Brief March 2020

VOLUME 47 | NUMBER 2 | MARCH 2020

WA Legal Profession Shows Support for Bushfire Relief Also inside...

Climate Change Law, Policy and Action in Australia: The Past, the Present and the Uncertain Future The Equitable Briefing Policy Three Years On Julia Gillard on Law and Life After Politics Welcoming Ceremony for Judge David Maclean and Judge Charlotte Wallace

Volume 47 | Number 2 | March 2020

08

CONTENTS

06

FOLLOW US lawsocietywa.asn.au LawSocietyWA @LawSocietyWA

25

32

ARTICLES 06

WA Legal Profession Shows Support for Bushfire Relief

28

New Award to Recognise Pro Bono Work by Legal Firms

08

UWA and Law Society CPD Lecture on Climate Change – Opening Remarks

30

Looking to the Future: Where Next for Law Reform?

31

Profiles in Law: Peter Dawson

Climate Change Law, Policy and Action in Australia: The Past, Present and Uncertain Future

34

Property Rights and Just Terms Compensation

35

More Changes for Insurance in Super

42

Memories of London and Lord Denning

12

14

Welcoming Ceremony for Judge David MacLean and Judge Charlotte Wallace

23

The Equitable Briefing Policy Three Years On

25

Phoenix Rising: Julia Gillard on Law and Life After Politics

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

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

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

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

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

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

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

REGULARS 02

President's Report

04

Editor's Opinion

32

A Matter of Trust: Life Since Richstar

President: Nicholas van Hattem

44

Quirky Cases: The Tale of the Missing Brooch, That Wasn’t

Senior Vice President: Jocelyne Boujos

45

Cartoon

46

Law Council Update

Ordinary Members: Rebecca Bunney, Daniel Coster, Nathan Ebbs, Ante Golem, Mark Hemery, Matthew Howard SC, Craig Slater, Brooke Sojan, Shayla Strapps, Paula Wilkinson

36

Federal Court Judgments

47

Professional Announcements

38

High Court Judgments

47

New Members

40

Family Law Case Notes

47

Classifieds

43

Drover's Dog

48

Events Calendar

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

Junior Members: Thomas Camp, Lea Hiltenkamp, Gemma Swan Country Member: Melita Medcalf Chief Executive Officer: David Price

01

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

Important Health Information As the outbreak of Coronavirus (COVID-19) continues to develop, the Society has put in place measures to ensure that risks to members, volunteers, contractors, schools and staff are carefully managed. In accordance with advice from the Australian Government’s Department of Health (AGDH), if you or a member of your household or staff have recently visited an ‘at risk’ country, the Society requests that you follow the advice of the AGDH and do not attend any of the Society’s offices, events, or facilities including the Old Court House Law Museum.

Please see the Media Centre section at lawsocietywa.asn.au for further information.

International Women’s Day, Equitable Briefing and Women in Leadership Sunday, 8 March is International Women’s Day; the Department of Communities in WA is celebrating with the theme ‘Generation Equality’.

This edition of Brief spotlights the Law Council’s Equitable Briefing Policy, which was established in 2016 to support the progression of female barristers. Sara Pearson examines whether the Policy is helping to drive positive change towards gender equality. Exploring similar themes is an interview with former Prime Minister (and former lawyer) Julia Gillard, who is now the Chair of the Global Institute for Women’s Leadership at King’s College London.

Law Society Congratulates New Chief Judge of District Court and New President of Children’s Court on Appointments On the subject of female leadership, I take the opportunity to congratulate Her Honour Judge Julie Wager, who has been appointed as the new Chief Judge of the District Court.

Judge Wager will replace His Honour Chief Judge Kevin Sleight, who retires on 1 May. The Society also recognises the lengthy service of retiring Chief Judge Kevin Sleight, who has made a lasting contribution to the administration of justice in WA, as a Judge of the District Court since 2005, and as Chief Judge since 2015.

District Court Judge Hylton Quail has been appointed as the new President of the Children’s Court of Western Australia. Judge Quail is a former President and current Life Member of the Society.

Reform of Superannuation Death Benefit Nominations 02 | BRIEF MARCH 2020

The Society has submitted comments to the Law Council regarding proposed law reform of superannuation death benefit nominations.

The Society agrees that Commonwealth legislation should be amended to provide that a member’s superannuation death benefit forms part of the estate of the member upon their death, unless the member has a valid death benefit nomination.

The Society agrees that death benefit nominations may only be created, amended, revoked or removed by the member personally, or by a court or other authority.

The Law Council proposed that legislation be amended to provide that a member may nominate whomever they wish as a death benefit nomination. The Society considers this proposal to be too broad, though it supports extending nominees to a wider class of family members.

The Society supports the proposal that the nomination be non-lapsing (subject to section 15(2) of the Wills Act 1970), binding, must be completed with the same formality as required for execution of a will, that minor defects may be excused, and alternate or cascading nominations be allowed. The Society supports the proposal that the validity of the nomination can be disputed on the same basis as a testamentary disposition can be disputed.

The Law Council proposes that a member’s decision can be challenged by application to a court exercising jurisdiction to make orders for family provision. The Society prefaces its support for this proposal subject to whether proposed changes to legislation would allow a member to nominate whomever they wish. If there is a restriction on the class of beneficiary that may be nominated (as is the Society’s submission), then this proposal is unnecessary. However, if the class of beneficiary is unlimited, the Society is of the view that the ability to challenge by application to court would be appropriate.

Protocol on Standards of Judicial Behaviour In August 2019, the Australian Bar Association, Federal Court, Federal Circuit Court and Family Court of Australia agreed to the terms of a protocol whereby the President of the Australian Bar Association and Presidents of the State and Territory Bar Associations may raise any concerns about judicial conduct with the heads of those jurisdictions (ABA Protocol). The ABA Protocol applies to barristers only, setting out a procedure whereby barristers can raise concerns about judicial conduct.

The Law Council proposes that the ABA

Protocol be expanded to encompass a procedure for complaints by those appearing in court who are not barristers (i.e. solicitors).

The Society agrees with this proposal; however, the existing ABA Protocol merely sets out a complaints procedure without attempting to describe standards by which those complaints can be judged. The Society considers that any new or expanded protocol should do both.

Review of Amount Prescribed as Minor Punishment under Spent Convictions Regulations 1992 Under the Spent Convictions Act 1998 (WA), the calculation of the prescribed period for which a conviction becomes eligible to be spent is not affected when a person receives ‘minor punishment’ for an offence. The current definition of minor punishment is a fine not exceeding $500, as prescribed in the Spent Convictions Regulations 1992 (WA).

The Society has submitted to the Department of Justice that this amount should be increased, given that 15 years have passed since it was last amended.

Suitors’ Fund Levy The purpose of the Suitors’ Fund Act 1964 (WA) (Act) is to provide a fund that can be drawn upon to assist in the payment of costs incurred by litigants where decisions are upset on appeal or proceedings are rendered abortive through no fault of the litigants (Suitors’ Fund). The Suitors’ Fund is financed by contributions from litigants (through a levy upon certain originating processes in the courts) together with interest accruing from the investment of any sum not immediately required.

The Society has long advocated for reform of the Suitors’ Fund given that the amount that a litigant can be paid on an indemnity certificate granted under the Act is limited to $2,000; and the levy to be paid by litigants upon certain originating processes prescribed in the Act is capped at 20 cents.

The Society is liaising with the Department of Justice regarding proposals to increase levies in the Magistrates, District and Supreme Courts. The Society suggests an approach that would see those who can most afford a higher levy and are most likely to raise issues of law giving rise to issue of certificates, make the highest contribution.

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

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

This edition continues the focus on lawyers’ responses to current issues like climate change, and recent events affecting the community such as the bushfires.

This edition also bears out the dual nature of the Society’s functions – as serving both the profession and the community.

Our feature articles concern the bushfire relief fundraising event held by Society in conjunction with UWA and others such as the WA Bar Association, and include the Hon Robert French AC and David Hodgkinson’s addresses at the CPD lecture on climate change.

2020 is shaping up as an extraordinary year, due to global events such as the coronavirus, Brexit, and the upcoming US elections. On a local level it marks significant anniversaries, including the District Court’s 50th (and any reminiscences or observations from readers about this milestone and the Court’s early days would be greatly appreciated).

Last month’s editorial noted that 2020 is a big year for time-capsules. Further research revealed that a time capsule laid under the Perth Observatory in 1896 was Australia’s first time capsule.1 Many of its contents were provided by the extraordinary Dublin-born, long time Perth resident and pioneer in local X-ray technology, William John Hancock.

Hancock arrived in Perth in 1886 and, in addition to his x-ray work, oversaw the establishment of Perth and Fremantle telephone exchanges (which initially had 17 subscribers2), telegraph lines connecting Perth to the Kimberly and Pilbara, and tramways.

A stained-glass window commemorating Hancock was installed in UWA’s Winthrop Hall in 1934. If readers find this window vaguely familiar it may be from, years ago, gazing blankly through it after the terrible realisation that, while studying superbly for the Constitutional Law exam by preparing for questions on all but one of the 29 subsections to section 51 of the Constitution, the exam question was, fatefully, on good old “Lucky (vii)” – lighthouses, lightships, beacons and buoys.

