Nevertheless it was widely seen as adopting a more stringent approach. The Guidance was described as complementary to existing national policy settings and consistent with goals for reducing greenhouse gas emissions under the United Nations Framework Convention on Climate Change (UNFCCC).29 The document referred, among other things, to Australia’s 2030 Paris Agreement targets. It noted that Western Australia was said to have the second highest per capita emissions of all Australian States and Territories with emissions per capita well above those of other

developed economies including resourcebased economies such as Canada. The emissions trajectory in Western Australia was said to be concerning in light of Australia’s international commitments and increasingly stringent global agreements.

On its face the Guidance document reflected a State regulator responding to Australia’s international obligations in relation to protection of the global environment.

Despite the fact that the document issued by the EPA had no legal force and that the EPA is not the final decisionmaker on proposals, they were perceived as creating a more stringent regulatory regime for the proponents of emitting developments. And, at a practical level, that may well have been the case.

There was an immediate reaction. The ABC News, on 8 March 2019, reported that concerns had been raised with the Premier by investors and industry representatives. In the event, the EPA withdrew the Guidance with a view to consulting further with stakeholders and the public.

The EPA then issued a Background Paper on Greenhouse Gas Emissions and invited submissions. The EPA’s response to the mining and resources sector protests is not to be criticised.

Regulators are not courts. They are

arms of the executive government. While they must comply with their statutory objectives and, to that extent, statutory independence, they are not obliged to act like courts. Sometimes a regulator has to make a judgment call about policy development. Regulatory policy decisions are different from judicial decisions. A judicial decision cannot be withdrawn because of private sector and government pressures and may, in a particular case, set a general principle for future similar cases. Parliament cannot legislate to directly set aside a judicial decision. On the other hand, as noted earlier, the effect of a judicial decision can be overturned by changing the law which underpins it unless that law is the law of the Constitution.

A leading example of judicial decisionmaking in this area in Australia was the recent judgment of the Land and Environment Court of New South Wales, delivered on 8 February 2019 in Gloucester Resources Ltd v Minister for Planning.30 In that case Preston CJ considered an application to mine coal from an old open coal mine one or two kilometres from the boundary of a country town. Ministerial consent had been refused. A number of factors weighed against the mine and, as his Honour found, so did greenhouse 21

gas emissions. The emissions were those associated with the construction and operation of the mine and those associated with the transport and combustion of the coal which would all contribute to climate change.

The Court found a causal link between the project’s cumulative greenhouse gas emissions and climate change and its consequences. The cumulative emissions would contribute to the global total of greenhouse gas concentrations in the atmosphere and thereby affect the climate system and cause climate change impacts. In that way the project would be likely to have indirect impacts on the environment, including the climate system, the oceanic and terrestrial environment and people.31 The fact that the aggregate emissions of a particular project represented only a small portion of the total of greenhouse gas emissions across the globe did not matter. All greenhouse gas emissions are cumulatively important and must be addressed through abatement from a range of small sources. His Honour also dismissed the argument that another coal mine would be approved in another country with less stringent environmental policies to meet global demand for coking coal and that the greenhouse gas emissions would nevertheless occur.

The judgment made extensive reference to scientific expert evidence, including evidence of the influence of climate change on worsening extreme weather in Australia.32 The judgment quoted from the evidence of Professor Steffen who observed that: global greenhouse gas emissions are made up of millions, and probably hundreds of millions of individual emissions around the globe. All emissions are important because cumulatively they constitute the global total of greenhouse gas emissions, which are destabilising the global climate system at a rapid rate. Just as many emitters are contributing to the problem, so many emission reduction activities are required to solve the problem.33 The effects of such a decision, if not overturned on appeal, can only be overcome by legislative action which may involve a political cost. Of course it may be that although a precedent, it is not a binding precedent and although it may be said to enunciate a principle in relation to Scope 3 Emissions, other courts might not follow it or find it inapposite to their cases or say it was obiter.

Litigation has its advantages and limits 22 | BRIEF FEBRUARY 2020

and it may lead to responses from governments designed to overcome the effect of individual decisions. It is nonetheless an important mechanism for resolving, in a non-political forum, justiciable conflicts between opposing interests affected by responses or nonresponses to climate change. And the fact is that climate change litigation is now a global phenomenon.

The Grantham Research Institute on Climate Change and the Environment34 recorded 1,023 cases in the United States in the period from May 2018 to May 2019.

The next most prolific jurisdiction was Australia with 94 cases. The European Union and Britain followed with 55 and 53 respectively. New Zealand and Canada had 17 and 16 cases.35 Most cases have been brought against governments by citizens, corporations and NGOs. They are brought by plaintiffs seeking mitigation measures and plaintiffs resisting them. Some can be classified as strategic, seeking public policy outcomes. Others may be more narrowly focussed challenging ministerial and regulatory decisions on particular projects or involving actions against private sector actors.

A leading example of strategic litigation is the ongoing case between Urgenda Foundation and The State of Netherlands, in which the District Court of The Hague in 2015 held that the Dutch Government has a legal duty to strengthen emissions reduction targets for 2020 and cut emissions by at least 25% below 1990 levels. The decision was reaffirmed by the Court of Appeal in October 2018 and is presently before the Supreme Court of the Netherlands.36 Litigation in particular cases may draw attention to the way in which climate change risk informs statutory and common law duties particularly in the private sector.

There is an emerging focus on the statutory and fiduciary duties of company directors in Australia and elsewhere to exercise due care and diligence and to disclose risks which may materially affect the interests of the company. Noel Hutley SC and Sebastian Hartford Davis issued a joint opinion in October 2016 on that issue which is in the public domain.

A supplementary opinion issued on 26 March 2019 strengthened their advice: it is increasingly difficult in our view for directors of companies of scale to pretend that climate change will not intersect with the interests of their firms. In turn, that means that the exposure of the individual

directors to ‘climate change litigation’ is increasing, probably exponentially, with time.37 Earlier, in June 2018 a Commissioner of the Australian Securities and Investments Commission advised directors to carefully consider the Hutley and Hartford Davis opinion.

Lord Sales, a Justice of the Supreme Court of the United Kingdom, referred to the Hutley-Hartford Davis opinion when addressing the same topic in a speech to the Anglo-Australian Law Society in Sydney in August. He said of Australia and the United Kingdom: environmental considerations may and, increasingly, must be taken into account by directors, particularly where there may be financial impacts on the company.38 The impact and utility of climate change litigation will depend upon those aspects of the legal system which can be called in aid by plaintiffs. A constitution with entrenched human rights, including social and economic rights, may provide opportunities for outcomes which cannot be overcome by legislative change.

In Australia there is no direct constitutional foundation for a judicial intervention of that kind in public policy.

In some federations sub-national legal systems may provide a different range of opportunities for action. Human Rights Acts in Victoria, Queensland and the Australian Capital Territory impose duties on public authorities to take account of human rights in their decision-making.

The application of those duties to decisions relating to greenhouse gas emissions is an open question but one worthy of exploration.

Short of constitutional provisions, and general human rights legislation, there are statutes national and subnational which cast duties upon public authorities and private sector entities amenable to enforcement by regulators acting of their own motion or on complaint. Such statutory duties include compliance with pollution and emission standards relevant to climate change. At a more general level are the statutory duties imposed on directors in relation to diligence and disclosure. The Australian Competition and Consumer Law prohibits misleading or deceptive conduct in trade or commerce and allows any person to take private enforcement action. This may be relevant to misleading or deceptive commercial speech, for example, as to the carbon footprint associated with particular products or processes. Regulators

may be the subject of judicial review in appropriate cases where they approve or refuse approval or imposes conditions on approvals which are adverse to the interests of affected communities or project proponents. Beyond statute in Australia and other common law jurisdictions is the common law and in particular the common law of tort, including private and public nuisance and the troublesome tort known as breach of statutory duty.

Sometimes public interest litigation can coincide with a public policy tipping point. An example in Australia, which I have already mentioned, was the litigation which led to the recognition of native title at common law. Climate change litigation is unlikely to lead to an individual decision which gives rise to an equivalent public policy outcome. It can, however, lead to enhanced sensitivity in the public and private sector of the need to address the climate change implications of their activities.

Beyond domestic forums, the utility of litigation in international forums is subject to the incentives and willingness of States to submit to the jurisdiction and comply with the outcomes. Of course, reputational factors may be in play. On the other side of the ledger, international arbitral forums have been used by private sector investors claiming that adverse action by government has impacted on their rights under investment treaties or free trade agreements. There is an increasing tendency however to carve out environmental regulation from that investor protection.

Overall, climate change litigation

presents a rather complex global picture characterised by jurisdictional diversity between States and, in federal systems, within States. While there will always be particular cases worthy of pursuit because of the merits of those cases and the benefits of particular outcomes the question remains — can such litigation. change the public policy climate? I tend to think that, in conjunction with other factors it can raise public awareness and public and private sector sensitivity to and responsiveness to the challenges presented by climate change today.

More importantly it is undertaken against the background of the increasingly obvious truth that climate change is happening rapidly.

Notes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

Conclusion

21

As noted, Sir Francis Burt was sensitive to the ways in which social change can place new demands on existing legal principle and changing public perceptions of what is required of justice and the law. The common law method of which he was an accomplished master, demands flexibility to meet the climate of the times. In the particular field of climate change, the law must be able to show that it is up to the task when the responsibility of hearing and deciding cases responding to that change is thrust upon it.

22 23 24 25 26 27

It has been an honour to deliver this lecture, to celebrate the memory of a great Australian Judge and a great Western Australian public figure who many of us still remember with deep respect and affection.

35 36

28 29 30 31 32 33 34

37 38

Yates v The Queen (1987) 25 A Crim R 361.

Yates v The Queen (2013) 247 CLR 328.

Ibid 341 [36] (French CJ, Hayne, Crennan and Bell JJ).

Ibid 343 [44].

(1981) WAR 286, 290.

Royall v The Queen (1991) 172 CLR 378, 387.

Ibid 411–12.

Ibid 423.

(1994) 179 CLR 500.

[1982] WAR 171.

(1994) 179 CLR 500, 514.

Interview with Francis Burt QC, ‘The Foundations of the Independent Bar’ (1992) 19(7) Brief 11, 12.

Sir Francis Burt, ‘Launch of The Law Society’s Web Site‘(August, 1998) Brief 15.

Sir Francis Burt, ‘The Moving Finger or the Irremovable Digit’ (1987) 61 Australian Law Journal 465–70.

Ibid 467.

Ibid.

Jones v Randall (1774) 1 Cowp 37, 39; 98 ER 954, 955.

Neil Duxbury, The Nature and Authority of Precedent (Cambridge University Press, 2008) 183.

Julius Stone, Precedent and Law: dynamics of common law growth (Butterworths, 1985) 271.

Official Record of the Debates of the Australasian Federation Conference, Melbourne, 28 January 1898, 275 (Sir John Downer).

A Inglis Clark, Studies in Australian Constitutional Law (Partridge and Co, 1901) 21.

Wik Peoples v Queensland (1996) 187 CLR 1, 182.

Mabo v Queensland (No 2) (1992) 175 CLR 1.

[1889] 14 App Case 286.

(1971) 17 FLR 141.

Ibid 267.

Janis Bailey, ‘Mt Lesueur as a ‘Space of Engagement’: A Rural-Urban, Cross-Class Conservation Campaign’ (Liverpool University Press Online).

Environmental Protection Authority, ‘Technical Guidance Mitigating Greenhouse Gas Emissions’ (7 March 2019).

United Nations Framework Convention on Climate Change, opened for signature 3 June 1992, 1771 UNTS 107 (entered into force 21 March 1994).

[2019] NSWLEC 7; 234 LGER 257.

Ibid [525].

Ibid [436].

Ibid [450].

Joan Setzer and Rebecca Byrnes, ‘Global trends in climate change litigation: 2019 snapshot’ Grantham Research Institute on Climate Change and the Environment, Policy Report, July 2019.

Ibid 3.

On 20 December 2019, the Supreme Court affirmed the decision of the Court of Appeal.

Noel Hutley and Sebastian Hartford Davis, ‘Climate Change and Directors’ Duties’, The Centre for Policy Development, 26 March 2019, 9 (emphasis in original).

Lord Sales, ‘Directors’ duties and climate change: Keeping pace with environmental challenges’ (AngloAustralasian Law Society, Sydney, 27 August 2019) (emphasis in original).

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23

Justice Reinvestment: Building Communities Not Prisons

By Greg McIntyre SC, Barrister, John Toohey Chambers; Immediate Past President, The Law Society of Western Australia, and The Hon Justice Robert Mazza, Supreme Court of Western Australia

This article is based on a presentation to the Committee for Economic Development of Australia on 29 November 2019 What is justice reinvestment?

rose from 218 to 308 per 100,000.2

Justice reinvestment involves the redirection of resources from the criminal justice system into local communities which have a high concentration of incarceration and contact with the criminal justice system. It uses placebased, community-led initiatives to address offending and incarceration.