A time-capsule discovered under Lenin’s statue in Kamchatka, Russia was opened early3, containing a message to the youth of 2024 to "improve the world and yourself in the name of communism, as Vladimir Ilyich Lenin taught us, as the Communist Party teaches us! Lenin is always with us!"

It also contained, according to the (possibly unreliable in this area) Bloomberg News Service, an endorsement of Vermont Senator Bernie Sanders.

04 | BRIEF MARCH 2020

50 years ago, a significant step was taken towards a national profession by the repeal of section 20(a) of WA’s Legal Practitioners Act which had required six-months residency in WA prior to admission here.

The Society ultimately resolved to press for the repeal, though it was close. The Society’s meetings attracted record turnout.

At one meeting 60 practitioners attended and after lengthy debate 30 voted to remove the requirement, 24 voted against, with six abstentions4. This is the sort of voting breakdown one gets in US Senate impeachment votes, or determining whether pineapple belongs on a pizza or burger.

Parliamentary debate reveals5 practical reasons for ditching the residency requirement– such as periods where it was almost impossible to get legal representation in Kununurra (the residency requirement prevented Darwin lawyers relieving the shortage). Opposition to the repeal may have had elements of self-interest, though was also based on fears interstate practitioners, once admitted, would do all their WA legal work over East. Parliament heard of “an Eastern States legal practitioner who came to Western Australia and had a holiday in this State for six months [complying with the residence qualification and getting admitted] when actually he was living at one of the beaches” and had not subsequently returned to WA. This could have been turned into a tourism ad “WA – beautiful one day, admitted here the next” or, as the local profession might have said to the Eastern states practitioner, channelling Lara Bingle: “So where the bloody hell are you?”

WA parochialism surged in October 1977 with the first WA v Vic state of origin football game. A non-state of origin WA v Vic match played three months earlier saw the Big V clean WA up by 63 points, yet the October state of origin match had WA pound the Vics by 94 points – a 157 point turnaround.

This is the sort of dramatic turnaround usually only found in Wrestlemania matches involving John Cena, and occasionally in Court soon after eagerly agreeing to a seemingly comforting question from the Bench: “so am I right in summarising how you put your best argument as…”. The State of Origin concept has of course been recently revived for the best of objects: bushfire relief.

Overseas, Brexit has caused many UK lawyers concern including about practising in EU Courts and Tribunals, and who are accordingly getting admitted in Ireland6 (with no prior-residency requirement it seems).

A controversy closer to home is the new series of reality TV show Married at First Sight which is accused of demeaning the institution of marriage7 (and/or television broadcasting itself) by having strangers paired together by “experts”, “married”, and after each week attending a “commitment ceremony” where they can choose to “stay” or “leave”.

It may be that this show is actually an (inadvertently) telling post-modernist metaphor for current UK events – in that the twist to the commitment ceremony is that if one party chooses to “stay”, even if the other chooses to “leave” they both have to stay together another week to see if they can sort things out. This seems exactly how many in the UK hoped the question of Brexit would continue to play out.

And, the show may also have referenced Megxit, in that while the Sussexes may have been pleasantly surprised that their “leave” card was met by HRH the Queen’s “leave” also card, they may have initially missed the small print after “leave” being “(your royal titles and branding rights behind)”.

This edition has, in addition to our much appreciated regular and other items, the District Court welcome ceremony for Judge David MacLean and Judge Charlotte Wallace, Karen Browne on Property Rights and Just Terms Compensation, Kate Allman’s interview of Julia Gillard, Danielle Bechelet’s A Matter of Trust item, Sara Pearson with an update on the Equitable Briefing Policy, Sukhwant Singh on Memories of London and Lord Denning and Micheil Paton on what lies ahead for law reform.

Endnotes 1 2 3 4

5 6 7

And it has no designated opening date, just like what is bound to be another Avengers movie.

Which sounds small, until one notes the Editor currently has less Twitter followers than that.

“Time Capsule Found Under Lenin Statue” (19.7.12) the moscowtimes.com.

See also Dr C May’s Celebrating 90 Years of the Law Society of Western Australia at lawsocietywa.asn.au/ history which also refers to a meeting attended by 71 members, and was equally close.

The Hon I.G. Medcalf (Metropolitan) WA Parliamentary Hansard [Council] 1969-1970 pp 2038 to 2040.

J Croft “Brexit concerns push UK lawyers to register in Ireland” (9/8/18) irishtimes.com.

It may actually preserve the institution – after seeing the participants on TV it’s doubtful anyone else would have a relationship with, let alone marry, any of them. It is also notable that the tattoo quotient of participants is of AFL/AFLW proportions, and the men don’t appear to own any socks.

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

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

MARCH 2020 Friday, 6 March 1:00pm – 2:00pm

Wednesday, 18 March 9:00am – 12:15pm

Tuesday, 24 March 4:30pm – 6:00pm

Ethics on Friday: Trends in complaints and complaint handling

CPD 123 For You – Your Core Skills

The Voluntary Assisted Dying Act – what you need to know

Thursday, 19 March 9:00am – 3:45pm

Wednesday, 11 March 9:00am – 12:15pm

Wednesday, 25 March 3:00pm – 6:15pm

Succession Law Intensive

Can the Law Help People with Body Image Issues?: Body Image Law

Thursday, 12 March 1:00pm – 2:00pm

Thursday, 19 March 9:00am – 3:45pm

Thursday, 26 March 1:00pm – 2:00pm

Costs Intensive

Costs Intensive

Thursday, 12 March 1:00pm – 2:00pm

Thursday, 19 March 4:30pm – 6:00pm

ASIC v Kobelt – a review of the High Court decision

Data Protection

The Best Place for Environmental Appeals

Friday, 13 March 12:00pm – 1:00pm

Friday, 20 March 1:00pm – 2:00pm

Building your Business Case for Flexible Work

Ethics on Friday: Getting it Right

Thursday, 26 March 4:00pm – 6:00pm Transforming Difficult Conversations into Positive Results

Monday, 23 March 8:45pm – 4:30pm

Monday, 16 March 8:45am – 4:40pm

Litigation Intensive

Friday, 27 March 1:00pm – 2:00pm Ethics on Friday: Advising Related Entities Monday, 30 March 9:00am – 12:15pm

Financial Abuse Forum

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

Tuesday, 24 March 9:00am – 11:00am

Tuesday, 17 March 9:00am – 4:00pm

Future Proofing your People and the Firm

CPD 123 For You – Your Culture

Health and Wellbeing in the Workplace

SAVE THE DATE Friday, 22 May 8:00am – 5:00pm Rural, Regional and Remote Legal Practitioners

Friday, 12 June 8:30am – 6:00pm Essentials of Advocacy & Negotiation

TAKE CONTROL of your CPD needs NOW Unlimited live seminars*

A library of seminar papers *

Face-to-face | live streamed webinars

Free to download

Unlimited eLearning seminars*

CPD FREEDOM

Access 24/7 | wherever you choose

Only $600 or $300

ist Do L o T n: lutio Reso ints D po P C Get ey mon Save time e r o up m Free ss stre e c u Red ty xibili e l f Get

Contact us today on (08) 9324 8640

For full details and how to purchase, please visit lawsocietywa.asn.au/cpdfreedom *

TERMS, CONDITIONS, FEES AND EXCLUSIONS APPLY. INC GST.

Saturday, 8 August 8:30am to Sunday, 9 August 1:00pm Practical Advocacy Weekend

All done with CPD Freedom

05

BushFire Relief Support

WA Legal Profession Shows Support for Bushfire Relief On Thursday, 30 January, the Western Australian legal profession showed its support for communities affected by bushfires, coming together to support a fundraiser for the Australian Red Cross relief fund, held at the University Club at the University of Western Australia, Crawley (“UWA�).

The lecture on climate change law was organised by the UWA Law School and the Law Society of Western Australia, with support from other WA legal associations, including: the WA Bar Special thanks to event host UWA and supporters

06 | BRIEF MARCH 2020

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.

The event allowed attending lawyers to show their support for bushfire relief, learn more about climate change and the law, and provided the opportunity to earn a Continuing Professional Development (CPD) point.

Over $7,600 was raised through the contributions of more than 220 people who registered for the event.

This money will be donated to the Australian Red Cross for use in its bushfire relief efforts.

Law Society President Nicholas van Hattem said, “It was encouraging to see so many members of the profession and law students attending the fundraiser and showing their support. At a time when communities across Australia have been devastated by the bushfire emergency, it’s imperative that the legal profession do whatever it can to provide assistance.

Events such as this help make a small, but meaningful contribution to the recovery and rebuilding efforts.”

“Like so many other Australians, my heart went out to the victims of the bushfires and I wanted to do something to help them”, said Dr Marilyn Bromberg, Director of the B. Arts Law and Society Major at

the UWA Law School. Dr Bromberg curated the event, saying: “Curating a fundraiser to raise money for the Australian Red Cross bushfire relief seemed like the most practical way that I could help. I am very grateful and proud that the WA legal community gave the event such tremendous support.”

Following introductory comments

by Professor Robyn Carroll of UWA Law School and UWA Chancellor the Hon Robert French AC, Associate Professor David Hodgkinson provided an engaging and thoughtprovoking keynote address on climate change law and policy in Australia.

Professor Hodgkinson’s talk provided

background to climate change law and policy in Australia over recent decades. He discussed current efforts to establish regulatory mechanisms to address climate change and examined the relationship between climate change and the recent Australian bushfires.