Justice reinvestment requires initial funding in the expectation of longer term financial and social rewards.1

Aboriginal people comprise 4% of the WA Population but 73% of young people in custody and 38% of the adult prisoner population in Western Australia.3 Western Australia has 22% of the national Indigenous prisoner population.4 WA has the highest Indigenous imprisonment rate of any State or Territory, at 3,937 per 100,000, compared to the Northern Territory at 2,958.5

Why consider justice reinvestment?

Numbers Western Australia has the second highest daily imprisonment rate in the nation, at 308 prisoners per 100,000 of the adult population. The highest, the Northern Territory, is more than three times that rate.

Between June 2000 and June 2016, Western Australia’s imprisonment rate

24 | BRIEF FEBRUARY 2020

The national average daily Aboriginal and Torres Strait Islander imprisonment rate has increased since the Royal Commission into Aboriginal Deaths in Custody in 1991 from 1,359 persons to 2,430 persons in 2017.

Cost Western Australia spends $558 million on prisons and detention centres (of $2.8 billion nationally).6 The average cost of an adult prisoner is $359 per day or $131,035 a year.7

It costs $977 per day (or $356,606 per annum) to keep a young person in custody in WA. A Swiss boarding school costs $336 a day (or $122,706 per annum) and the most expensive boarding school in WA costs $145 a day (or $53,100 per annum).

Several inspections in 2018-19 by the Inspector of Custodial Services highlighted the widening disparity between the mental health needs of prisoners and the services provided in custody. The Inspector also noted that opportunities for rehabilitation while in prison were limited. Rehabilitation is one way of reducing recidivism. In 2016-17, 45% of prisoners returned to corrective services within two years of release. The figures are worse for young people and Aboriginal people. High recidivism places even more pressure on the prison system and resourcing by increased numbers and overcrowding.8 Imprisonment inflicts collateral damage to the well-being of families and gives rise to the possibility that children will imitate a parent’s criminal behaviour.

How does justice reinvestment work?

risk assessment. Many are similar in style to a boarding school.

A justice reinvestment approach directs resources and attention to communities that are disproportionately represented in the prison system. It involves four steps:9

2. developing options for reducing offending;

The facilities can cater for a majority of 16 to 17 year olds, but have also accommodated 20 to 24 year olds.

A person is admitted to the facility after a 20-day comprehensive Court Assessment. An individual and family development plan is created. The detention period is set at a minimum of nine to 12 months so the individual is in the facility for an academic year.

Post-release probation is usually for six months. The Court order is subject to judicial review after two to three months and the prosecutor reviews the order and visits the facility after six months.

3. implementing reforms and reinvesting in communities; and

Justice reinvestment in WA

1. ‘Justice Mapping’ which involves gathering data on offending and imprisonment rates and its causes (such as drug and alcohol abuse, parole violations, inability to obtain bail, mandatory imprisonment for three home burglary convictions) and the available services;

4. evaluating the effectiveness of the program.

Justice reinvestment in the USA In the US, justice reinvestment approaches have been driven by public safety concerns and escalating prison numbers since the 1970s. By 2015, there were 17 local justice reinvestment initiatives and 24 at the State level.

The programs vary as they are locally managed. For example, the program in Travis County, Texas, provided supported housing for released prisoners with a history of homelessness, mental illness or drug use. The growth in the prison population for the State of Texas was mitigated by about 9,000 in 2008-09 and three prisons were closed.

Diagrama Foundation An approach to justice reinvestment with youth is the Diagrama Foundation, which could be investigated as an option in Western Australia.

The Diagrama Foundation is a nongovernment organisation established in 1991 in Spain. It created a new concept of Youth Engagement Centres which now account for 70% of the custodial facilities for youth in Spain. The Foundation now also operates in France, Germany and the United Kingdom. The staff of the Centres are predominantly educators trained in child and youth development. It operates on an individual case-management model with the case management team usually including an educator, a psychologist, a social worker, a lawyer and a doctor. There are typically only three security officers for 50 to 60 youth. The facilities in which the youth are held are of the minimum physical restraint type, depending on a

The leading agency for justice reinvestment in WA is Social Reinvestment WA. It brings together a coalition of 20 not-for-profit groups.

There are 21 non-government run programs, 11 government-funded services in WA and four nation-wide projects offering various contributions to justice reinvestment. The Wirrpanda Foundation is an example of an agency which runs a collection of rehabilitative, diversionary and education programs: Moorditj Ngoorndjak Mentoring Program, Deadly Sista Girlz and Deadly Brotha Boyz.

The Law Society’s Lore/Law Project An example of a justice reinvestment project in WA is the Lore/Law project10 of the Law Society of Western Australia, facilitated by Millennium Kids. It focuses on training an Aboriginal and Torres Strait Islander Youth Leadership Team to develop a Human Centred Design in high risk communities, which encourages communities to develop their own solutions.

The Lore/Law Project’s focus is on: • • • • •

Youth; Aboriginal and Torres Strait Islander leadership; Cultural appropriateness; Capacity building; and Local communities.

The Lore/Law Youth Leadership Team have all completed, mentored or facilitated Millennium Kids leadership training.

The Lore/Law Project’s approach is to allow people in identified local communities to find solutions to their problems. For example, the Armadale

Project identified fare evasion and consequent accumulation of fines as a problem. They proposed the development of a phone app to allow young people to look up the status of their fines and make contributions towards paying them off. Other ideas included training to help them better manage their finances and add credit to their Smartriders. A short film on fare evasion and the consequences of accumulating fines was also proposed.

Unfortunately, none of the proposals have been progressed due to a lack of funding.

Lotterywest and the Department of Justice’s Criminal Property Confiscation Grants Program have recently approved grants for the Lore/Law Project in the Kalgoorlie-Boulder and Coolgardie region.

Conclusion A justice reinvestment approach provides an alternative to detention and imprisonment that is focused on changing behaviour and reducing recidivism; both of which are in the public interest. Its focus is on building communities and social capacity, particularly in our youth and Aboriginal communities.

The challenges for justice reinvestment initiatives would appear to be twofold – first, to work in partnership with communities rather than imposing justice reinvestment plans on them; and secondly, to devise tailored strategies to address the particular drivers of incarceration in a community.

Endnotes 1

ALRC Pathways to Justice - Final Report 2017 [1.48], [4.1], [4.2].

2

Australian Bureau of Statistics (2016) 4512.0 – Corrective Services, Australia, June Quarter 2016.

3

Government of Western Australia, Department of Corrective Services, Adult Prisoners in Custody – Quick Reference Statistics – 31 March 2016.

4

Australian Bureau of Statistics (2016) 4512.0 – Corrective Services, Australia, June Quarter 2016.

5

Australian Bureau of Statistics (2016) 4512.0 – Corrective Services, Australia, June Quarter 2016.

6

Productivity Commission, Report on Government Services – Corrective Services (2016) table 8A.6.

7

Productivity Commission, Report on Government Services – Corrective Services (2016) table 8A.7.

8

Office of the Inspector of Custodial Services, Annual Report 2018-19.

9

David Brown, Melanie Schwartz and Laura Boseley, ‘The Promise of Justice Reinvestment’ (2012) 37(2) Alternative Law Journal 96, 97; Tammy Solenec, ‘Justice Reinvestment – What difference could it make in WA?’, Sir Ronald Wilson Lecture 2014, published in Brief (October 2014) 20.

10

Lore/Law is a 25+ year skills-for-life program that aims to support a reduction in the high rates of Aboriginal and Torres Strait Islander youth contact with the WA justice system in the long-term.

25

Statue of Sophocles in Athens, Greece

The Common Law, Contemporary Values and Sophocles' Antigone Robert French Oration

By The Hon Justice Peter Quinlan Chief Justice of Western Australia Hellenic Australian Lawyers' Association (WA Chapter), 31 October 2019

It is a great honour to be asked to deliver this year’s Robert French Oration to the WA Chapter of the Hellenic Australian Lawyers Association.

May I begin by acknowledging the Whadjuk people of the Noongyar nation, the traditional owners of the land on which we gather tonight, and pay my respects to their Elders past, present and emerging. The importance of such an acknowledgement at the commencement of the Robert French Oration will be obvious to anyone with even a passing knowledge of the contribution made by the Hon Robert French AC to the law in Australia over a legal and judicial career spanning almost 50 years.

26 | BRIEF FEBRUARY 2020

As the twelfth Chief Justice of Australia, Robert French was the first Western Australian to hold that office, the highest judicial office in this country. It is fitting, then, that the Robert French Oration should be hosted by the Western Australian branch of the Hellenic Australian Lawyers Association.

Any attempt to summarise or encapsulate a career as diverse, and a contribution as significant, as that of Robert French to the law and the

administration of justice would, of course, fall well short of the mark. I do not propose to make such an attempt this evening. It will, I hope, suffice for me to acknowledge Robert French’s conspicuous service to the people of Australia over so many decades, including over 30 years as a judge.

That service continues to this day, as Robert French continues to engage with the significant issues facing Australia as a maturing independent nation in the 21st Century. His recent public statements, for example, in relation to proposals for an Indigenous voice to the Australian Parliament, were an important and timely contribution to the national conversation in relation to the

ongoing process of the reckoning of the relationship between our relatively young Nation and the ancient and enduring cultures of its First Peoples.1 I refer to this contribution in particular, as it reflects perhaps the most conspicuous and enduring theme in Robert French’s diverse and varied career, both as a lawyer and judge: that is, recognition of, and engagement with, the many unique legal issues that face Aboriginal and Torres Strait Islander Peoples. That engagement was evident at the very beginning of Robert’s legal career, with his instrumental role in the establishment of the Aboriginal Legal Service of Western Australia in 1973. Twenty years later, it was on clear display during his tenure, from 1994 to 1998, as the inaugural president of the National Native Title Tribunal, established under the Native Title Act 1993.

The passage of the Native Title Act, of course, followed the High Court’s decision recognising native title rights under the common law of Australia in Mabo v Queensland [No 2]. The recognition of native title rights and interests by the common law, as declared in Mabo [No 2], represents a significant example, perhaps the most significant example, of the theme raised by the title of my address this evening: the intersection of the common law and contemporary values. How Sophocles’ Antigone fits in to that theme, I shall come to a little later.

Mabo [No 2] therefore provides a useful starting point for my remarks this evening.

In Mabo [No 2], Sir Gerard Brennan (with whom Mason CJ and McHugh J agreed) set out the approach the High Court should take in discharging its duty to declare the common law of this country in light of ‘contemporary values’.

It was an approach that expressly contemplated the influence of such values, while at the same time charting the limits of that influence. His Honour said this:2 In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency. ... The peace and order of Australian society is built on the legal system. It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannot be

destroyed. It is not possible, a priori, to distinguish between cases that express a skeletal principle and those which do not, but no case can command unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system. If a postulated rule of the common law expressed in earlier cases seriously offends those contemporary values, the question arises whether the rule should be maintained and applied.

Shortly prior to his own retirement as Chief Justice of Australia, Robert French (speaking extra-judicially) described this judgment of Sir Gerard’s as ‘a dramatic example of common law reasoning by reference to contemporary values’.3 The immediate questions raised by such reasoning are: ‘whose values?’ and, importantly, ‘how do we know them?’

I am not, of course, asking these questions for the first time. They were a matter of significant comment when Mabo [No 2] was delivered in 1992. As Chief Justice French remarked in the address I have just referred to:4 There was much controversy after Mabo about the invocation of ‘contemporary values’. Those invoked by the Court were values which were plainly not shared by all members of the Australian community. Some critics suggested that the idea of contemporary values was too elusive to legitimately apply to judicial decision making. At best, one might discern community attitudes which were themselves capable of change from time to time.

The use of ‘contemporary values’ in the development of the common law re-emerged in the High Court later in 1992 in Dietrich v The Queen. On this occasion Brennan J found himself in the minority, as to whether the Court should hold that the appellant had been denied a fair trial by reason of his lack of legal representation on serious criminal charges. The majority found that Mr Dietrich had been so denied a fair trial - a result which was, at least arguably, contrary to its earlier decision in McInnis v The Queen.

Sir Gerard, while remarking that ‘changes in the common law are not made whenever a judge thinks a change desirable’, confirmed that:5 The common law has been created by the courts and the genius of the

common law system consists in the ability of the courts to mould the law to correspond with the contemporary values of society. Had the courts not kept the common law in serviceable condition throughout the centuries of its development, its rules would now be regarded as remnants of history which had escaped the shipwreck of time.

Significantly, his Honour went to say something as to the nature of ‘contemporary values’. He said this: The contemporary values which justify judicial development of the law are not the transient notions which emerge in reaction to a particular event or which are inspired by a publicity campaign conducted by an interest group. They are the relatively permanent values of the Australian community. Even if the perception of contemporary values is coloured by the opinions of individual judges, judicial experience in the practical application of legal principles and the coincidence of judicial opinions in appellate courts provide some assurance that those values are correctly perceived.

Notice a number of things about this passage.

First, the ‘contemporary values’ to which Brennan J refers are nevertheless said to be ‘relatively permanent’. There is, we might think, a certain tension about values that are, at the same time, ‘contemporary’ (characteristic of the present) and yet ‘relatively permanent’ (enduring over time).

Secondly, the passage is also notable for what his Honour identified as not being included within ‘contemporary values’: ‘transient notions which emerge in reaction to a particular event or which are inspired by a publicity campaign conducted by an interestgroup’.

While not in so many words, Sir Gerard appears here to be saying that ‘contemporary values’ are not to be determined by opinion polls. This is not to suggest that his Honour was bringing to bear the elitist notion that ‘judicial values’ are necessarily to be preferred to ‘community values’; a notion that, regrettably, finds currency from time to time in certain legal circles.

Sir Gerard, for example, was, and remains, a strong advocate for the role of juries as an assurance of the community’s right to participate in the administration of justice. As he said in 2012:6 27

Odeon of Herodes Atticus at the Acropolis, Athens, Greece

Community participation in the trial process is one of the important bonds between the courts and the people they serve. To be sure, there can be miscarriages of justice but, when it comes to the determination of the ultimate issues in a trial, the wisdom born of the various life experiences of twelve jurors is likely to be greater than the wisdom of a single judge, however experienced and learned the judge may be. The worldly wisdom of the jury cannot be supplied by a judge.

We can be confident, then, that in distinguishing contemporary values from ‘transient notions which are inspired by a publicity campaign’, Brennan J was not proposing that ‘contemporary values’ are somehow divorced from community values.

Finally, and to my mind most interestingly in this passage from Dietrich v The Queen, is the notion that ‘contemporary values’ are something which the Court must ‘perceive’ (as in ‘the perception of contemporary values’).

The words ‘perception’ and ‘perceive’ are Latin in origin: from the word perceptio (n) and percipere (v) (to seize or grasp). Given this evening’s audience I should identify the Greek equivalent: αἰσθάνομαι (aisthánomai).

This notion of ‘perception’ suggests something other than, and prior to, the outcome of some deductive (or even inductive) process of reasoning. No doubt, as modern psychology and philosophy reminds us, perception itself involves complex processing and is not simply the

28 | BRIEF FEBRUARY 2020

passive reception of external data.

Nevertheless, to ‘perceive’ someone or something suggests something more immediate and experiential than a process of logic. It suggests something we grasp from the world about us, rather than from the exercise of conscious mental processes. To me, at least, perception invokes a sense of the visual, even if the faculty of sight is employed as a metaphor (as in: “Yes, I see what you mean!”).

This is not the only area in which ‘perception’ is used to describe the way in which we discover legal principles.

Take this example, from the unanimous judgment of the High Court in the Native Title Act Case:7 In Giannarelli v Wraith, Brennan J said: “In the view of a court sitting at the present time, earlier decisions which are not binding upon it do not necessarily represent the common law of the earlier time, though they record the perception of the common law which was then current.”

His Honour went on to say that if a court, because it perceives the common law to be different from what it was earlier perceived to be, so declares it, then effect will be given to that declaration as truly representing the common law.

In this example, it is not merely the contemporary values that are ‘perceived’. It is the common law itself.

And, significantly, this passage lays emphasis on the intentional aspect of perception (in Husserl’s sense of the word intention). It suggests that the thing itself - the common law - has not changed; although the manner in which it appears to the conscious mind may well be different. To extend my visual metaphor, we see the thing in a new way (as if with new eyes).

Or, finally (and again from native title jurisprudence) take the High Court’s recognition in Yanner v Eaton that native title rights and interests, in addition to being ‘artificially defined jural rights’, are to be understood (borrowing an expression from Professor Kevin Gray and Susan Gray) as ‘a perception of socially constituted fact’.8 According to this view, property rights (but perhaps legal rights more generally) are ultimately a perception of facts that are constituted by social and cultural relationships. They reflect, as Professors Gray and Gray put it, the deeply ‘antiintellectual streak in the common law tradition which cares little for grand or abstract theories ... preferring to fasten upon the raw organic facts of human behaviour’.9 So how best are we able to perceive (‘to see’) these facts, particularly when these socially constituted facts are ‘contemporary values’ that are intended to guide the development, and the application of, the common law?

You will notice that I have included in this sentence reference to the ‘application of the law’, because even those of us who may not be as free as our brothers

and sisters on the High Court to develop the common law (or at least, the correct ‘perception’ of it), we are nevertheless required in the application of those principles, to a greater or lesser degree, to take account of contemporary values.

This is where Sophocles comes in. And where we might reflect a little on ‘seeing’ and on what are ‘community values’.

For this purpose I have chosen Antigone, the third and final instalment in Sophocles’ Theban plays (although it was the first of the three to be written).10 The play opens with Antigone, the daughter of Oedipus, entering the royal palace in Thebes, following an unsuccessful attack on Thebes by the armies of Argos led by her brother Polynices.

Her first line is an exclamation to her sister Ismene: My own flesh and blood - dear sister, dear Ismene, How many griefs our father Oedipus handed down!

To understand those griefs we need to go back in the story.

Oedipus was the son of Laius and Jocasta, the king and queen of Thebes.

Prior to his birth, the Oracle of Delphi had predicted that Oedipus would kill his father and marry his mother. To avoid the prophecy, Laius and Jocasta planned to have Oedipus killed in infancy. Oedipus was, however, rescued by a shepherd, ended up in Corinth and grew to adulthood unaware of his true parentage.

Years later, in an effort to escape the Oracle’s prediction of his fate (of which he had since become aware), Oedipus heads for Thebes. On the way he encounters his father, Laius, on the road, and following a fight over the right of way, Oedipus kills Laius in an act of

road-rage (not knowing of course that by unwittingly killing his father, he has fulfilled the first part of the prophecy).

When he arrives in Thebes, as a reward for freeing its citizens from the Sphinx, Oedipus is made king of Thebes and becomes the husband of queen Jocasta (who is, of course, his mother). Oedipus and Jocasta have four children together: sons Eteocles and Polynices and daughters Antigone and Ismene.

For reasons we need not go into, Oedipus vows to avenge the death of Laius (not realising he, Oedipus, is in fact the murderer) and later gets into a fight with his brother-in-law Creon (Jocasta’s brother), who he suspects of being Laius’ murderer.

In all of the intrigue that follows, Oedipus and Jocasta discover the truth that Oedipus is Laius’ murderer and Jocasta’s son. Jocasta hangs herself and Oedipus, discovering her body, blinds himself with the gold pins holding her dress together.

Oedipus is exiled, with his daughters Antigone and Ismene, where he dies at Colonus, a village near Athens.

While Oedipus is in exile, his sons Polynices and Eteocles fight over who is to rule over Thebes now that Oedipus has gone. Eteocles assumes the throne, but is challenged by Polynices, who attacks Thebes with the help of the Argives (the people of Argos). [Polynices’ attack on Thebes is not itself depicted in Sophocles’ Theban plays, but is the subject of the play by his contemporary Aeschylus: Seven Against Thebes.]

In the end, while the Argives are defeated, both Polynices and Eteocles lie dead, having killed each other in battle.

Creon, who all the while has been pulling the strings and sowing discontent, is the last man standing and ends up assuming

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the throne to become king of Thebes.

Which brings us back to the opening of Antigone. With both Polynices and Eteocles lying dead on the battlefield, Creon issues a decree that, while Eteocles is to be buried with full honours, Polynices, the traitor, must be left: unburied, his corpse carrion for the birds and dogs to tear, an obscenity for the citizens to behold!

Creon forbids anyone to bury Polynices under pain of death.

Antigone, the dutiful sister, is having none of this and is determined to bury Polynices.

He is my brother ... [she says] [Creon] has no right to keep me from my own.

And so, Antigone, in secret, buries her brother and gives him the proper burial rights. When the grave is discovered, Creon is furious: he orders the body uncovered and the culprit found.

So Antigone, in open defiance of Creon’s degree, buries Polynices again and crowns him with the ritual libations. This time, however, she is caught in the act and brought before Creon.

When asked by Creon if she had the gall to break his law, Antigone responds: Of course I did. It wasn’t Zeus, not in the least, who made this proclamation - not to me.

Nor did that Justice, dwelling with the gods beneath the earth, ordain such laws for men.

Nor did I think your edict had such force that you, a mere mortal, could override the gods, the great unwritten, unshakable traditions.

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first saw the light.

Despite this defiant appeal to the natural law over Creon’s edict, as far as Creon is concerned the matter is settled: Antigone must die. He orders that she be walled up in a rocky vault. She is, in effect, buried alive.

Creon’s determination to punish Antigone also puts him at odds with his son, Haemon, who as it happens, is engaged to be married to Antigone. They argue and Haemon leaves, saying ‘you will never set eyes on my face again’.

Eventually the blind prophet Tiresias enters the scene and explains to Creon that the gods are displeased. To put things right Creon must bury Polynices and free Antigone.

When Creon arrives at Antigone’s cave, however, it is too late. Antigone has hung herself and Haemon is clinging to her, wailing for his lost bride. In his anger and grief, Haemon attacks Creon, but misses and impales himself on his own sword.

In the meantime, Creon’s wife Eurydice, discovering that her son is dead, and overcome with grief, stabs herself to death at the palace altar.

Creon is left alone at the end of the play, surrounded by the devastation his rigid adherence to his unjust law has wrought him.

This brief synopsis of Antigone should, I hope, provide some indication of why it has been the subject of endless fascination for lawyers and philosophers of the law over many centuries. It was Hegel’s favourite drama11 - whether ancient or modern - and has been described, perhaps hyperbolically, as having an aurathat ‘envelops the law as no other work of art in the history of Western civilization’.12 Whether or not one is prepared to go this far, Antigone certainly provides a bracing reflection on the sometimes competing dictates of law and justice, on the challenge to reconcile the positive law with overarching fundamental principles, whether we call them natural law or human rights, and on the role (and courage) of dissidents in the face of despotic rule.

Reading the Theban plays afresh for the purposes of this address, I was also struck by how the Oepidal ‘curse’, as it is called in the cycle of plays (which runs from Laius to his son Oedipus and then to the whole generation that follows, including Antigone and her brothers) provides a devastating dramatization of what we now understand to be intergenerational trauma, the causes 30 | BRIEF FEBRUARY 2020

and effects of which are a pressing and urgent reality in Australia, particularly among the Aboriginal population.

And part of the appeal of Antigone, at least for a common lawyer, is that all of these themes are played out in a narrative form, rather than through the sometimes cold logic and metaphysics of the philosophers that followed the tragedians in Athens. The narrative form enables the themes to be presented in their full complexity, enabling us to ‘see’ new themes and ‘perceive’ new insights each time the narrative is told.

Which brings me back to the question I posed earlier: what Antigone might tell us about how we might be able to ‘see’ or ‘perceive’ the contemporary values of the community.

Because, as is common in Greek drama, the community is a character in Sophocles’ play: a character that takes the form of the chorus.

And what is most interesting about the chorus (or the community) in Antigone is how, and why, its values appear to change throughout the course of the play. Or, at least, how its (and our) perception of those values changes.

At the beginning of the play the chorus, elated at the victory over the Argives, and recognising Creon as ‘the new man for the new day’, embraces the justice of Creon’s new law. The leader of the chorus says: If this is your pleasure, Creon, treating Our city’s enemy and our friend this way....

The power is yours ...

And when Creon decrees the death of the mysterious criminal who has defied his decree, the chorus is positively rapturous. They break out in fervent praise of the majesty of human laws, such as that decreed by Creon: Man the master, ingenious past all measure past all dreams, the skills within his grasp he forges on, now to destruction now again to greatness. When he weaves in the laws of the land, and the justice of the gods that binds his oaths together, he and his city rise high – but the city casts out that man who weds himself to inhumanity thanks to reckless daring. Never share my hearth never think my thoughts, whoever does such things.

The values of the community appear to be clear. Whoever breaks Creon’s law is beyond the pale, to be cast out.

But notice this. It is all very lofty and abstract. The ‘man who weds himself to inhumanity’ is an abstraction. And it is not only an abstraction; it is an inaccurate one at that: little do the chorus know that their abstract criminal is in fact a young woman.

And also notice this. The chorus’ enthusiasm comes in response to Creon’s own rhetorical program: if you don’t find the man who buried that corpse, the very man, and produce him before my eyes, simple death won’t be enough for you.

I especially like the repetition here: ‘the man’, ‘the very man’, ‘produce him’; when the audience knows this ‘man’ is in fact Antigone.

We might even say that the chorus’ enthusiasm here reflects ‘transient notions inspired by a publicity campaign’ (to use Sir Gerard’s phrase). But does it accurately reflect the community’s true values?

The cracks begin to appear then Antigone is dragged in by a sentry. The chorus is shocked. It says: Here is a dark sign from the gods What to make of this? I know her, how can I deny it? That young girl’s Antigone! Wretched, child of a wretched father, Oedipus. Look, is it possible? They bring you in like a prisoner – why?