The remarks from the Hon Robert French AC and an overview of Professor Hodgkinson’s lecture are published in this edition of Brief.

Following an engaging Q&A session, Law Society President Nicholas van Hattem closed the even by thanking the organisers, speakers, donors and the many WA law associations who supported the event.

07

UWA and Law Society CPD Lecture on Climate Change – Opening Remarks

By The Hon Robert French AC 30 January 2020, The University Club, The University of Western Australia

I am delighted to be able to join with the Law School, the Law Society and the University Club in supporting this event to raise funds for bushfire relief through the Australian Red Cross. I look forward to hearing Associate Professor David Hodgkinson’s lecture on Climate Change Law in Australia shortly. My brief remarks will focus on the increasing prevalence of climate change litigation and its potential to effect public policy change.

I have been advised, rather unusually, that I must not speak for less than my allotted time of 10 minutes and that Professor Hodgkinson must speak for no less than his allotted 40 minutes. Any shortfall will evidently have the draconian result that the single CPD point allocated to the lecture will not be awarded. I will therefore err, but only slightly, on the side of caution.

08 | BRIEF MARCH 2020

Debate about climate change has generated concern and division in Australian society and around the world. Despite decades of warnings by scientists in a variety of disciplines, many governments, reflecting in part a degree of societal inertia and pressures from various constituencies, have failed to take decisive action to reduce global emissions.

The zeitgeist is changing in Australia. In September 2019, an online Roy Morgan Survey1 found that 78% of Australians were concerned about global warming, an increase of 12% since February 2014.2 Interestingly, 50% of those surveyed considered that if we did not act soon it would be too late. 28% said it is already too late and 18% considered the concerns are exaggerated.

Since September, Australia has experienced an early, devastating and tragic bushfire season driven by a combination of prolonged drought, high temperatures and high winds. As at 21 January, 30 people had been killed, including four fire fighters and many millions of hectares burnt. Estimates of animal deaths are in the millions. The fires have been of a magnitude and intensity that generate their own extreme fire physics, including local weather systems

complete with lightning which causes additional fires. We are in the realm of a frightening new bushfire paradigm driven by increasingly extreme weather patterns.

The fires have been a massive human and environmental tragedy. The immediate focus of communities, non-government organisations, such as the Red Cross, and governments is on support and recovery in the short and long term. Nevertheless, many Australians are experiencing and expressing concerns about the link between climate change, extreme weather events and their sequelae, and the perception that their governments, and particularly the national government, are not doing enough. Such concerns are not dispelled by assurances that we are complying with international legal obligations in relation to the reduction of greenhouse gas emissions. The collateral argument that the reduction of our emissions only withdraws a drop from the global ocean of CO2 becomes less and less convincing — not least because it can be applied to almost any country other than the United States, India and China.

The extent of Australia’s paper compliance with our Paris Agreement targets may have been affected by recent events. The bushfires have evidently released significant amounts of CO2 into the atmosphere. According to the Copernicus Atmosphere Monitoring Service conducted by the European Union and based on satellite and in situ data, some 400 mega tonnes of CO2 have been released into the atmosphere by the 2019–2020 bushfires. That represents, over a period of three months, Australia’s average annual carbon dioxide emissions.

That release has the obvious effect, as the United Nations Environmental Organisation observes, of increasing Australia’s annual greenhouse gas emissions. The fires in this way contribute to global warming and can be said to thus increase the probability of recurring mega fires leading to the release of yet more CO2. This is a climate feedback loop.

Policy change in this area will be driven by societal demands. It may be reflected in changes to the law or in the administration of existing laws about which Professor Hodgkinson will speak. It can also be affected by climate change litigation, the incidence of which is increasing around the world and is directed at governments, regulators and the private sector.

Australia is a player in this field. The Grantham Research Institute on Climate Change and the Environment in a Report published in July last year recorded the incidence of climate change litigation

around the world. In the United States there were 1,023 cases 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 cases respectively. New Zealand and Canada had 17 and 16 cases.3 The avenues for climate change litigation in any national jurisdiction depend upon its constitutional arrangements and the accepted role of the judiciary in that jurisdiction. I will mention briefly three very recent cases of climate change litigation in the Netherlands, the United States and France, each of which demonstrates, in its own way, the variety of forms which such litigation can take. They cannot readily be transplanted directly into the Australian context. As the Chief Justice of the Land and Environment Court of New South Wales, Brian Preston, said, speaking of environmental litigation generally in 2013: First and foremost the laws of the land must provide a foundation for environmental public interest litigation. The laws must create or enable legal suits or actions in relation to the aspect of the environment that is sought to be protected. If there is no right of action, there can be no litigation.4 Nevertheless, each can in its own way illuminate opportunities and obstacles and lines of argument which may be relevant in the Australian context.

The first of the three cases was commenced by a Dutch environmental group, The Urgenda Foundation and 900 Dutch citizens in 2015. They sought an order directing the Government of the Netherlands to reduce the State’s emission of greenhouse gases. The District Court in The Hague allowed Urgenda’s claim in 2015 ordering the State to reduce emissions by the end of 2020 by at least 25%, compared to 1990.

In 2018, the Court of Appeal confirmed that judgment. On 20 December 2019, the Supreme Court of the Netherlands dismissed an appeal by the State from the Court of Appeal’s decision.5 It its judgment the Supreme Court summarised the scientific consensus that greenhouse gases in the atmosphere retain heat radiated by the earth and that because an ever increasing volume of such gases has been emitted since the start of the Industrial Revolution, the earth is becoming warmer. Since the Industrial Revolution it has warmed by approximately 1.1oC, 0.7oC of which has occurred in the past 40 years.

The consequences of the warming of the earth beyond 1.5oC to 2o were

described by the Court as ‘extremely dire’ including extreme heat, extreme drought, extreme precipitation and a disruption of ecosystems that could jeopardise the food supply. The warming may also result in tipping points, as a result of which climate on the earth or in particular regions changes abruptly and comprehensively. I interpolate that the term ‘feed-back loop’ may play a role in defining such tipping points. The Court said ‘[a]ll of this will jeopardise the lives, welfare and living environment of many people all over the world, including in the Netherlands.6 The legal framework within which the Court made its decision was created

by Articles 2 and 8, applicable in the Netherlands, of the European Convention for the Protection of Human Rights and Fundamental Freedoms7 (Convention) relating to the right to life and the right to respect for privacy and family life respectively. Dutch courts are constitutionally required to apply the Convention. Under the case law of the European Court of Human Rights, a contracting state is obliged to take suitable measures if a real and immediate risk to people’s lives or welfare exists and the state is aware of that risk. By Article 13, national law must offer an effective legal remedy against a violation or imminent violation of the rights safeguarded by the Convention.8 In the course of its judgment, the Court made reference to the United Nations Framework Convention on Climate Change (UNFCCC), and the responsibility of States under that framework to take mitigating action. That responsibility informed the Court’s rejection of the proposition that the global nature of emissions and their consequences meant that no protection could be derived from Articles 2 and 8 of the Convention.

In its consideration of the UNFCCC the Court observed that no State party to that Convention can escape its own share of responsibility by arguing that compared to the rest of the world its own emissions are relatively limited in scope and that a reduction of its own emissions would have very little impact on a global scale. Each State is therefore obliged to reduce greenhouse gas emissions from its territory in proportion to its share of responsibility. Australia, it may be noted, is a party to the UNFCCC. The Netherlands Government argued, in the Supreme Court, that it was not for the courts to embark upon the political considerations necessary for a decision on the reduction of greenhouse gas emissions. The Supreme Court held it was up to the courts to decide whether 09

in taking their decisions government and the parliament remained within the limits of the law by which they are bound. The order which the District Court had issued to the State and which was confirmed by the Court of Appeal, was allowed to stand.

Illustrative of Chief Justice Preston’s observation, quoted earlier, about the constraints that the law may place on the availability of legal remedies, is the even more recent decision of the United States Court of Appeals for the Ninth Circuit in Juliana v United States,9 delivered on 17 January 2020. Twentyone young people and an environmental organisation brought an action against the United States and various government agencies alleging climate-change injuries caused by the Federal Government continuing to ‘permit, authorize and subsidize’ fossil fuel. The injuries included were psychological harms, impairment to recreational interests, exacerbated medical conditions and damage to property. The plaintiffs sought, among other things, an injunction ordering the Government to implement a plan to ‘phase out fossil fuel emissions and draw down excess atmospheric carbon dioxide’. By majority the Court held that there was little basis for denying that climate change was occurring at an increasingly rapid pace and that the unprecedented rise in carbon dioxide levels stemmed from fossil fuel combustion and would wreak havoc on the earth’s climate if unchecked. The record also conclusively established that the Federal Government had long understood the risk of fossil fuel use and increasing carbon dioxide emissions and established that the Government’s contribution to climate change was not simply a result of inaction. The Court nevertheless concluded that the relief sought by the plaintiffs was beyond its constitutional power. It was beyond the power of an Article III court to order, design, supervise or implement the requested remedial plan where any effective plan would necessarily require a host of complex policy decisions entrusted to the wisdom and discretion of the executive and legislative branches.