Of course, the chorus doesn’t know why Antigone is in chains. Yet. But notice the change in perception. It is no longer abstract: the chorus says ‘I know her’, ‘that young girl’. And I can say something about her life and her past: ‘child of a wretched father’.

Interestingly, however, the chorus remains quiet while Creon interrogates Antigone.

It is only when she is taken away that they speak.

And when the chorus does speak they still say nothing (yet) as to the quality of Creon’s law or his judgment.

Rather, they sing of the way Antigone is a victim of fate (not human laws) inflicted by the gods on the house of her father Oedipus: a house that has been rocked to its foundations ‘cresting on and on, from one generation on’ like a great mounting tide.

So they now see Antigone, but has the sight of Antigone changed their perception of the justice of Creon’s law: their contemporary values (if you will)?

We find that out a little later when Haemon speaks to Creon. ‘The man in the street’, Haemon says, ‘would never say anything displeasing to your face’.

But he goes on, and tells Creon what the community are really saying: But it’s for me to catch the murmurs in the dark, the way the city mourns for this young girl.

“No woman,” they say, “ever deserved death less, and such a brutal death for such a glorious action. She, with her own dear brother lying in his blood – she couldn’t bear to leave him dead, unburied, food for the wild dogs or wheeling vultures.

Death? She deserves a glowing crown of gold!” So they say, and the rumour spreads in secret, darkly …

The community’s values appear to have been completely inverted from before.

Not only do they see the ‘young girl’ (as opposed to the abstract ‘man wedded to inhumanity’), they question the wisdom of the law itself. They describe a breach of Creon’s law as a ‘glorious action’, deserving a crown of gold.

But, I want to suggest, it is not their values that have changed. Rather, it is a matter of perception. Their values appeared to be one thing when expressed in the abstract; but another when faced with the real and the concrete.

As the action of the play wears on the chorus becomes clearer in its questioning of the justice of Creon’s law, and, when Tiresias finally brings news of the gods’ displeasure, it is significant that Creon does not reverse the law immediately.

Rather he asks the chorus what he should do.

So, ironically, the tyrannical king now

asks the leader of the chorus: What should I do? Tell me … I’ll obey.

To which the leader responds: Go! Free the girl from the rocky vault And raise a mound for the body you exposed.

Which Creon runs to do, although tragically too late.

And so the law has come full circle.

Creon’s edict is reversed and it is reversed, at least on this reading, in light of the contemporary values of the community.

And those contemporary values came to light, not in the abstract, and not as a result of some form of Athenian opinion poll. Rather, those contemporary values came to light by way of the response of the individual members of the chorus when brought face to face with Antigone in chains. When faced with her full story in all its concrete details. It was not, in the end, a matter of thinking, but a matter of ‘seeing’ – and, of course, it was a particular kind of seeing, as underscored by the fact that its prophet, Tiresius, is the only character in the play who is physically blind.

To paraphrase William Blake: contemporary values have a human face.

How best then we are able to perceive community values? Antigone would suggest, not by slogans or abstract theories, but in the concrete way in which real people respond and behave in real human stories. Which is, of course, the genius of the common law itself, with its preference, as the Grays put it, for the ‘raw organic facts of human behaviour’ over grand or abstract theories.

But developing that perception, that particular way of seeing, requires patience

and it requires humility. It requires humility, because one must be prepared, as Creon ultimately was (albeit too late for him), to adjust our perception in light of the full picture, or as different aspects of that picture are pointed out to us by those around us. It requires patience, because it can take time – and the telling of many, many stories - for the picture to come fully into focus (as it did for the community of Thebes). And, ultimately, it requires a shared sense of humanity, in which all the individual human stories contribute to the larger human story.

These qualities were, and are, characteristic of the life and work of the Hon Robert French AC, and his unwavering commitment to listen to, observe, and reflect upon our national story over decades of public life.

We have indeed been, and continue to be, fortunate, as lawyers, judges and Australian citizens, to have the benefit of the vision born of that commitment.

Endnotes 1

2 3

4

5 6 7 8 9

10

11

12

French, ‘Voice of Reason Not Beyond Us’, The Australian, 31 July 2019 (https://www.theaustralian. com.au/commentary/voice-of-reason-not-beyond-us/ news- story/1e1715b36c7eeb49f3f1b98c3c377774).

Mabo v Queensland [No 2] (1992) 175 CLR 1, 29-30.

French, Law Making in a Representative Democracy: The Durability of Enduring Values (2017) 19 Flinders Law Journal 19, 23-24.

French, Law Making in a Representative Democracy: The Durability of Enduring Values (2017) 19 Flinders Law Journal 19, 24.

Dietrich v The Queen (1992) 177 CLR 292, 319.

Brennan, Lessons from a life in the law, Hal Wooten Lecture, 23 August 2012.

Western Australia v The Commonwealth (1995) 183 CLR 373, 485.

Yanner v Eaton (1999) 201 CLR 351, 373 [38].

K Gray and S F Gray, ‘The idea of Property in Land’, Bright and Dewar (eds) Land Law: Themes and Perspectives (1998) 15.

All quotes from Antigone are from Robert Fagles’ translation, published in The Three Theban Plays, Penguin Classics, 1982.

Stewart, Hegel’s Influence of Kierkegaard’s Interpretation of Antigone, 39 Persona & Derecho 195 (1998).

Howenstein, The Tragedy of Law and the Law of Tragedy in Sophocles’ Antigone, 24 Legal Stud. F 493 (2000).

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31

The Law Society’s Mock Trial Competition

By Guy Sebastian Varndell PLC Perth

Nothing is more terrifying than a judge with a sense of humour, especially when they’re interrupting your carefully prepared opening statement and Mum is watching from the back of the courtroom.

Is the joke about you? Should you laugh? Your opponent is as terrified at the trap as you are and can only look away… but this is the adrenaline upon which victories are made and if you can just bluff, smile politely and hold onto the sentence that was cruelly interrupted, you might live.

The Mock Trial Competition prepares students for a world beyond classroom terminology and doable rubrics by putting people into a problem. Success depends on more than just understanding the rules of evidence, preparing a case theory or knowing when to sit down. It requires the sort of insight into human nature and multiple perspectives that accompany real legal disputes and decisions; it requires critical thinking, and it requires collaboration.

Central to success in a mock trial is the maturity to respect each other’s manner and method of delivery. No individual can singlehandedly win or lose a trial and over the course of each season, each team finds its stride.

The initial ambition reflected in teams’ miniseries monikers (such as You Got Litt) is soon replaced with a genuine style and process as students grow together. The evolution of a case theory and decisions about how to execute this provide space for students to refine their approaches and, as the task is divided and strategies are laid, they learn to play the long game.

But a starting point for every team must always be the fundamentals; the rules of evidence, courtroom etiquette and ability to develop a case theory. These requirements challenge students but they are the knowable aspects that reward hard work and preparation. The structure of the Competition allows each team to build its understanding of legal principles and concepts in preparation for the Finals. The further the team progresses, the deeper its comprehension becomes. Few things are more

32 | BRIEF FEBRUARY 2020

gratifying for a coach than seeing their team move beyond the consciousness of jargon and gesture to a full engagement with the legal issues.

As a Politics and Law teacher and Mock Trial Competition coach, I have found the programme to be invaluable for refining students’ knowledge and understanding of the trial process and of legal concepts. Students are passionate about mock trials and the combination of creativity and established guidelines allows a depth of engagement unlike any other competition for school students in Western Australia. For some, it is the opportunity to embrace the courtroom setting and get a feel for future legal studies, while for others, participation is the culmination of years of teamwork in various public speaking competitions.

Apparently one should never chase after pretty girls, buses or the latest educational theory – there’ll always be another one along shortly. But some things are constant and can be relied on to impart knowledge to students.

Providing an opportunity for creativity and for students to respond to each other by bouncing ideas around over the course of a few weeks, against a backdrop of mentors and a hefty manual, is an effective measure for promoting genuine learning. The format of the Mock Trial Competition remains relevant from year to year because learning is driven by the students themselves. The case materials are designed to allow either side a victory, but it is the time spent in preparation that builds understanding.

What motivates students more than anything is that they can take the Competition seriously.

It gives them scope to engage as young adults and the pride and satisfaction that comes with winning a round is grounded in knowing it was hard-won.

Contemporary pedagogical approaches mean that students are accustomed to receiving feedback about their efforts. It is often difficult for students in the Mock Trial Competition to reconcile a win or loss in the absence of specific criticism or advice. Students desperately want to succeed and they hang on a judge’s every word, response and decision. A judge’s considered feedback at the conclusion of each trial is the single most valuable aspect of each round as this lays the groundwork for

future growth and success, irrespective of the outcome of any individual trial. It is what gives tangible direction for students to be better.

As a teacher I am incredibly grateful to everyone who gives their time so generously to the Mock Trial Competition, particularly the judges, even if it is sometimes like watching orcas hunting penguins. There is always that smug satisfaction when the penguin gets away and survives.

The Law Society is now taking registrations for volunteers for the 2020 Mock Trial Competition.

Previous participation is not required. An Information and Orientation Session will be held at the Law Society’s offices on Thursday, 27 February, from 5.15pm – 6.15pm.

Please contact us at: mocktrial@lawsocietywa.asn.au if you would like to register your interest in attending this event, and/or participating as a volunteer.

Taxing Matters

High Court Special Leave

By Clare Thompson Barrister, Francis Burt Chambers On 13 September 2019 the High Court refused special leave applications in two significant taxation cases.

Harding v Commissioner of Taxation [2019] FCAFC 29 is the most significant residency case in at least a decade.

Mr Harding, an aircraft engineer who was an Australian and British citizen contended that he was a resident of Bahrain for the 2011 tax year. He had lived for much of his adult life outside Australia but returned to Australia, where his wife and two children were living, in 2006. In 2009 Mr Harding relocated to Bahrain and worked in Saudi Arabia. It was the intention of Mr & Ms Harding that when his eldest son finished school in 2011, his wife and younger son would join him in Bahrain.

When he left Australia he sold his boat and car, he took his clothing and other personal possessions with him and his wife and sons lived in the family home in Australia.

He lived in a furnished apartment in Bahrain throughout the entire period but it was not intended to be the family home. Mr Harding’s intention was to move to a more suitable home once his family joined him. In 2011 his marriage broke down and his wife and sons did not join him in Bahrain. In 2014 Mr Harding divorced and in 2015 he moved to Oman.

At first instance the parties had proceeded on the basis that the question for the court was, in relation to section 6(a)(i) Income Tax Assessment Act 1936 (ITAA 1936), whether Mr Harding had a permanent place of abode outside Australia. On appeal, the Full Court found this was the wrong question and the task of the Court was to determine if the Commissioner had erred in being satisfied that Mr Harding did not have a permanent place of abode outside Australia. That is, this was an Avon Downs1 case so that the task of the Court was akin to judicial review, not merits review.

The final outcome turned on the meaning of “place of abode” in section 6(a)(i) ITAA 1936. The trial Judge had determined this referred to the actual apartment Mr Harding lived in in Bahrain, which was the Commissioner’s contention. The Full Court determined that in the legislative context in which it appears, being “the person’s permanent place of abode is outside Australia”, place of abode also referred to a town or country and Mr Harding’s place of abode was Bahrain, rather than the actual apartment he lived in. This represents a significant change in approach to the meaning of “place of abode” in the ITAA 1936 and is a broadening of the meaning of the phrase: a taxpayer does not need to have a permanent home for their abode to be in a particular country.

The Commissioner applied for special leave, which was refused. During the course of the hearing, Justice Gordon made the point that “to set the bar as requiring a specific permanent dwelling seems to me to be a contention which just is impractical, given the way in which we currently live”.

Commissioner of Taxation v Resource Capital Fund IV LP [2019] FCAFC 51 concerned the application of the double taxation treaty with the USA.

company, Talison Lithium Ltd which mined lithium at Greenbushes in Western Australia.

A corporate limited partnership is liable to income tax as if they were a company in Australia by reason of Division 5A ITAA 1936 so that the corporate limited partnership is the taxpayer with the right of objection under Part IVC Taxation Administration Act, not the individual partners of it.

A significant issue in the case was the question of where the profits were sourced given the corporate partnership was a resident of the Cayman Islands and the individual partners were USA residents. On the evidence substantial decision making in respect to the profitability of investments was made by directors of the mining companies in Australia who were appointed by the partnership. Hence the decision making was in Australia and the profits were derived here.

The Court also considered the application of the double tax treaty. In Australia the corporate limited partnership was the taxed entity, in the USA it was the individual partners. The Court found that the double tax treaty did not apply; the two countries taxed different entities. In part this result relied on RCF III LP v Commissioner of Taxation (2013) 95 ATR 504 in which the court had found that to take advantage of the double tax treaty the taxpayer had to demonstrate (a) that the partnership was a resident of the USA, and (b) that the income it was assessed on in Australia was income it was assessed on in the USA. In this case the partnership was a resident of the Cayman Islands and the income it derived was assessed in the USA in the hands of the individual partners, so neither of the treaty preconditions were met.