Despite finding adversely to the plaintiffs on the question of justicability, the majority opinion, written by Circuit Judge Hurwitz, was with the plaintiffs on the facts. Indeed, he revealed what may have been a baby boomer cultural preference in the opening paragraph of his opinion which read: In the mid-1960s, a popular song warned that we were ‘on the eve of destruction’. The plaintiffs in this case 10 | BRIEF MARCH 2020

have presented compelling evidence that climate change has brought that eve nearer. A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.10 He concluded his reasoning observing: We reluctantly conclude … that the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box. That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.11 The dissenting judge, District Judge Staton, who would have found for the plaintiffs, held that their suit sought to enforce the most basic structural principle embedded in their system of liberty, namely that the Constitution does not condone the nation’s wilful destruction. She would have held that the plaintiffs had standing to challenge the government’s conduct had articulated claims under the Constitution and sufficient evidence to press those claims to trial been presented. Judge Staton’s opening paragraph was, if anything, more dramatic than that of the majority opinion: In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity. It is as if an asteroid were barrelling toward Earth and the government decided to shut down our only defences. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.12 The third example from another national jurisdiction is pending litigation in France in which 14 local authorities and five nongovernment organisations have instituted proceedings in the Nanterre District Court against the oil company, Total, seeking orders that it take necessary measures to drastically reduce its greenhouse gas emissions. The action relies upon a new French law called ‘The Law on the Duty of Vigilance’ which came into force in March 2017 and requires some large French multi-national companies to take measures to identify and prevent risks to

human rights and environmental violations caused by their activities and those of their subsidiaries. Those measures are required to be published in a Vigilance Plan and effectively implemented. Any party can take a company to court if it fails to comply with its obligation.

The plaintiffs relied upon that statutory cause of action. Total is alleged to be responsible for about 1 per cent annually of global emissions and to be one of 20 companies contributing the most to global warming world-wide.

On Tuesday, 28 January 2020, Total was summoned to appear before the Nanterre District Court. Orders sought include the publication and implementation of a Vigilance Plan to align its activities with a greenhouse gas emission reduction pathway, including Scope 1, 2 and 3 emissions, compatible with limiting global warming to 1.5oC above pre-industrial levels in order to achieve carbon neutrality by 2050. Plainly, that action is pending.

The action appears to have been made possible by a public law creating statutory duties enforceable by private parties without any requirement to meet a standing test. Provisions of that kind can be seen in the Australian Competition and Consumer Law which authorises private enforcement actions by any person in respect of contraventions of the legislation.

The three examples I have cited are high profile climate change cases from around the world, which demonstrate the opportunities and limitations on litigation dependent upon particular constitutional and statutory frameworks. The Australian legal system offers opportunities for climate change litigation and, as noted earlier, there is a considerable number of cases on foot. Public law avenues obviously include objection processes where development approvals are sought, and administrative and judicial review of regulatory and ministerial decisions. Private law remedies under the law of tort may be available in actual or apprehended pollution-generating activities leading to or associated with production of greenhouse gases. A leading case in the area of judicial review of regulatory action is the decision of the Land and Environment Court, delivered in February 2019 in Gloucester Resources Ltd v Minister for Planning13 in which the Land and Environment Court of New South Wales dismissed an appeal against refusal of a ministerial consent to an application to re-open an old open coal mine. In so doing the Court considered greenhouse gas emissions which it found to be causally linked to climate change and its consequences. A causal link was based upon the proposition

that each emission made a cumulative contribution.14 Scope 3 emissions, that is downstream emissions resulting from the use of the producer’s product were taken into account in that decision.

There has in the last two or three years been an increasing level of public discussion about the content, in an era of climate risk, of the statutory and fiduciary duties of company directors in Australia and elsewhere to exercise due care and diligence and to disclose matters which may materially affect the interests of the company. In a widely publicised joint opinion, commissioned by The Centre for Policy Development, published in 2016 and revised in 2019, Noel Hutley SC and Sebastian Hartford Davis, both of the Sydney Bar, said: 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.15 The approach to the law which they have enunciated has been given support by the Australian Securities and Investment Commission and most recently has

been said to reflect the position in both Australia and the United Kingdom by Lord Sales, a Justice of the Supreme Court of the United Kingdom.16 A pending case in the Federal Court of Australia, likely to be heard this year, has been brought by a member of the Retail Employees’ Superannuation Trust alleging that it has breached its fiduciary duties owed to members by failing to adequately disclose or assess the impact of climate change on its investments. The applicant is represented by Environment Justice Australia. The implications of such litigation are clear enough.

Climate change litigation represents one class of items in the menu of measures that may effect societal and public policy change. In some cases, such as the Urgenda Case, the decision of the Court impacts directly on government action. Other forms of climate change litigation may have less direct effects, but nevertheless influence public policy, and importantly private sector responses. The question of their effects and the wider issues to be discussed by Professor Hodgkinson are no longer matters only of interest to lawyers. They have a real and personal importance for all Australians.

Endnotes 1

Roy Morgan, ‘78% of Australians concerned about Global Warming’ September 23, 2019, Finding No

8145, Press Release Special Poll, Australia. <http:// www.roymorgan.com/findings/8145-global-warmingaustralia-september-2019>.

2

The survey covered 1,006 Australians aged between 18 and 64.

3

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.

4

Hon Brian J Preston SC, ‘Environmental Public Interest Litigation: Conditions for Success’, International Symposium Towards an Effective Guarantee of the Green Access: Japan’s Achievements and Critical Points from a Global Perspective, 30-31 March 2013.

5

State of the Netherlands (Ministry of Economic Affairs and Climate Change Policy) v Stichting Urgenda ECLI:NL:HR:2019:2007, Hoge Road, 19/00135.

6

Ibid 4.

7

Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).

8

Ibid.

9

Juliana v United States Case: 18-36082, 01/17/2020, ID: 11565804, DktEntry: 153-1.

10

Ibid 11 (footnote omitted).

11

Ibid 32.

12

Ibid 32–33.

13

(2019) 234 LGERA 257.

14

Expert evidence given by Professor Steffen who said that ‘All emissions are important because cumulatively they constitute the global total of greenhouse gas emissions which are destabilizing 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’. The role of cumulative causal contributions is not novel and was applied by the High Court of Australia in asbestos litigation in Amaca Pty Ltd v Booth (2011) 246 CLR 36.

15

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

16

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

Life is about having a beautiful space to come home to.

Artique Building Pty Ltd – BC #9669 Registered Builder/Supervisor: Malcolm Goode – BP #7816

Contact Malcolm Goode ‘Today’ for a personal obligation free appointment to discuss your new home ideas, direct with the Designer/Builder/Director himself providing the confidence of over 30 years’ experience in producing Great Homes.

Artique EST. 1988

HOMES

T: 0418 959 741

www.artiquehomes.com.au

enquiries@artiquehomes.com.au

CUSTOM HOME DESIGNER & BUILDER

Experience – C onfidence – Trust

11

Climate Change Law, Policy and Action in Australia: The Past, the Present and the Uncertain Future

By David Hodgkinson Good evening. It’s a pleasure to be here.

Thank you for the invitation to speak.1

Introduction: The climate change problem Climate change poses a few different problems: The scientific problem: How can the significant amounts of CO2 in the atmosphere causing the earth’s climate to change be lowered? How can the climate be stabilized such that global temperatures rise no more than 2°C? That ship appears to have sailed …

The economic problem: How can the economy be decarbonized while addressing global economic disparities?

The social problem: How can human societies alter their climate-changing behaviour and adapt to climate change?

And the legal/policy problem: What laws/regulations can be introduced to reduce emissions and assist people, species, and ecosystems vulnerable to climate change?2 The focus of my presentation is that last problem.

I first outline domestic mechanisms or instruments to mitigate climate change generally, and I consider Australia specifically. I then look at climate change and the Australian bushfires.

Domestic mechanisms (or instruments to mitigate the climate change problem)

Many of the impacts of climate change can be reduced or delayed by mitigation.

Mitigation involves reducing greenhouse gas emissions, reducing the rate and magnitude of global warming. The main economic requirement for effective mitigation is to put a price on carbon. At the moment people don’t – we don’t – really pay for the current and future costs of our emissions. Thus, Lord Stern talks about a climate change ‘market failure.’

As one economist puts it, "we need to correct this market failure by ensuring that all people, everywhere, and for the indefinite future are confronted with a market price for the use of carbon that

12 | BRIEF MARCH 2020

reflects the social costs of their activities.

Economic participants – thousands of governments, millions of firms, billions of people, all making trillions of decisions each year – need to face realistic prices for the use of carbon if their decisions about consumption, investment, and innovation are to be appropriate".3 In terms of policy instruments or systems to mitigate climate change – to increase the price of carbon, to limit emissions and to encourage the development of alternative energies – there are, I think, a couple of principles: • first, the more simple a system is, the more likely it is to work; and • second, the fairer a system is, the more likely it is to last.

The question is whether to rely on quantity-based or price-based instruments. A quantity-based instrument is an ETS, the most common example of which is a cap-and-trade system (variations of which the states and the federal government have attempted). A price-based instrument is a carbon tax. A tax sets a price on carbon, and emitters choose how much to emit; an ETS sets a total quota for emissions, and emitters – the market – work out the price.

So – against that background – the Australian experience.

Australia

later refused to ratify Kyoto despite being on track to meet its target. Following its 2007 election, the first official act of the new government was to ratify Kyoto.

Prior to that ratification, however, the Australian states and territories also took action, in large part because of Commonwealth inaction. They put in place a variety of state-based mitigation measures including mandatory emission trading schemes. They also formed a taskforce to develop a model for a national emissions trading scheme.

In 2011, after the election of a Labor minority government, the Clean Energy Act 2011 (Cth), was passed in November 2011 to put a price on carbon in Australia.

It was repealed by the Abbott government in 2014. We now have the Emissions Reduction Fund (the ERF), the last mechanism standing, which is no one’s idea of a truly effective scheme.

The ERF "provides businesses with the opportunity to earn Australian carbon credit units for every tonne of carbon dioxide equivalent a business stores or avoids emitting through adopting new practices and technologies.

[It] … provides financial incentives to organisations and individuals to use new practices and technologies in their business, so they can reduce their greenhouse gas emissions and improve their energy efficiency.

Australia is both highly vulnerable to the effects of climate change and economically privileged by virtue of its consumption and export of emission intensive fossil fuels. It is, perhaps, for these reasons that successive Australian governments have struggled with the competing tensions associated with protecting the country’s economic interests and taking effective action on climate change mitigation both internationally and domestically.

Participants in the scheme can earn Australian carbon credit units (ACCUs) for every tonne of carbon dioxide equivalent they store or avoid emitting. ACCUs can be sold and can generate participants an income".4

Australia’s international efforts to accede to climate change instruments have been chaotic. It did sign and ratify the United Nations Framework Convention on Climate Change in 1992, and signed its Kyoto Protocol in 1998. However, the then Liberal/National coalition government

Climate change and the Australian bushfires

All this to say – Australia knows more about putting a price on carbon than, I think, any other country. We just can’t keep a carbon price – or, at least, an effective one.

Late last year the Climate Council found that: 1. The catastrophic, unprecedented fire conditions currently affecting

NSW and Queensland have been aggravated by climate change.

Bushfire risk was exacerbated by record-breaking drought, very dry fuels and soils, and record-breaking heat.

2. Bushfire conditions are now more dangerous than in the past. The risks to people and property have increased and fire seasons have lengthened. It is becoming more dangerous to fight fires in Australia.

3. The fire season has lengthened so substantially that it has already reduced opportunities for fuel reduction burning. This means it is harder to prepare for worsening conditions.

Climate change has worsened the current bushfire crisis.

This year bushfire risk in parts of northeast New South Wales and southeast Queensland has been exacerbated by drought, very dry fuels and soils, and heat. All of these factors have been aggravated by climate change.7

The Climate Council states that climate change is driving worsening bushfires in Australia: The burning of coal, oil and gas is driving up global temperatures, leading to hotter Australian conditions. Since the mid-1990s, southeast Australia has experienced a 15% decline in late autumn and early winter rainfall and a 25% decline in average rainfall in April and May. Across Australia average temperature has increased leading to more record-breaking hot weather.

[Another] reason why global warming doesn’t trigger our concern is that we see it as a threat to our futures — not our afternoons …

There is a [final] ... reason [Gilbert says] why we just can’t seem to get worked up about global warming.

The human brain is exquisitely sensitive to changes in light, sound, temperature, pressure, size, weight and just about everything else. But if the rate of change is slow enough, the change will go undetected ...

As the Climate Council further states in an additional report: The extreme weather events … provide the latest evidence of a longterm trend of worsening extreme weather. In Australia, the frequency and intensity of many extreme weather events – heatwaves, bushfires, floods, and storms – have increased over the past several decades, mirroring many of the trends that have been observed globally. The evidence is clear that climate change is in influencing the global trend of worsening extreme weather.8

4. The costs of fighting fires are increasing. Australia relies on resource sharing arrangements between countries and states and territories within Australia. As seasons overlap and fires become more destructive, governments will be increasingly constrained in their ability to share resources and the costs of tackling fires will increase.

5. The government must develop an urgent plan to (1) prepare Australian communities, health and emergency services for escalating fire danger; and (2) rapidly phase out the burning of coal oil and gas which is driving more dangerous fires.5

indecent ... or repulsive ... Although all human societies have moral rules about food and sex, none has [such] a … rule about atmospheric chemistry. And so we are outraged about every breach of protocol except Kyoto ...

Extreme fire danger days have increased.6

Conclusion: ‘If global warming is the devastating threat that Al Gore says it is, then why aren’t people freaking out about it?’

The editor of the Los Angeles Times newspaper asked Harvard psychologist Professor Daniel Gilbert this question a few years ago: ‘If global warming is the devastating threat that Al Gore says it is, then why aren’t people freaking out about it?’

Mr Gilbert’s response was that there are a few reasons: [It] doesn’t put our brains on orange alert [because] … it doesn’t violate our moral sensibilities. It doesn’t cause our blood to boil (at least not figuratively) because it doesn’t force us to entertain thoughts that we find

Because we barely notice changes that happen gradually, we accept gradual changes that we would reject if they happened abruptly.9 As Professor Gilbert says, ‘[e]nvironmentalists despair that global warming is happening so fast. In fact, it isn’t happening fast enough.’10 Endnotes 1

This is a slightly amended and condensed version of remarks given at a public seminar held at the University of Western Australia on 30 January 2020.

2 See Adrian Parr, The Wrath of Capital, Columbia Press, New York, 2013, p 4.

3 ‘The Question of Global Warming’: An Exchange, William D Nordhaus, Dimitri Zenghelis and Leigh Sullivan, reply by Freeman Dyson, New York Review of Books, 25 September, 2008, https://www.nybooks.com/ articles/2008/09/25/the-question-of-global-warming-an- exchange/.

4 Emissions Reduction Fund, ‘Financial incentives for businesses to reduce their carbon emissions,’ at https:// www.business.gov.au/Grants-and-Programs/EmissionsReduction-Fund.

5 Climate Council, Briefing Paper, 12 November 2019, “’This is Not Normal’: Climate change and escalating bushfire risk,” p 1.

6 Ibid, p 2.

7 Ibid, p 1.

8 Climate Council, Weather Gone Wild: Climate ChangeFuelled Extreme Weather in 2018, Climate Council of Australia, 2019, p 35.

9 Daniel Gilbert, ‘If only gay sex caused global warming,’ Los Angeles Times, 2 July, 2006.

10 Ibid.

Shearn HR Legal - Human Resource + Recruitment is one of the leading, longest standing, legal recruitment agencies in Perth. With Julianna Shearn at the helm, holding more than 25 years’ pure, legal recruitment experience and just under 5 years’ as a lawyer, it is your best resource for career advice and guidance, salary and performance appraisal advice, recruitment solutions and assistance, partner and team movement advice and assistance and overall legal recruitment expertise. Call now for a confidential discussion about your most important asset, you or your firm!

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

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

13

Welcoming Ceremony for Judge David MacLean and Judge Charlotte Wallace Transcript of Proceedings, District Court of WA, Perth on Tuesday, 4 February 2020 SLEIGHT CJDC, Chief Judge, District Court of Western Australia MR J.R. QUIGLEY MLA, Attorney-General of Western Australia MR N.P. VAN HATTEM, President, The Law Society of Western Australia MR S. DAVIES SC, President, Western Australian Bar Association MR A.G. ELLIOTT, Criminal Lawyers’ Association of Western Australia SLEIGHT CJDC: This is a special sitting to welcome to the Court his Honour Judge David MacLean and her Honour Judge Charlotte Wallace. Their Honours received their commissions from his Excellency, the Governor, on 23 December 2019.

To commence this ceremonial sitting I wish to take the opportunity to acknowledge the Whadjuk people of the wider Noongar clan as being the first custodians of the land upon which this Court is built. I also acknowledge the other Indigenous clans throughout The State of Western Australia. I pay my sincere respects to their elders both past and present of all such clans.

I extend a special welcome to Judge MacLean’s family. His Honour’s wife, Rhianna, his Honour’s children Zachia and Kalila, his Honour has two younger children, Thara and Jana who are not here this morning. I also give a special welcome to his Honour’s parents, David and Jean, his Honour’s grandfather Edward Dhu, his Honour’s brothers Gavin and Cameron and also welcome his Honour’s other special guests.

I also extend a special welcome to Judge Wallace’s family. Her Honour’s husband, Shane, her Honour’s sons Zach and Luca, her Honour’s daughter Chance, her Honour’s mother Eileen Simms and I also welcome her Honour’s other special guests.

The Court is honoured to have the Chief Justice of Western Australia, the Honourable Peter Quinlan, sitting with us today. The Court also acknowledges the presence of the Honourable Janine Pritchard, President of the State Administrative Tribunal, the Honourable John Vaughan of the Court of Appeal, the Honourable Jeremy Curthoys, Ms Ros Fogliani, State Coroner, the Honourable John Chaney, his Honour Judge Barlow, his Honour Patrick O’Neal, Mr Joshua Thomson SC, Solicitor General of Western Australia, Ms Amanda Forrester

14 | BRIEF MARCH 2020

SC, Director of Public Prosecutions WA, Mr Nicholas Egan, State Solicitor, Ms Clare Thompson, representing Women Lawyers of Western Australia and Mr Adam Tomison, Director General of the Department of Justice.