The court also considered the question of what constituted “mining” for the purposes of Division 855 Income Tax Assessment Act 1997. The court adopted a wide definition of mining including all the processes of turning the ore into concentrate and not merely the extraction of the ore from the ground. The definition of mining was of critical concern to the outcome under Division 855, which deals with the taxation of profits derived by non-residents in land rich investments in Australia.

The taxpayer’s unsuccessful special leave application sought to agitate issues arising from the Full Court’s construction of Division 855, which has not as yet been considered by the High Court. Special leave was refused on the basis that it was not a suitable vehicle for consideration of the Division 855 issues, which relates to a lack of evidence as to the specific terms of the mining leases at the centre of the dispute.

Given this, it is likely that the construction of Division 855 will continue to be the subject of debate for some time.

Otherwise the High Court said there was no reason to doubt the correctness of the decision of the Full Court.

Endnotes 1

Avon Downs v Commissioner of Taxation [1949] HCA 26, 78 CLR 353.

RCF IVLP was a limited partnership in the USA which derived income from the sale of shares in an Australian resource

33

CONTINUING PROFESSIONAL DEVELOPMENT CALENDAR FEBRUARY to MARCH 2020 Register for our seminars online at lawsocietywa.asn.au/cpd-seminars

FEBRUARY 2020 Friday, 7 February 1:00pm – 2:00pm

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Ethics on Friday: Ethics and Social Media

Magistrates Court Rule Changes to Practice and Procedure (Civil Division)

Practical Tips and Tricks for Enforcing Judgments

Wednesday, 19 February 1:00pm – 2:00pm

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Compensation and the NDIS

CPD 123 For You – Your Clients

Wednesday, 19 February 4:30pm – 5:30pm

Friday, 28 February 12:30pm – 2:00pm

Magistrates Court Rule Changes to Practice and Procedure (Civil Division)

Banking Royal Commission – The Aftermath

Friday, 21 February 12:30pm – 2:00pm

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Avoiding Burnout and Understanding Vicarious Trauma

Ethics on Friday: Cybersecurity – how to make your practice safer

Wednesday, 4 March 1:00pm – 2:00pm

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ASIC v Kobelt – a review of the High Court decision

From the Ground Up: Lawyers Involved in the Making of Cities

Plan, Position, Perform – Transforming Difficult Conversations into Positive Results

Wednesday, 11 March 9:00am – 12:15pm

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Succession Law Intensive

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Thursday, 12 March 1:00pm – 2:00pm

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Thursday, 12 March 1:00pm – 2:00pm

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Future Proofing your People and the Firm

Monday, 10 February 3:00pm – 6.15pm Family Law Masterclass Wednesday, 12 February 3:00pm – 5:00pm Drafting Wills Masterclass Thursday, 13 February 4:30pm – 6:00pm Contentious Business Determinations – 2020 Review: What’s in the mix?

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BOOK REVIEW

Griffith Review 65: Crimes and Punishments Reviewed by Thomas Camp, Solicitor, Inquiry into the City of Perth and Member, Brief Editorial Committee

The Griffith Review, as one of Australia’s premier literary journals, is already well read in legal circles. This edition is directly inspired by one of our theatres of influence. Griffith Review 65: Crimes and Punishments touches on stories of historical significance as well pressing legal issues such as Indigenous incarceration and child abuse in the family home while also offering pint-sized fiction and whimsical poetry.

It begins with Paul Condon’s memoir and Paul Williams’ essay. These both hark back to the Fitzgerald Inquiry which examined and touched on themes of unchecked lawlessness and police corruption in Queensland in the 1980s.

We are reminded how it revealed the cancer at the heart of the Queensland Police Force. Bill Wilkie’s reportage on his journey to Cedar Bay, the site of a shambolic police raid on an off-grid hippy paradise during those years, recalls the clash of conservative (and corrupt) Queensland with counterculture.

In the absence of proper oversight, the justice system can turn into a system of injustice which protects those who undermine it. The inaptronymic Gary Crooke warns us that we must be ever vigilant of creeping corruption in the public service if we seek to make sure the type of corruption seen in Queensland at that time doesn't arise again. This is made more poignant in Western Australia in light of recent scandals in various levels of government.

36 | BRIEF FEBRUARY 2020

Fiona Foley’s photo essay reveals her fight to bring discussions on the horrors of Australia’s Aboriginal history into modern Australian discourse. It explores Witnessing to Silence, her sculptural work set outside the Brisbane Magistrates Court. While putatively about floods and fires, the true meaning is a recognition of Aboriginal massacres.

The commission was accepted after the convenient omission of what truly lay behind it. This is an ironic and powerful response to an establishment which Foley sees as seeking to do the same to its dark past.

Sadly, but unsurprisingly, the continuing systematic disadvantage of Aboriginal people is fertile ground for this edition.

After reading the conversation between Behrouz Boochani and Omid Tofighian, where Tofighian links offshore detention with Australia’s history of colonial violence, one wonders what will flow from the long-term incarceration of people on Nauru and Manus.

But perhaps the most impacting read is Gideon Haigh’s in-depth extract This is How I Will Strangle You. While Haigh’s use of language is exceptional, this is not an easy read. Haigh recounts the life of Natasa Christidou, who was born into a mentally, physically and sexually abusive family. Her story is told in often horrific detail. The key question is asked by her lawyer, “How are you still alive?” Yet the reader is told of how she manages to deal with and occasionally thrive in spite of this past. It is not just an account of

failure of family, authority and society on a person, it is also the story of Natasa’s incredible resilience and the good that the legal system can do. It gives hope that institutions can be a powerful force for good. The key being the people within them.

Beyond this, Crimes and Punishments also includes some great short fiction such as Lucy Sussex’s Sin Room and Beejay Silcox’s Gun. Philip Dean’s whimsical poem Adjudged devises profession-appropriate punishments for tall poppies inspired by the Chronicles of Newgate, where it is written: William Spalyng, who, for selling putrid beef… was put upon the pillory, and the carcasses were burnt beneath.

Whether you fancy the thought provoking, the gripping, the playful or a bit of it all, there is something for every mood in this edition. It is a perfect companion for a trip or to be enjoyed slowly over a number of months.

Priority Ordering Gino Dal Pont Professor, Faculty of Law, University of Tasmania • It has long been understood that the lawyer’s duty to the administration of justice takes priority over the duty to the client.

• Occasions arise where the former duty is pitted against the latter, and there is client (or other) pressure to favour the latter.

• Succumbing to favouring client interests, however, is unprofessional and will be met by disciplinary sanction.

Perhaps the most challenging ethical issues arising in the lawyer-client relationship stems from the fact that lawyers are obliged to act in the best interests of clients while at the same time tempered by the duty to the administration of justice. The fact that the two do not always align requires giving priority of one of these duties, long understood being the latter. In other words, though trite to observe, there are instances where not only are lawyers justified in acting contrary to client interests, they must do so. Perhaps it is unsurprising that not all clients welcome their deprioritisation.

Whether because of potential client dissatisfaction, or some other reason, it seems that not all lawyers get this priority correct. Three 2019 disciplinary decisions highlight how a lawyer can fall into this trap. The most recent, facing the Western Australian Supreme Court in August of that year, involved a lawyer on a number of occasions testified that he did not want to be ‘accountable to two masters’. This Biblically sourced notion,1 which in the law informs aspects of (inter alia) fiduciary principle,2 on the facts in question spoke of the lawyer’s client and an opponent to whom the lawyer had given an undertaking.

The court saw this remark as ‘telling’, in revealing ‘a fundamental misunderstanding’ of the relationship between lawyer and client.3 This was because a lawyer’s client is not his or her ‘master’. Duties owed to clients must be understood, said their Honours, in the context of a lawyer’s need to ‘maintain professional independence and his or her paramount duty to the court and the administration of justice’.4 The ‘master’ mentality has the prospect of opening the door to unprofessional conduct. In the above case, it translated to breaching the undertaking and knowingly misleading the opposing lawyer. The ultimate disciplinary sanction, striking off, ensued.

In the second case, decided two months earlier, the tribunal cited the professional rule wherein a lawyer ‘must not act as the mere mouthpiece of the client’ but ‘must exercise the forensic judgments called for during the case independently’.6 While accepting that some clients ‘can be very demanding and choose to ignore sound advice’, on the facts — where the lawyer 5

Ethics Column had misled opposing lawyers and the court to secure an advantage for a client — the tribunal held that acquiescing to client demands in the circumstances ‘was completely inappropriate, no matter how overbearing the client’.7 It also accepted that the impact on a small practice of the potential loss of a significant client could be catastrophic, but that nor this did not excuse the lawyer’s conduct.

Though the tribunal, upon a finding of professional misconduct, confined its sanction to a reprimand and a fine, it countenanced that its order could be used in an essentially exemplary fashion (under the guise of general deterrence) ‘to mark the community’s disapproval of lapses from the high standard of conduct that are legitimately expected of legal practitioners’.8 This justified, it declared, a $7500 fine.

The month before, the same tribunal was confronted by a lawyer who had, in an attempt to foster a client’s interests, illegitimately sought to adduce evidence of settlement negotiations and made allegations of criminal offences against the other side.9 The lawyer explained her unprofessional conduct as attributable to ‘becoming too close and allowing her personal feelings to impact on her professional judgment’.10 The tribunal, though accepting that this closeness functioned to temporarily impair the undertaking of the lawyer’s duty in relation to the matter, responded that ‘the public is entitled to assume that solicitors will maintain professional standards of conduct even in stressful circumstances’.11 Hence, the lawyer’s explanation did not condone the conduct, which was characterised as professional misconduct. Similarly informed by the need to issue ‘an appropriate indication both to the profession and to the public of the seriousness of what occurred’,12 the tribunal imposed a $12,000 fine.

The above recent instances of lawyers who, with the object of assisting their clients, have been snared into unprofessional conduct highlights the importance, as challenging as this may sometimes prove, of maintaining a degree of independence from clients and their causes.

Endnotes 1 2 3 4 5 6

7 8 9 10 11 12

Matthew 6:24 (‘No man can serve two masters’).

Breen v Williams (1996) 186 CLR 71 at 108 per Gaudron and McHugh JJ. Legal Profession Complaints Committee v Oud [2019] WASC 287 at [28].

Ibid.

Legal Services Commissioner v Yakenain [2019] NSWCATOD 98 at [24].

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 17.1. In Western Australia see Legal Profession Conduct Rules 2010 (WA) r 32.

Legal Services Commissioner v Yakenain [2019] NSWCATOD 98 at [25].

Ibid at [29].

Council of the Law Society of New South Wales v Searle [2019] NSWCATOD 70.

Ibid at [58].

Ibid.

Ibid at [68].

37

HIGH COURT JUDGMENTS Andrew Yuile Owen Dixon Chambers West, Melbourne

Corporations law Financial assistance of company to acquire shares in the company Connective Services Pty Ltd v Slea Pty Ltd [2019] HCA 33 (9 October 2019) concerned the scope of s260A of the Corporations Act 2001 (Cth).

The appellant companies (Connective Companies) were incorporated in 2001.

The shareholders have relevantly been the first respondent (Slea Pty Ltd, (Slea)), the third respondent (Millsave Holdings Pty Ltd (Millsave)) and the fourth respondent (Mr Haron). The constitution of each Connective Company contained a preemption clause, requiring that before a shareholder could transfer shares of a particular class, those shares had to be offered to existing shareholders.

In 2009, the sole director and shareholder of Slea, Mr Tsialtas, entered into an agreement with the second respondent (Minerva Financial Group Pty Ltd (Minerva)) for the sale of Mr Tsialtas’s shares in Slea. A second agreement was made in 2010 between Mr Tsialtas, Slea and Minerva.

involved in the process of acquisition or if it improves the person’s ‘net balance of financial advantage’”. It extends beyond direct contributions to share price. In this case, bringing legal proceedings against Slea was a necessary step for the vindication of the pre-emption rights of Millsave and Mr Haron. The proceedings could have been brought by Millsave or Mr Haron. If that had been done, the provision of any financial assistance by the Connective Companies would have contravened s260A. Instead, the Connective Companies, in which Millsave and Mr Haron held 66.67 per cent of the shares, themselves commenced the proceedings, at the companies’ expense. That commencement was financial assistance to Millsave and Mr Haron. And the Connective Companies had not shown that there was no material prejudice to the Connective Companies or their shareholders. Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ jointly.

Appeal from the Court of Appeal (Vic) dismissed.

Criminal law

of Appeal dismissed an appeal, finding that the motive and opportunity evidence were sufficient and the evidence of the Mathesons could be taken as convincing proof of his link to the murder.

The High Court held that the crown case on motive and opportunity was extremely weak. The relevant window for the alleged murder was very small and required assumptions contradicted by other evidence. On motive, the appellant was in no different position to other residents of Macleay Island. Further, Mr Fennell’s gambling habits had not changed, but he was not in debt and ahead on mortgage repayments. A search of the appellant’s home found nothing to link him to the murder. None of his DNA or fingerprints were at the crime scene and he was excluded as a DNA contributor to a bag found with the hammer. Finally, the evidence of the Mathesons was glaringly improbable and should have been given such little weight that it was barely admissible.

In light of all of these matters, it was not open on the evidence for the jury to be satisfied of Mr Fennell’s guilt. Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ jointly. Appeal from Court of Appeal (Qld) allowed.

In 2016, the Connective Companies began proceedings against Slea and Minerva (also joining Millsave and Mr Haron), alleging that Slea intended to transfer its shares in the Connective Companies to Minerva without complying with the pre-emption provision. Slea and Minerva applied to have the proceedings dismissed or stayed.

Murder – case based on circumstantial evidence – unreasonable verdict

One form of relief sought was an injunction under s1324 of the Act, restraining the Connective Companies from prosecuting the pre-emption proceedings on the basis that the proceedings constituted a contravention of s260A of the Act. That provision prevents a company from providing financial assistance to a person to acquire shares in the company except if the assistance does not materially prejudice the interests of the company or its shareholders, or the company’s ability to pay its shareholders.

Mr Fennell was convicted of the murder of Ms Liselotte Watson in her home in a small community on Macleay Island. The Crown case was entirely circumstantial, relying on a window of opportunity and Mr Fennell’s access to Ms Watsons’ house; motive (he knew Ms Watson had cash in her house, he had been stealing from her to service gambling debts, and he didn’t want her to find this out); and other matters said to be inculpatory.

In Vella v Commissioner of Police (NSW) [2019] HCA 38 (6 November 2019) a majority of the High Court upheld the validity of s5(1) of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) (SCPO Act). Sections 5 and 6 of the SCPO Act empower the District Court or the Supreme Court of NSW to make “civil preventative orders” that can restrain the liberty of an individual, including without proof of the commission of an offence by that individual.

The most significant “other matter” was evidence from a Mr and Mrs Matheson purporting to identify a hammer that was the likely murder weapon as one they had given the appellant many years before. The jury convicted and the Court

The plaintiffs were the object of orders sought in the Supreme Court, seeking to restrain and prohibit them from associating with persons involved in Outlaw Motorcycle Gangs, attending the premises of such gangs, travelling in a

The High Court held that “Any action by the company can be financial assistance if it eases the financial burden that would be 38 | BRIEF FEBRUARY 2020

In Fennell v The Queen [2019] HCA 37 (Orders 11 September 2019; reasons 6 November 2019) the High Court quashed the appellant’s conviction on the basis that it was not open to the jury to be satisfied of his guilt.

Constitutional law Ch III – principles from Kable and Kirk – preventative control orders

vehicle in certain periods except in case of emergency, and possessing more than one mobile phone. Section 5 was challenged on the basis of the principles developed from Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 – incompatibility with the institutional integrity of the relevant Courts.

The majority identified six steps to be satisfied before power to make a preventative order was enlivened. The majority noted previous decisions of the Court holding that other preventative order regimes dealing with possible terrorist acts, sexual offenders and criminal acts do not infringe the Kable principles.

The majority held that the SCPO Act gives courts substantial judicial discretion in respect of making orders and their content. The Courts were not enlisted by the Executive. The challenge based on judicial power was contrary to history and prior authority. And there was nothing antithetical to the judicial process in open-textured legislation establishing broad principles to be developed and applied by courts. To the contrary, if such powers are to exist, it is desirable that they be exercised by courts with broad discretions. Bell, Keane, Nettle and Edelman JJ jointly; Kiefel CJ separately concurring; Gageler J and Gordon J each separately dissenting. Answers to Questions in Special Case given.

Proceeds of crime Forfeiture of tainted property – proceeds or instruments of offending – third party acquisition Lordianto v Commissioner of the Australian Federal Police; Kalimuthu v Commissioner of the Australian Federal Police [2019] HCA 39 (13 November 2019) both concerned whether money held in bank accounts had ceased to be the proceeds of crime or the instrument of an offence under s330(4)(a) of the Proceeds of Crime Act 2002 (Cth) (POCA).

The appellants were involved in a money laundering scheme known as “cuckoo smurfing”, in which a person offshore asks a remitter to transfer funds to Australia. The remitter withholds the money, while in Australia associates deposit money into the transferee’s account, in amounts beneath a reporting threshold of $10,000. In both cases, the Commissioner obtained orders under s19 of the POCA restraining the funds in bank accounts of the appellants, on the basis that they were the proceeds of crime or instruments of offending. The relevant offences were structuring offences

contrary to the Anti‑Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).

The appellants later sought to have excluded from the restraining order choses in action in respect of the bank accounts (being the entitlement to require the banks to pay out the money to the appellants’ credit in the accounts). The appellants in both cases conceded that the “property” had been the proceeds of crime or an instrument of offending, but argued that it had ceased to have that character. They argued that the property had been acquired by a third party for sufficient consideration, without the third party knowing that the property was the proceeds or instrument of an offence, pursuant to s330(4)(a) of the POCA. The High Court considered the proper interpretation of s330(4)(a), holding that the section must be read as a whole and not as a series of isolated elements.

Section 330(4)(a) provides a limited exclusion, in many cases similar to the inquiry about bona fide purchaser for value without notice. After considering the matters to be satisfied in s330(4)(b), the Court held – unanimously in respect of the appellant in the Lordianto appeal and the first appellant in the Kalimuthu appeal; and by majority in respect of the second appellant in the Kalimuthu appeal – that the appellants had failed to discharge the onus to meet the section’s requirements.

Kiefel CJ, Bell, Keane and Gordon JJ jointly; Edelman J separately concurring in respect of Lordianto and the first appellant in Kalimuthu, and dissenting in respect of the second appellant in Kalimuthu. Appeals from the Court of Appeal (NSW) and Court of Appeal (WA) dismissed.

Criminal law Crown appeal against sentence – procedural fairness – public interest immunity HT v The Queen [2019] HCA 40 (13 November 2019) concerned procedural fairness to an accused in circumstances where a confidential summary of assistance was provided to the Court but not to the accused on grounds of public interest immunity (PII).

The accused pleaded guilty to 11 counts of fraud each with maximum penalties of five or 10 years’ imprisonment. The offending was found to be very serious with a high level of moral culpability.

By s23(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), one matter the sentencing judge had to take into account was assistance given to law

enforcement. The accused was a registered informant and had provided significant assistance. Before the sentencing judge, the Crown gave the accused’s counsel a choice between producing a much shorter (inferentially less beneficial) document outlining the accused’s assistance that the accused could see, and a longer (inferentially more beneficial) statement that would be provided only to the Court. Counsel chose the latter. A confidential exhibit was given to the judge setting out the assistance.

The judge gave the accused a discount of 35 per cent of which 15 per cent was identified as for her guilty plea. She was sentenced to three years and six months’ imprisonment, with a non-parole period of 18 months.

The Crown appealed the sentence. On appeal, counsel for the accused sought access to the confidential exhibit. The Court of Appeal took the document into account but upheld a claim of PII over the exhibit made by the Police (supported by the Crown) to prevent access for the accused. The Court increased the discount for assistance to 40 per cent, but re-sentenced the accused to six years and six months’ imprisonment, with a non-parole period of three years and six months.

The High Court held unanimously that the accused had been denied procedural fairness in the Court of Appeal. By being denied access to the exhibit, she was denied a reasonable opportunity to be heard. PII did not justify the denial of procedural fairness. That doctrine, where it applies, excludes material from being admissible. Where necessary, orders can be tailored to meet the demands of sensitive evidence. However, PII does not allow for material to be admitted into evidence but kept confidential from an accused. No other sources of power sought to be relied on justified that position. Further, the Crown had an obligation to place all relevant material before the Court. Where sensitivities arose, tailored orders might be made.

In the circumstances, the Court set aside the orders of the Court of Appeal and reinstated the orders of the trial judge.

Kiefel CJ, Bell and Keane JJ jointly; Nettle and Edelman JJ jointly concurring; Gordon J separately concurring. Appeal from the Court of Criminal Appeal (NSW) allowed.

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

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

Corporations law False, misleading or deceptive conduct – contraventions of s1041H of the Corporations Act 2001 (Cth) and ss12DA(1) and 12DB(1)(i) of the Australian Securities and Investments Commission Act 2001 (Cth) In Australian Securities and Investment Commission v Dover Financial Advisers Pty Ltd [2019] FCA 1932 (22 November 2019) the Court found for the regulator (ASIC) in its case against a financial services advice business (Dover) alleging that its “Client Protection Policy” was “misleading or deceptive” or “likely to mislead or deceive” within the meaning of s1041H of the Corporations Act 2001 (Cth) (Corporations Act) and s12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and a “false or misleading representation” within the meaning of s12DB(1)(i) of the ASIC Act (at [115]).

Central to the case was the introductory clause to the Client Protection Policy which stated: “Dover’s Client Protection Policy sets out a number of important consumer protections designed to ensure every Dover client gets the best possible advice and the maximum protection available under the law . . .”

O’Bryan J summarised his decision at [3]: “. . . the title of that document was highly misleading and an exercise in Orwellian doublespeak. The document did not protect clients. To the contrary, it purported to strip clients of rights and consumer protections they enjoyed under the law. Some 19,402 clients of Dover’s authorised representatives were provided with the Client Protection Policy in conjunction with a statement of advice”.

The judgment contains a convenient recent summary of the applicable principles concerning the statutory prohibition of misleading or deceptive conduct (and closely related prohibitions) in the Australian Consumer Law, the Corporations Act and the ASIC Act (at [98]-[101]).

Practice and procedure Requirements in preliminary discovery application 40 | BRIEF FEBRUARY 2020

In Gold Coast Marine Aquaculture Pty Ltd v HTC Trading Pty Ltd [2019] FCA 1995 (27 November 2019) the Court granted the applicant’s application for preliminary discovery pursuant to Rule 7.23 of the Federal Court Rules 2011, which concerns discovery from a prospective respondent, against the respondent and a commonwealth department.

There are three elements to rule 7.23, namely: (1) a reasonable belief that it may have right to obtain relief from the prospective respondent (7.23(1)(a)) (2) after making reasonable inquiries, it does not have sufficient information to decide whether to start a proceeding (7.23(1) (b)) and (3) a belief that the prospective respondent has relevant documents that would assist (7.23(1)(c)). The Court relied on the scope and operation of Rule 7.23 as explained in Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193; 257 FCR 62. At [30], Anastassiou J adopted what Allsop CJ stated in Pfizer at [121], namely: “In practice, to defeat a claim for preliminary discovery it will be necessary either to show that the subjectively held belief does not exist or, if it does, that there is no reasonable basis for thinking that there may be (not is) such a case. Showing that some aspect of the material on which the belief is based is contestable, or even arguably wrong, will rarely come close to making good such a contention. Many views may be held with which one disagrees, perhaps even strongly, but this does not make such a view one which is necessarily unreasonably held . . .”

Costs Costs in preliminary discovery application In Autosports Castle Hill Pty Ltd v Altitude Brighton Pty Ltd [2019] FCA 2065 (9 December 2019), one day before the hearing of an application for preliminary discovery pursuant to Rule 7.23 of the Federal Court Rules 2011, the respondent agreed to provide the discovery sought. Yates J noted that the Court’s jurisdiction to order preliminary

discovery is an extraordinary one and that a successful prospective applicant has no automatic entitlement to an award of costs in its favour (at [21]).

However, in the circumstances, the Court concluded that a costs orders should be made in favour of the applicant against the respondent (at [22]).

Evidence Privileges against self-incrimination and against exposure to penalties in relation to discovery by a one-person company In Meneses v Directed Electronics OE Pty Ltd [2019] FCAFC 190 (1 November 2019) the Full Court considered a claim by the sole director and shareholder of a company that he is entitled to invoke the privilege against self-incrimination and the privilege against self-exposure to penalties (the penalty privilege) to resist an order for production of documents.

The underlying proceeding was brought by Directed Electronics OE Pty Ltd (Directed OE) against a number of respondents. Directed OE is an Australian automotive electronics developer and supplier. In summary, Directed OE alleged that Mr Meneses dishonestly arranged for his own company, OE Solutions Pty Ltd (OE Solutions), to be an intermediary in the supply of goods by another party to Directed OE, and dishonestly charged marked-up prices to Directed OE. There are many causes of action alleged against OE Solutions and Mr Meneses (the Meneses parties). The claims include breaches by Mr Meneses of duties under ss182 and 183 of the Corporations Act 2001 (Cth), which are civil penalty provisions: s1317E. On the ex parte application of Directed OE, the docket judge made a search order as authorised by Division 7.5 of the Federal Court Rules 2011 (Cth) directed to various persons, including Mr Meneses and OE Solutions. The order made specific provision for the preservation of claims to privilege against self-incrimination and the penalty privilege. In accordance with the process that followed execution of

the search order, the Meneses parties made discovery by filing a joint list of documents verified by an affidavit of Mr Meneses in which the Meneses parties objected to production of numerous documents on the grounds of privilege against self-incrimination and the penalty privilege. Directed OE challenged those claims for privilege. A separate judge heard that dispute and held that the Meneses parties’ claims to privilege should be refused. This was the subject of the application for leave to appeal.