I also welcome other distinguished guests, all members of the legal profession and members of the community. I also welcome the speakers at the Bar Table, the Honourable John Quigley, MLA, Attorney-General of Western Australia, Mr Nicholas van Hattem, President of the Law Society of Western Australia, Mr Stephen Davies SC, President of the Western Australian Bar Association and Mr Anthony Elliott, President of the Criminal Lawyers Association of Western Australia.

The appointments of Judge MacLean and Judge Wallace arise from the retirements of their Honours Judge Stephen Scott and Judge Patrick O’Neal.

I take this opportunity to publically acknowledge the services to the District Court of both Judge Scott and Judge O’Neal over a very long period. I also wish to thank you, Mr Attorney and also Mr Joshua Thomson, the Solicitor General for the prompt appointments of Judge MacLean and Judge Wallace as replacements for Judges Scott and O’Neal.

This Court is facing what I have described as a workload crisis as demonstrated by the fact that the earliest criminal trial dates that are now available at a listing hearing to be conducted this Friday will be limited dates in November and December 2020. In these circumstances the Court could ill-afford to have delays in the appointment of replacement judges.

I also acknowledge and thank Janine Howard, the Manager of Judicial Staff, Sue Owen the Executive Manager of the Court, Tanya Sloan, my Executive Assistant and all the Court staff for setting up the new judges’ in their

Chambers over a short period of time.

Judge MacLean and Judge Wallace both come to this Court with considerable prior judicial experience and in many respects offer a diversity in background which is an important element when making judicial appointments to this Court. On behalf of the judges of the Court, I welcome both Judge MacLean and Judge Wallace to the family of the Court. I am confident that they will both have a long and successful career on this Bench.

Yes, Mr Attorney?

QUIGLEY, MR: Thank you, Chief Judge.

I too would like to acknowledge the Whadjuk People of the Noongar Nation upon whose lands we meet to celebrate the appointments this morning and I pay my respects to their elders both passed, present and emerging. I would also like to add my acknowledgment of the list of distinguished guests attending this morning, but I shan’t repeat those at length. But it is an important occasion and their presence marks the importance of that occasion.

It’s my pleasure to appear at Bar table this morning before the Court on behalf of the State Government and the people of Western Australia to welcome to this Court these two new judges of the utmost integrity and intellect whom I’m confident will serve the public with distinction. And I speak, of course, of Judge David MacLean and Judge Charlotte Wallace. Firstly, if I may address you, the Court, in respect of Judge David MacLean and it’s my pleasure to welcome Judge David MacLean as a judge of the District Court of Western Australia. And I extend a warm welcome to his family here today, his wife Rhianna, his children Zachia and Kalila and acknowledge Thara and little Rhianna.

I also acknowledge the presence here this morning of David’s parents David and Jean and his brothers at law, not

in-law but at law, Cameron MacLean and Gavin MacLean and acknowledge the presence of David’s grandfather Mr Edward Dhu. As I remarked publicly when I announced Judge MacLean’s appointment, Judge MacLean is an Aboriginal man whose kinship links are in the Pilbara region of Western Australia and in the area of Marble Bar in particular, his clan being Neeli Bali. It is believed that Judge MacLean is the first person of Aboriginal heritage and kinship to be appointed to the Western Australia District Court.

The government is so pleased that the legal profession as a whole has brought forward a practitioner of Judge MacLean’s experience and intellect and all the more pleased that we have sitting on the Court our first judge of Indigenous heritage. The appointment was made, of course, on absolute merit and after wide consultation with the legal profession which consultation included with the Chief Justice of Western Australia, yourself Chief Judge, the Bar Association, The Law Society, The Women Lawyers Association and all other stakeholders. And so Judge MacLean’s appointment has received a very wide and very strong support to become a member of this Court.

I consider it vital for our Courts to have as deep an understanding as possible of the Indigenous culture especially as it intersects with our criminal justice system. And I know that you, Chief Judge, have taken the great steps in that regard to take the Court to the Kimberley not on circuit but to meet with Indigenous families and to get a greater understanding of the challenges that people of that culture face and I’m confident that Judge MacLean will bring to the Bench and to the common room and to the family of District Court judges his experience of what it’s like to be a member of that culture and to intersect with the Courts.

The Productivity Commission, of course, noted that in Western Australia we have a very, very high rate of Indigenous offending and incarceration and it’s a challenge for this Court to deal with that and I’m sure that Judge MacLean will bring his experience and legal learning to that task. I realise that Judge MacLean has very close-hand experience of what it’s like to be part of a culture where the intersection of the culture with the legal system can have dire consequences and Judge MacLean, of course, was a relative of the late Ms Dhu who died in such unhappy circumstances. But I’m confident that his Indigenous heritage will enrich the Court.

May I turn to Judge MacLean’s legal learning or education? Judge MacLean was educated at Mazenod College here in Perth before graduating from the University of Western Australia with his LLB. Judge MacLean was admitted to practice in Western Australia in 1991 after completing his Articles of Clerkship working at the firm Kott Gunning where at that time I was a partner. Shortly after completing his Articles, Judge MacLean moved to a firm that I had initiated, Quigley Coulson Chenu, where he worked from 1992 to 1995 and I had first-hand experience of not only his legal learning but his temperament, his Courtesy at all times and his very even and considered temperament which I'm sure will be a great addition to the Court and to those practitioners appearing before him.

Whilst at my firm he had experience both in appearing in Royal Commissions as the junior for the late Brian Singleton QC from where he learnt a good deal of advocacy and dealing with people and he also practised in areas of civil litigation, criminal law, employment law and industrial relations and I had the opportunity of experiencing Judge MacLean's temperament and legal learning first hand.

Sadly, he resigned from my firm to take up further opportunities in 1995. He practised as a sole practitioner before joining the Aboriginal Legal Service in 1998 and worked in a broad range of areas, including civil litigation, Native Title, coronial inquiries and employment law. It was here where he advised and represented litigants in matters concerning the Stolen Generation and Inheritance Act claims.

Judge MacLean was part of ATSIC delegation which travelled to Geneva to speak with members of the United Nations Committee for the Elimination of Racial Discrimination. Judge MacLean then became a part of O'Connor MacLean Lawyers in 2001 where he practised until 2005 when he joined Downings Legal as a senior solicitor.

In 2008 he commenced practice as a barrister and joined Sir Francis Burt Chambers where he accepted briefs from not only the Office of the Director of Public Prosecutions but also from Legal Aid and was very experienced as an advocate in crime from both ends of Bar table.

In September 2015 Judge MacLean left Chambers and went to SAT as a member of the State Administrative Tribunal where he discharged himself with distinction and the published judgments

of Judge MacLean in that jurisdiction spoke volumes of his ability to be a very good and strong addition to this Court.

At SAT he presided over a broad range of hearings, including matters involving building complaints, strata titles, commercial tenancy disputes and applications made under the Guardianship Act. More often than not the applicants and respondents to the matters being heard were selfrepresented and I'm sure that those respondents would have felt very comfortable appearing in front of Judge MacLean.

In September 2018 Judge MacLean was appointed a magistrate where he served in the Magistrates Court in Bunbury and in the Children's Court. It is now a progression in an impressive history that he has now been appointed to this Court and the government was, as I said earlier, so pleased that the legal profession has brought forward and so strongly supported the nomination of Judge MacLean and elevation of Judge MacLean to this Court.

On behalf of the Western Australian government and the Western Australian community I now congratulate you on your appointment as a judge of this Court and wish you well in your service to the people of Western Australia.

If I may now turn with pleasure to welcoming Judge Charlotte Wallace as a judge of the District Court of Western Australia, I extend a warm welcome to her Honour's family here today, her husband Shane and their children Zachary, Luca and Chance.

Her Honour's story is quintessentially a Western Australian story in that she was born overseas in Wales and migrated to Western Australia with her family to Perth as a child. They settled in Applecross before heading north where her father worked in the oil and gas industry.

Judge Wallace completed high school at the Karratha Senior High School before moving to Perth for her tertiary studies.

Judge Wallace graduated in 1995 with a Bachelor of Arts, being awarded honours in psychology from Murdoch University and then in 1996 with a Bachelor of Laws with honours and in 1998 a Master of Laws with honours, LOM, from the Murdoch University.

Judge Wallace completed the College of Law in New South Wales with high distinction in 1998 and was admitted as a solicitor in the Supreme Court of New South Wales in 1998. In September 2000 Judge Wallace was admitted as a solicitor in the Federal and High Courts 15

of Australia and in 2001 was admitted as a solicitor in the Supreme Court of Western Australia.

In 2001 Judge Wallace commenced practising with Freehills in Perth before moving to Freehills in Sydney in 2002 where she her husband Shane. She returned to Freehills in Perth in 2005 where she remained until 2011 when she became a fulltime legal member with the State Administrative Tribunal before moving up to a senior member role at SAT in 2016.

Before her appointment to the tribunal Judge Wallace has acted as an instructing solicitor in numerous large Supreme Court matters in areas of contract, misleading and deceptive conduct and negligence and Judge Wallace also attended hearings in various tribunals and commissions, including the HIH Royal Commission, the Dust and Diseases Tribunal in New South Wales and the Corruption and Crime Commission in Western Australia.

In 2013 Judge Wallace established an inaugural tribunal pro bono scheme, drafting the scheme's guidelines and referral documents and establishing its panel of practitioners. The success of the scheme has led to many invitations to meet and present to other jurisdictions wishing to adopt the same scheme.