The Court explained the commonalities and differences between the privilege against self-incrimination and the penalty privilege (at [84]-[90]). By operation of s187 of the Evidence Act 1995 (Cth), which reflects the Australian common law, both privileges are not available to corporations that are called on to produce documents in proceedings in the Court (at [91]). The Full Court discussed at length cases addressing the complexities that arise in relation to one-person companies (at [92]-[120]) including the United States authorities, some of which have been referred to by the High Court (at [121]-[148]).

The Court granted leave to appeal and held that the appeal should be allowed. The errors of the primary judge included ordering an individual who is himself or herself at risk of prosecution or the institution of proceedings for a civil penalty to produce the relevant documents on behalf of a company.

Insofar as the US cases suggested that an act of production by a director of a company is merely an act as agent for the company, the Full Court said those cases do not reflect Australian law (at [152]).

However, an order for production can still be made against a one-person company.

Moshinsky, Wheelahan and Abraham JJ explained at [153]: “This is not to say that an order for production cannot be made against OE Solutions (assuming that there are relevant documents in its control). The privilege against selfincrimination and the penalty privilege are available only to natural persons and not to corporations. Thus, OE Solutions cannot rely on the privileges to resist production of documents that are in its control. As the privileges are against self-incrimination and self-exposure to penalties (see [90] above), OE Solutions cannot resist production on the basis that production of documents by the company would expose Mr Meneses to a real and appreciable risk of prosecution or institution of proceedings for a civil penalty. Nor can Mr Meneses complain about the production of documents

by OE Solutions on the ground that the production of documents by the company might incriminate him or expose him to a penalty. However, in circumstances where OE Solutions is essentially a one-person company and that person (Mr Meneses) is entitled to rely on the privileges to resist production of the documents, it is necessary to consider mechanisms by

which OE Solutions could produce the documents (other than by Mr Meneses doing so on its behalf). These mechanisms include the appointment of a receiver of the company for the purposes of producing the relevant documents on behalf of the company: see Ronen at [79] per Spigelman CJ; Re Australian Property Custodian Holdings at [159] per Robson J. We consider that a receiver could be appointed by the Court in circumstances such as this pursuant to the power conferred by s57 of the Federal Court of Australia Act 1976 (Cth): see also s23 of the Federal Court of Australia Act and see, generally, The University of Western Australia v Gray (No 6) [2006] FCA 1825 at [64]-[66], [71]-[74] per French J (as his Honour then was). It is important and necessary that such a mechanism exist; otherwise, a one-person company such as OE Solutions would be effectively immune from producing documents in its control notwithstanding that it is not entitled to claim the privilege against self-incrimination or the penalty privilege”.

The trial in the underlying proceeding commenced on 9 December 2019.

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

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

Property – Contributions can continue during separations – Rise in value of property resumed by government In Whiton & Dagne [2019] FamCAFC 192 (31 October 2019) the Full Court (Aldridge, Kent & Tree JJ) allowed Ms Whiton’s appeal against a property division of 75:25 in favour of her de facto partner. An 18 year relationship with 20 separations meant a 12 year cohabitation in total. At first instance a judge of the FCC found proved the wife’s allegation that the separations were due to domestic violence by the respondent.

It was also found that the appellant “bore the major share of responsibility as a homemaker and parent for the parties’ children throughout the relationship” ([12]) and that the respondent should be credited with an initial contribution of a property at “Suburb B”. Its proceeds of sale of $160,000 five years later were used towards the purchase of a property at “Suburb C” for $258,000 which was resumed by the State Government 11 years later for $2,336,288.

On appeal by the wife, the Full Court said (from [13]): “( … ) [I]t appears the trial judge equated each separation with the de facto relationship having then ended, for the purpose of assessing contributions. ( … ) [18] … [C]ommencing in mid 1999 with the birth of the parties’ first child and continuing … with the birth of [their] second child in late 2000 the wife maintained her contribution as the primary homemaker and parent … irrespective of any … separation …

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[19] … [T]he wife maintained external employment for much of the … relationship and provided financial support to the family and to the children ( …)

[25] The approach adopted by the trial judge was wrong in law. …”

The Full Court said ([30]): “The Suburb B property … were …contributed to by the wife in both a financial sense, given her employment, and the payments towards the … mortgage, and by her nonfinancial contributions … Thus, the trial judge was clearly wrong to treat the $160,000 as solely the husband’s contribution and … to find that the wife made no contribution to the acquisition of the Suburb C property.”

The Full Court added ([34]), citing Zappacosta [[1976] FamCA 56, that “it is well settled … that a … rise in property value brought about by a rezoning or resumption is properly treated as a windfall gain for which neither party can take sole credit”.

Property – Interim dollar-fordollar order granted to wife was ineffectual as husband’s solicitors carried their costs In Shelbourne [2019] FamCAFC 196 (4 November 2019) Loughnan J had made a dollar-for-dollar order three months before the trial by which the husband was to pay to the wife’s solicitor a sum equal to any amount he paid to his solicitor. The husband did not pay his lawyers any amount, so the amount paid to the wife’s lawyers was also nil. In the absence of payment the parties’ unpaid legal fees ballooned by the time of

trial to $152,000 (the husband) and $264,000 (the wife).

At the final hearing Gill J granted the wife’s application for a continuation of the dollar-for-dollar order so as to secure payment of costs paid by the husband post-trial. The Full Court (Ainslie-Wallace, Ryan & Tree JJ) allowed the husband’s appeal, saying (from [17]): “( … ) The source of power to make a litigation funding order includes s 74 … (by way of interim spouse maintenance), s 79 and s 80 … (interim property division) and s 117 … (interim costs order) … Different considerations will apply depending upon which head of power is sought to be engaged (…)

[21] Plainly in making order 18 the primary judge was exercising discretion under s 117 … That discretion must be exercised by reference to … s 117(2A) … There is no advertence to those considerations in the primary judge’s reasons, and indeed the path of reasoning by which his Honour proceeded cannot be adequately discerned … save that his Honour was of the stated view that not extending the operation of the dollar-fordollar order ‘would defeat’ it …

It therefore follows that either his Honour did not have regard to the matters in s 117(2A) … or … did not sufficiently expose his reasoning as to how he … weighed the matters referred to in the provision. ( … ) [25] … The appellant correctly identifies that the effect of [the final dollar-for-dollar order] was to create an additional

liability of the husband in the sum of $152,000, together with a corresponding asset … for the wife. That asset and liability were not extant at the time of trial, but only arose in consequence of order 18. The authorities are clear that any litigation funding order needs to be taken into account in determining the final property adjustment … The impact of order 18 ought therefore to have been taken into account … in the division of … property.”

Property – Add-back of postseparation livestock sale proceeds in error where husband habitually relied on them In Cabadas [2019] FamCAFC 179 (11 October 2019) Kent J, sitting in the appellate jurisdiction of the Family Court of Australia, heard the husband’s appeal against an equal division made by a judge of the FCC of a $901,078 asset pool which included a notional $130,176 received by the husband from the sale of livestock over the previous five years.

Kent J said (at [17]): “ … [There is a] fundamental ... error of notionally adding back sums of money that may have been available to a party postseparation, as a notional asset, without any necessary finding to support that approach.

Here, it can be seen that the trial judge took no account of the husband’s longstanding dependence upon income from livestock sales for his livelihood which continued in the post-separation period; nor did his Honour have any regard to likely business expenses or expenditure offsetting the gross livestock sales income over a five year period between the first recorded sale in August 2013 and trial in August 2018. In short, his Honour gave no consideration to the fact that reasonably

incurred expenditure by the husband, either for his own living expenses and support or for business expenses to maintain the livestock/business operation, had to be taken into account as an offset to the gross amount of livestock sales income produced over a period of some five years.”

The appeal was allowed, discretion re-exercised and the adjusted pool (absent any notional add back) divided equally.

Property – Wife’s application for financial orders permanently stayed as she failed to contest divorce proceedings in Dubai In Bant & Clayton (No. 2) [2019] FamCAFC 200 (7 November 2019) the parties married in the United Arab Emirates (“UAE”) and lived there and in Australia. Upon separation the husband was granted a divorce order in the UAE which was unopposed by the wife. The wife later applied for property and maintenance orders in Australia. At the hearing Hogan J held that UAE law did not permit an adjustment of property interests so the UAE divorce did not prevent the wife’s application in Australia.

On the husband’s appeal, the Full Court (Strickland, Ainslie-Wallace & Ryan JJ) said (from [6]): “Although the wife was notified of those proceedings and had lawyers acting … for her in Dubai, she did not appear … and orders were made on the husband’s application in … 2015. The orders granted the husband a divorce and … had the effect of bringing to an end the wife’s rights to seek property orders under the law of Dubai. No appeal was brought …

[8] … [H]er Honour correctly identified … that for a claim of res judicata estoppel to be made out it is necessary for the Court to be satisfied that in prior proceedings a court … over

the same subject matter and … parties has by … order … finally … determined the same cause of action ( … ) [13] The thrust of the challenge to her Honour’s order is that she erred in concluding that the law of Dubai did not allow for redistribution of the parties’ assets, thus concluding erroneously that the Dubai proceedings left open the … adjustment of property interests … in the Australian proceedings.”

The Full Court ([14]) recited the relevant law of Dubai which, although not analogous to s 79, did provide that “a woman … is free to dispose of her property and … [that if one spouse] participates with the other in the development of a property … he may claim from the latter his share therein upon divorce or death” with a right to alimony too ([37]). In allowing the appeal, the Full Court ([22]) cited Taylor v Hollard (1902) 1 KB 676 where it was said that “the fact that a party in local proceedings may receive more or less than the foreign proceedings does not prevent a cause of action in estoppel arising”, adding ([23][24]): “The doctrine explicitly embraces national differences … and the fact that different law will be applied in the two jurisdictions does not detract from the identity of the cause of action …

The application of the doctrine has been extended to circumstances where a party who might be expected to raise a claim in the proceedings does not. [Henderson [1843] EngR 917 cited] ( … )”

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.

43

The Tale of the Defamed Drover

By John McKechnie QC

When stuck behind a slow-moving, smelly semi-trailer full of cattle or sheep making their way to the port, instead of fuming about the live animal trade, pro and con, why not calm yourself by retreating back to a gentler time when animals were droved not driven.

Even though the vast majority of us have always been city dwellers, there is a part of us, like A B (Banjo) Paterson who still dream "And I somehow fancy that I'd like to change with Clancy, Like to take a turn at droving where the seasons come and go".1 And this brings us to the tale of the defamed drover.

Mr Blood was a drover by trade and was engaged by Mr Matheson to drive a large flock of sheep from Quorn in South Australia, to Leigh Creek, 220km to the North.

The route taken by Mr Blood and his flock passed through Hawker, about 60km from Quorn.

As Matheson's sheep were being driven through Hawker, some sheep belonging to a local butcher named Leopold got mixed with them. The boy who shepherded Leopold's sheep swore Mr Blood tried to prevent this mixing, and after it happened tried to get Leopold's sheep out of the big flock. In this he did not succeed, and all the sheep were driven away together; and Leopold, who was told of the occurrence, made no effort to recover his sheep. Mr Blood said that only five strange sheep got mixed with his at Hawker; and he told Matheson this and delivered that number directly he reached his destination. Three of Matheson's sheep were left at Hawker, which were lost there when the mixing took place.

Now of course, Mr Blood could not really tell one sheep from another (have you ever tried?) and so he continued on with the butcher's sheep.

Worse was to come. Two lambs owned by the local constable, Barlow by name, went missing also. One turned up in Mr Blood's flock when he set camp just outside Hawker at Mern Merna.

Constable Barlow, incensed by the loss of his lambs, no doubt fattening nicely, wrote to Mr Matheson: On the 18th and 19th a flock of sheep passed through Hawker; I believe they were your property.

Anyhow, the drover left them here, and probably, did the same elsewhere; and to make the count right, he has got away with a few belonging to different owners. I suppose he knew there would be little chance of your noticing it at the count.

To this letter Matheson replied, asking for further information, and saying that he had told Mr Blood that he would never employ him again if the charges were found to be correct. Constable Barlow replied: "Mrs Grundy

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says that some of the pick and shovel men not a hundred miles off the railway line had some cheap mutton lately."

The same letter asserted: "Neither do I care to express my opinion on paper as to the honesty of your drover."

Now drovers might sometimes write letters 'with a thumbnail dipped in tar' but they are as fearsome protecting their reputation as any other folk.

This even though the enlargement of a herd while driving through towns and across paddocks was not exactly unknown.

So it was that Mr Blood, the drover, sued Mr Barlow, the Constable, for libel.

The matter was tried by a Magistrate and Justices who found for Constable Barlow.

Mr Blood appealed.

In the full court, Gordon J found for Mr Blood. Constable Barlow had pleaded that he acted within the scope of his duty. Gordon J would have none of it.

But the privilege does not extend to defamatory expressions wholly unwarranted by the circumstances which have come to the knowledge of the officer; and if such expressions are used the law imputes malice and the privilege is gone.

The laws of defamation are complex and confusing even to experienced practitioners in the field. Our modern Supreme Court judgment database is replete with the difficulties of mounting a coherent plea.

Things then do not seem to have changed much in 100 years.

Constable Barlow (or his lawyer) had not raised a plea of justification. Therefore, the Magistrate erred in his directions to the Justices because the truth of the libel was not in issue.

So Mr Blood was entitled to damages for the loss of character and of employment which he had clearly suffered.

And one hopes that after a while "as the stock are slowly stringing Blood rides behind them singing for the drover's life has pleasures that the townsfolk never know".

Adapted from Blood v Barlow (1907) SACR 136 1 'Clancy of the Overflow', AB Paterson.

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Law Council Update

Australian legal profession support for bushfire victims Australian lawyers are continuing to support bushfire victims as the crisis across Australia continues into 2020, the Law Council has said.

In her first statement as President, Law Council of Australia President, Pauline Wright, offered her sympathy and best wishes to those directly affected by the fires.

“I can only imagine how difficult it would be struggling with the loss of loved ones, your home, your business, your farm, or your animals,” Ms Wright said.

Ms Wright commended the support being offered to victims of the bushfires across the nations through referral services offered by law societies and bar associations, legal aid organisations, and community legal associations.

“The bushfires, sadly, are now having a devastating impact in every state in Australia,” Ms Wright said.

“As a profession, we are uniquely placed to support victims as they require legal advice, and every lawyer should consider pro bono aid for those affected.”

“It’s heartening to see that so many individuals in the profession have stepped up with offers of pro bono assistance,” Ms Wright said.

Victims of the bushfire can seek assistance by contacting the law societies and bar associations in their state or territory and legal aid services may be contacted via nationallegalaid.org. Community legal associations are available through clcs.org. au and Law Access NSW and WA may be contacted at lawaccess.nsw.gov.au and lawaccess.org.au.

For other ways to support the fire services or those directly affected by the fires, you can check the official RFS website.

Law Council calls for Australian Government to intervene to support ‘Nauru 19’ The Law Council of Australia has called on the Australian Government to urgently seek pardons for the MPs and their supporters known as the Nauru 19.

Law Council President, Arthur Moses SC, said the sentencing in Nauru on Thursday of twelve of the Nauru 19 was a blow to the democratic ambitions and institutions on Nauru.

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“The conviction and sentencing of the Nauru 19 has been an affront to the rule of law. It is a stain on their justice system,” Mr Moses SC said.

Law Council President Arthur Moses SC said crowdfunding can be a useful tool to provide access to justice but it is not without significant risks.

“This brings into disrepute the administration of justice and there is no doubt that in the circumstances of this case that the Nauru Government has denied these individuals the right to a fair trial.”

“Crowdfunding is not inherently unethical.

The crowdfunding of legal expenses has developed as a means to provide access to the courts and legal redress, particularly as the public funding of legal aid has been restricted by successive governments,” Mr Moses SC said.

“There is no doubt that the sovereignty of Nauru has to be respected, but that does not mean that Australia, as a leader in the Pacific walks away from its role in placing a country such as Nauru under scrutiny when it violates each international obligations in relation to the protection of the right of a citizen to a fair trial and the right to legal representation.”

In June 2015, 19 Nauru opposition MPs and their supporters – known as the Nauru 19 – were charged after a protest outside Nauru’s parliament on budget day. Last year, former Australian judge Geoffrey Muecke granted a permanent stay in the proceedings finding the defendants were being persecuted, denied a fair trial, denied legal representation and deprived of work and resources under a government "blacklist".

But he was then sacked by the Nauru Government and his decision overturned by the newly created Nauruan Court of Appeal. In a trial before former Fijian Chief Justice Daniel Fatiaki the Nauru 19 were found guilty. The leader of the Nauru 19 and former President Sprent Dabwido died after it was reported that he was denied medical treatment on Nauru for a very treatable cancer.

Mr Moses SC called upon the Australian Government to intervene.

“As a significant aid donor to Nauru and a leader in the Pacific, the Australian Government has a moral responsibility to condemn the manner in which this trial was conducted. The Morrison Government should request the President of Nauru, Lionel Aingimea, immediately pardon those sentenced,” Mr Moses SC said.

Lawyers to warn clients of risks of crowdfunding Lawyers have been warned to be aware of the risks of crowdfunding and the professional and ethical issues they need to consider when navigating this complex issue with clients.

To assist the legal profession deal with the emerging use of crowdfunding in litigation the Law Council of Australia has released guidance for legal practitioners.

“However, like anything, the crowdfunding of legal expenses needs to be managed so that it is not misused. This involves striking a balance. Regulation that is too restrictive could have a dampening effect on access to justice.”

Mr Moses SC said the Law Council had developed a Guidance Note for Australian Legal Practitioners that promotes an ethical approach to crowdfunding rather than limiting access.

The Guidance Note reminds practitioners to be mindful that their conduct in relation to crowdfunding does not discredit the profession.

“Lawyers have ethical and professional obligations to which they must adhere when engaging in legal practice. These ethical obligations have formed the foundation for the Guidance Note,” Mr Moses SC said.

“The Guidance Note does not dictate how clients should use their funds, it merely outlines relevant regulatory and ethical frameworks and how crowdfunding of legal expenses fits into those frameworks.” In providing advice to clients, lawyers should tell clients about: •

the applicable regulations specific to the crowdfunding model to be used;

•

any other applicable legislation or regulations;

•

the consequences of disclosing information about the case — including privilege/waiver of privilege, the law of confidential information, and the requirement not to disclose information provided by another party under compulsion; and

•

the risks and ramifications of making misrepresentations when seeking crowdfunding.

Practitioners should also address with clients how funds should be managed. This includes any surpluses and what happens if insufficient funds are raised, and the possibility and impact of adverse costs orders.

Professional Announcements Career moves and changes in the profession

O’Sullivan Davies Lawyers

Pragma Lawyers

O’Sullivan Davies Lawyers has named Nicola Watts as a new partner.

Pragma Lawyers has appointed Elizabeth McLean as Special Counsel.

Ms Watts, who has been practising family law for over 25 years in Tasmania, Victoria and Western Australia, joined O’Sullivan Davies in July 2018.

Elizabeth, known to most people as Libbi, is a senior specialist employment lawyer recognised by Doyles Guide as a rising star in the area of workplace relations law.

Ms Watts is Western Australia’s only representative on the Family Law Section of the Law Council of Nicola Watts Australia (FLS) and in that role is a representative on WA’s Family Law Practitioners Association (FLPA) committee and on the Board of the Australian Institute of Family Law Mediators and Arbitrators (AIFLAM). She also sits on the Ethics Committee of the Law Society of Western Australia and on the Legal Aid Review Board.

Libbi graduated from the University of Western Australia with a Bachelor of Laws and Bachelor of Arts and Elizabeth McLean was admitted to practice in Western Australia in 2010.

Ms Watts is the Chair of the Organising Committee for the Family Law Section’s biannual conference that will take place in Perth in October 2022. The 20th National Conference is expected to attract up to 900 family lawyers to Perth.

In 2016, Libbi took a senior management position running the Legal and Workplace Relations Department of a large industry association. During her time there she provided employment law advice to hospitality employers ranging from small businesses to five star international hotels. She provides advice in respect of all matters across employment law, industrial relations, human resources and occupational health and safety. Providing both front and back end employment advice, Libbi assists her clients to prevent small workplace issues from becoming big problems.

LETTER TO THE EDITOR anyone may embellish his/her name with a title;

“Titles are shadows, crowns are empty things”– Daniel Defoe The LPB has voiced unease on the promiscuous use of the titles “Senior Legal Counsel” and “Special Counsel”.

Is it wise to acquiesce in the use of such titles and encourage their perpetuation?

The late Rt. Hon Lord Denning in an unrelated context said: “At first a trickle, then a stream, last a flood”.

The profession is well counselled to pause and reflect on the arbitrary use of unendorsed appellations. Why do we hanker for this glory and veneration, why this propensity to crown oneself, this urge for self-aggrandisement, this yearning for precedence over lesser legal mortals – for what purpose and to what end?

I implore restraint. There are candid reasons for discouraging this vogue: •

•

it does not assist in the administration of justice. Indeed, quite the converse; without an objective benchmark,

•

it is contrary to the paramount public interest (a titled apparition leads one to presume that it is conferred in recognition of exceptional credentials, justifying reverence, but unveiled, it is meaningless and an applique);

•

the use of the titles can lead the public to deduce that the endorsement was impartially bestowed and that the titleholder sits deservedly within a hierarchical status in the profession;

•

there is neither a public nor a professional need for the titles;

•

it diminishes the reputed and established appointments of Queen’s Counsel and Senior Counsel and attempts to raise oneself in stature and standing to match them.

to transform the humble caterpillar into a regal butterfly. The fashion is uncomfortable. It exposes the profession to exsibilation.

Shall we cease and desist – and halt the flood?

20 January 2020 Sukhwant Singh Magister Legal

The adornment of unsanctioned titles may be perceived as an endeavour

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Classifieds

Missing Will

Missing Will

Missing Will

Any person holding or knowing the whereabouts of the last Will and Testament of the late KATHLEEN MARY BOX of 15B Hannah Court, Duncraig WA 6023, died on 28 AUGUST 2019, please contact FourLion Legal at Ground Floor, 12 St Georges Terrace Perth WA on (08) 9335 6643 or lstrydom@fourlionlegal.com.au within 1 month of the date of publication of this advertisement quoting ref: 191202.

Would any person or firm holding or knowing the existence or whereabouts of a Will or other testamentary document of GIOVANNI CARMINE MACALUSO, 1 September 1934, late of 16 Tarrawan Road, Armadale, Western Australia, who was found deceased on 15 July 2019, please contact Joss Legal at Address: Suite 1.6, Level 1, 9 Bowman St, South Perth, WA 6151 Tel: (08) 6559 7480 Email: lawyers@josslegal.com.au

Would any lawyer knowing the existence or whereabouts of a will made by SIMON COLIN ARMISHAW of 125/1217 Hay Street, West Perth, who died on or about 7th August 2018, Please contact Stephen Slade, Suburban Law, Christchurch, New Zealand. Email: stephenslade@suburbanlaw.co.nz Phone: +64 3 331 8016 Post: PO Box 28 069, Christchurch, New Zealand 8242

ATHERTON TABLELANDS $200K, PLUS WIP Family, Conv, W/Estates, Crim/Traffic, Mediation Established 1995; Two year average: Gross $482,500, Net $229,000 Lease 18 months Plus 3 year option Office Old Queenslander

BRIEF For advertising opportunities in Brief please contact:

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

Call 0418 180 543 or email qldlawsale@gmail.com www.daniellehodgens.com

New Members New members joining the Law Society (December 2019) Ordinary Membership

Associate Membership

Ms Ning Dong Jackson McDonald

Miss Olivia Bamess Murdoch University - School of Law

Mr James Jackson Perrella Legal

Ms Sophia Davis The University of Western Australia - Law Faculty

Restricted Practitioner Ms Bidinia Campbell-McPherson Bennett & Co Miss Emma Lawton Taylor Smart Miss Isabel McElhinney Johnson Winter & Slattery Miss Jess Smith Birman & Ride

48 | BRIEF FEBRUARY 2020

Mr Matthew Fraser Murdoch University - School of Law Miss Jessie Lee Hotchkin Hanly Lawyers Miss Sinead Spencer Bennett & Co Mr Adam Taylor Hotchkin Hanly Lawyers Ms Amanda Thompson Murdoch University - School of Law

Events Calendar

With thanks to our CPD partner

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

FEBRUARY 2020

MARCH 2020

Membership Events

Membership Events

Friday, 21 February YLC Beach Volleyball

Thursday, 5 March YLC Rebrand Sundowner

Thursday, 27 February Society Sundowner

Thursday, 26 March Welcome to the Profession Breakfast

APRIL 2020 Membership Events Saturday, 4 April District Court 50th Anniversary Black Tie Gala Dinner Thursday, 30 April YLC Ethical Pursuit – The CPD Game Show for Lawyers, hosted by Julian Morrow

SAVE THE DATE Law Week 2020 A FOCUS ON LAW AND JUSTICE IN THE COMMUNITY 18 to 22 May 2020 For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8640.

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

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

49

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