Judge Wallace is an experienced facilitator and mediator and obtained her National Mediation Accreditation in February 2014. As a senior member of SAT, Judge Wallace headed up the Human Rights and Building Disputes jurisdiction and presided heavily in jurisdiction of vocational regulation, particularly in medical-related vocations.

Judge Wallace conducted hearings and delivered oral and written decisions, as well as facilitating and mediating complex matters. Judge Wallace has been extensively involved in training and education of other members of SAT, as well as being actively involved in new initiatives such as working with others to improve SAT's use of technology investigating and developing forms of online dispute resolution.

For those who know her well they say Judge Wallace is meticulously organised and well prepared in her approach to the law. They say that Judge Wallace comes to the Bench of this Court determined to ensure all parties are properly heard and that processes ensure fair outcomes.

As an animal lover, I'm told she's got a soft spot for rescue dogs and that may be her only weak spot but on behalf of the Government of Western Australia, 16 | BRIEF MARCH 2020

on behalf of the community of Western Australia, we sincerely congratulate you, Judge Wallace, and we have the absolute confidence that you will discharge your duties as a judge of this District Court with distinction.

May it please the Court.

SLEIGHT CJDC: Thank you, Mr Attorney.

Yes, Mr van Hattem?

VAN HATTEM, MR: Your Honours, the Law Society offers its congratulations and best wishes to your Honours. It’s particularly special to address this Court in a joint ceremony. Both appointments serve to help the Bench better reflect our State’s diverse community. I do note that today the District Court Bench more closely reflects the community than the speakers at this Bar table. The Law Society is committed to initiatives so that the profession may follow this lead.

Your Honours each bring unique perspectives to this Court. Your Honour Judge MacLean was one of the decreasing but celebrated group of generalists. Prior to your appointments to the Tribunal and the Magistrates Court, as a solicitor and barrister you practised in many areas.

Your former band mates complain that you were far more committed to the practice of law than the practice of your musical instruments, of your time playing bass in Perth band Wiley Infidels, a band mate said that you loved to perform but were a reluctant rehearser. (Indistinct) reluctant your band mates would look forward to the latest excuse for your non-appearance. Her best, “I can’t make it my car is on fire.” We hope your Honour will offer similar understanding when accused or their counsel miss an appearance.

It is a pleasure to be joined in Court today by your Honour’s family.

Colleagues have remarked on your Honour’s generosity as a father, a friend and with regard to your pro bono contributions in your practice, a very generous practitioner.

I think it is my duty to note another matter. Your Honour is a very good looking man. I’m told that in addition to being a rock star your Honour also dabbled in modelling. I should confess I only have a single source for this but it is a reliable source and my source said that your image was used to promote one of our State’s finest exports. I refer of course to Emu Export although these days your Honour’s palate is more attuned to fine red wine than a red and white can.

Your Honour has also been a generous contributor the Law Society having originally joined in April 2001. You have served as a mentor and a member of the Society’s Aboriginal Peoples and the Law Committee as an Indigenous Legal Issues Committee was then known. The society is grateful for your continued support and looks forward to hearing your Honour’s perspectives at the welcome to the profession event later this year.

Your Honour is a proud Aboriginal man.

Colleagues reflect on the depth of your understanding of what it means to be an Aboriginal person in this State. Part of that understanding comes from lived experience. Some of it comes from long and often difficult conversations in which your Honour has engaged variously with openness, understanding, empathy, sometimes with forbearance, sometimes even with humour, always with an open mind and patient ear.

Your Honour Judge Wallace, from a young age your family knew you were destined to be a leader in the law. You were an argumentative child but your arguments were logical and I understand often persuasive. It is a pleasure to be joined in Court today by your Honour’s husband Shane and your Honour’s children, one of which is considering to join our profession and two of which so far steadfastly refuse to consider such a thing.

After graduating with Honours in Psychology and a Master of Law, your Honour practised in commercial litigation at Freehills. For a time your Honour worked in the firm’s Sydney office with Professor John Carter of Carter On Contract. Professor Carter remembers your Honour as, and I quote, “Terribly competent and overly modest.”

This description could also apply to your Honour’s efforts to increase access to the State Administrative Tribunal both in your work to establish the Tribunal’s pro bono scheme and act as the scheme coordinator and also in your Honour’s contributions to CPD. You’ve been a member of the Law Society since 2007, highlights of your contributions include your contribution to the 2018 Summer School addressing the topic of diversity in the law, regular appearances at other society events including the View from the Bench Seminars and a detailed examination of the Guardianship Jurisdiction of the Tribunal at last year’s Piddington Conference.

Your Honour has spoken of a continued

commitment to educate the profession particularly in relation to advocacy and the Society would be grateful for your Honour’s continued support. Your work as a senior member is well-known, colleagues regard you as a heavy lifter in the Tribunal, not afraid of hard work or complicated matters and colleagues reflect on your Honour’s high attention to detail.

You were also a well-regarded mediator, engaged and well-prepared for all matters in which your Honour presided.

Frank and honest with the parties about their respective positions and in tune with the various issues they faced.

As a senior member your Honour has been fair but firm and discharged the administration of justice with efficiency and a strong ethical compass.

I’ve touched on your Honour’s family.

I’ve not yet mentioned as the Honourable Attorney did, another member of your family, your rescue dog, named before he came to your family, Wallace. So I think his full name is Wallace Wallace.

This story involves some subject matter not usually canvassed in a ceremonial speech. I’ve consulted widely including with one of your colleagues on the Bench and concluded that despite the unusual subject matter I should and perhaps am duty bound to address this story.

One weekend at the Tribunal you took Wallace Wallace to your Chambers and the product of your exertions that weekend was a characteristically detailed and well-reasoned decision.

Unknown to you, Wallace Wallace had also been exerting himself. The product of his exertion was more fragrant and deposited directly in front of Judge Parry’s room. When you came to the Tribunal the following day the rooms were in lockdown and subject to an intense police investigation. The working theory was that the exertion was from

a human as some sort of sinister and sadistic threat. Your Honour was mortified. Legend has it that you were comforted by Judge Parry who offered a reassuring hug.

Your Honours, the Society welcomes the appointments of your Honours Judge MacLean and Judge Wallace and wishes your Honours every success in your continued contributions to the administration of justice in this State.

SLEIGHT CJDC: Thank you, Mr van Hattem.

Yes, Mr Davies?

DAVIES, MR: May it please the Court.

On behalf of Western Australian Bar Association, may I present our compliments and congratulations on the occasion of your Honour’s appointment as judges of this Court. I wish to associate the Bar Association with each and all of the complimentary remarks that have fallen from others.

Your Honour Judge MacLean is most eminently qualified for this appointment having practised as a lawyer in this State for some 30 years. In the period since 1990 your Honour practised as a solicitor and did so in each of the facets in which solicitors practice. Your Honour practised in a large commercial law firm, in smaller boutique firms, indeed one with the Attorney-General, as a sole practitioner and as a partnership in your own firm.

Your Honour in addition to that private work has practised both as a solicitor with the Aboriginal Legal Service and as a prosecutor with the Office of the DPP. After that 18 years of practice as a solicitor your Honour joined the Bar and practised as a barrister from 2008 until 2015 in each of Francis Burt Chambers and Albert Wolff Chambers. Your Honour then served as a member of the State Administrative Tribunal from 2015 to

LEAVING A

2018 and then as a Magistrate until your Honour’s elevation to this Court.

Now, there can scarcely be within the profession any other lawyer with that remarkable breadth of experience in all of the various forms of practice.

Consistently with that breadth of experience your Honour has acted in an extraordinarily broad range of matters.

The nature of your Honour’s career is that you have been exposed to the small matters all the way through to very difficult and challenging matters. All of that places your Honour in an obvious position for appointment to this Court and they mean that your Honour brings a very broad perspective on your Honour’s appointment to the Court.

Now something has been made of your Honour’s heritage and properly so.

That is a matter that also gives your Honour a particular perspective. Your Honour is an Aboriginal man who has had a distinguished career within the professions and has now risen to the level of this appointment.

And your Honour has done so in your Honour’s typical quiet and unassuming manner as if the entire process was effortless, but all of what must have been involved in that process is not something to be underestimated. There’s an additional level of complexity that your Honour has no doubt dealt with and it arises from the fact that your Honour can pass as a man who’s not of Aboriginal heritage and that indeed has put your Honour in situations of complexity including two matters that are worth mentioning.

One was when your Honour in dealing with a Native Title matter entered onto Aboriginal land and was berated by elders for not seeking permission them, of course, not realising your Honour’s heritage. But another example that befell your Honour which really is sort

LASTING LASTING LEGACY LEGACY

HOMELESS

WILL HELP

DOGS

IN WA

17

of an indictment I suppose on our society which was an occasion when your Honour was in a pub drinking with some other Aboriginal men and there were in the pub some people who were determined to attack an Aboriginal man on that night.

And those men followed your Honour and set upon your Honour and attacked your Honour. In the course of doing so, this being quite dark, at some point the assailants formed the view they’d made a mistake and they’d attacked a man who was not Aboriginal and then stopped and apologised and explained that they had in fact intended to attack an Aboriginal and a mistake had been made. Those two matters, the second one in particular illustrate that an additional complexity that must have been involved in your Honour’s rise to the height to which your Honour has risen.

Can I turn then to your Honour Judge Wallace? Your Honour has also had an extremely distinguished career in the legal profession commencing in working at the very largest of commercial law firms. Your Honour served then with great distinction on the State Administrative Tribunal. That is a tribunal that is of considerable significance dealing as it does with matters of great importance to the parties in that tribunal. Within that tribunal your Honour displayed considerable skill, notable skill in the area of mediation.

Your Honour was known to be an emphatic and robust mediator who gave the parties insight into the realities of their case and did so with sensitivity.

In addition to that legal career, your Honour has been and remains a loving and engaging parent to your Honour’s three children. Your Honour has with skill navigated the difficult path of parenthood while continuing to give a significant contribution to the legal profession, have a meaningful career as a lawyer and more latterly a significant contribution to the administration of justice. Your Honour’s appointment rightly recognises your Honour’s experience and capacity and affords to our community a further opportunity to benefit from your Honour’s service.

The appointment of your Honour Judge Wallace and your Honour Judge MacLean was met with great pleasure and universal acclamation within the profession. On behalf of the Bar Association we welcome each of your Honours’ appointments and have no doubt at all that each of your Honours will serve with distinction as judges of this Court.

18 | BRIEF MARCH 2020

May it please.

whole range of people.

SLEIGHT CJDC: Yes. Thank you, Mr Davies.

Likewise, the range of penalties will be broader. I don’t yet know whether I will be bold enough should the occasion arise when I will ask your Honour to impose a suspension from practice instead of some more severe sort of penalty. Now what others say about your Honour reveals the esteem with which you are held. One colleague expressed disappointment at the timing of your appointment to this Bench, saying that they would have liked you to preside over a particular mediation in which they were involved. “She was great”, was the explanation given.

Yes, Mr Elliott?

ELLIOTT, MR: As the Court pleases.

It’s a privilege to stand here before this Court on the occasion of your Honours’ welcome to the Court and to address the Court on behalf of members of the Criminal Lawyers Association and to offer our congratulations to each of you upon your respective appointments.

I suspect that by the time the fourth speaker comes along everyone on the Bench and in the gallery is keen to hear from your Honours yourselves and so I feel some pressure to be mercifully short. Much has already been said about your past and repetition serves no useful purpose.

I don’t intend to touch upon or detail the substantial contribution which your Honours have already made to legal practise, but I do wish to acknowledge that you have done so. Suffice to say the Criminal Lawyers Association is confident that your Honours have the qualities which the community expects of those appointed to the high office of judge. Your Honours may not appreciate that when it comes to addresses of this nature those who give speeches are obligated to protect their sources. Under no circumstances will I either now or at any time in the future divulge mine.

However, just in case the content gives the game away I do seek and wish to be heard upon the possibility of a certificate under section 11 of the Evidence Act to protect my sources from having my words used against them. I appreciate that section 11 may be an imperfect device to achieve that object, but you will both have many years on the Bench to explore the nuances and limits of the Evidence Act, the Criminal Procedure Act, the Criminal Investigation Act, the Criminal Code, et cetera, et cetera, et cetera.

May I reverse the order and begin with your Honour Judge Wallace? People may wonder whether your Honour’s new role will be something of an alien landscape when you come to preside in criminal trials. I did some research. When one thinks about your time as a senior member in the tribunal, particularly in its vocational jurisdiction you have had ample exposure to cases involving sex, drugs and dishonesty. The differences in your new role will be that the people who appear before you won’t be doctors, lawyers, veterinary surgeons, pharmacists and the like. They will be a

There was another who I pressed to give up some dirt who glibly responded, “There isn’t any”. They obviously didn’t know about Wallace Wallace. There is accordingly in my address an absence of anecdotes about your Honour Judge Wallace. There was, however, no such hesitation when it came to Judge MacLean and that’s precisely why I sought a section 11 certificate earlier.

It’s been suggested to me that your Honour’s devotion to the pioneer glam metal band Kiss says a lot about your well-rounded approach to things. As someone who missed Judge Lonsdale’s welcome ceremony because I was on the Kiss Cruise, I can only agree that this speaks well of your judgment. I suspect that an accused who appears before you wearing an Ace Frehley T-shirt might fare better before you than they would before most of your brethren.

It's been said that your Honour has no sporting interests, inclination or even a basic understanding of the rules of most games. In contrast, the Criminal Lawyers Association has every expectation that you will know all the rules when it comes to your new role. Likewise, in contrast, it's said you love Italian fashion and the 1990s Italian soccer team, particularly Roberto Baggio and this despite your otherwise universal incomprehension of all things sporting.

Judges of this Court commonly sit in circuit districts. This is an important function of the Court. Communities need to see justice at work. I am told enthusiastically that you're the only person in history – not living history, in history – to wear a classic Italian suit in Marble Bar. Apparently that earned you some renown in the local area which persists even today. I wasn't brave enough to ask about the circumstances in which you chose to wear such attire in Marble Bar, what the temperature was, where you did it, but can't help but notice that it's very

close to the Mulga Downs Station with which you have a kinship connection.

It should be apparent at this point that there seems to be a greater willingness in the criminal law community to give helpful insights into the characteristics of a new judge. I can't really be sure whether the following will be helpful to counsel who appear before you on sentencing for their clients but I'll quote it verbatim all the same.

On a micro level you are said to be an unreconstructed 1970s communist. I don't quite know what that means but it sounds good. On a micro level in relation to specific issues I pause here to say unfortunately those issues weren't identified. Apparently you sit just to the right of Genghis Khan on a horse just before the Khan embarked on a border raid into China. Presumably, if that was the case or is the case, you were wearing an Italian suit at the time.

Despite that analysis of your Honour any way you slice it you are described as one of the most fair-minded people one could meet. In each case your Honour's new role will fit you like a glove. The Criminal Lawyers Association has great expectations from these fine appointments and is confident that each of you will bring to the Bench that mix of measure, practical reality and compassion that your past histories indicate and we look forward to appearing before each of you in due course. May it please the Court.

SLEIGHT CJDC: Thank you, Mr Elliott.

Yes, Judge MacLean?

MacLEAN DCJ: Thank you. I'd like to thank all of the speakers who have been so kind and have taken the time to prepare for and to attend at this morning's event. I'd also like to thank his Honour the Chief Judge for making this Court available and for making this event possible.

I'd also like to acknowledge and thank the Chief Justice for taking the time to attend today. I've been fortunate to work with the Chief Justice when he was in practice and as a leader of the Bar his Honour was kind enough to support me at the Bar. His Honour was senior counsel for a large miner in Native Title litigation in which my family was involved and together with judgment Judge Quail was counsel in the coronial inquiry arising from the tragic death of Miss Dhu. I'm grateful to his Honour and I think that I can without too much selfaggrandisement describe his Honour as

a friend, as well as a leader and I'm very grateful that he's taken the time to attend here today.

I would also like to thank each of the attendees who have taken the time out of their busy lives and practices to attend also. To each of you that I've invited I'm indebted to you and I wanted to reflect that by inviting you, although I've not missed the irony that I'm further obliged to you by way of your good graces in attending today.

I would also like to specifically thank the Attorney-General for his faith and confidence in recommending my appointment. I've had the privilege of knowing the Attorney since the early 1990s when I was Articled at Kott Gunning thanks to the kindness of Laurie James and Nick Tolcon.

The Attorney at the time was coordinating and managing a team of solicitors and counsel who were representing people who were called to give evidence at the WA Inc Royal Commission. The role required the Attorney to manage three sitting rooms which involved very many clients in multiple terms of reference while appearing as counsel himself, (indistinct) with counsel assisting, managing Queen's Counsel, both local and Eastern States based, overseeing the solicitors and an Article clerk, me, who together made up the team.

In spite of all of this and the consequent pressure the only time the Attorney lost his cool was when I, entrusted with the dry cleaning, one job, collect two suits, bring one of them to the hearing rooms, mixed a pinstripe bottom with a pinstripe top.

The Attorney who has an excellent eye spotting inconsistencies of witness's evidence and statements and recall also proved to have an excellent idea for spotting pinstripes that didn't quite match. My error was spotted at once outside hearing room 2, level 15 with characteristic passion.

Following the Royal Commission and surviving the dry-cleaning mishap, I worked with the Attorney when he was in practice at 524 Hay Street. That was a marvellous experience for me and it enabled me to meet and work with the great Brian Singleton QC who, along with Duncan McGrath and Bob Richardson, I would have loved to have thanked today for their friendship and support and for their examples of living life to the fullest.

524 was a marvellous place to be. In the mornings the tiny elevator would open and I would see flanks of counsel

that would include Singleton, RobertSmith QC, either of the O'Briens, Wager, Quigley, Alex Shand QC, Mark Gunning, Bill Harris, the Patrician H.J. Wisbey or the great Ken Allen who might tell me affectionately â&#x20AC;&#x201C; and it was affectionately â&#x20AC;&#x201C; as he passed by that I looked like a girl or a Scandinavian Aborigine and then without any further ado went on to the serious business of conducting negotiations and litigation in this Court.

The Attorney has lost none of his skill in managing people and impressions, those skills learnt long before the WA Inc Royal Commission, and this is most stridently articulated in his skilful positioning of my appointment to coincident with the departures of their Honours Judge O'Neal and Judge Scott.

Due to the Attorney's masterly strategy mercifully I can never ever be described as replacing either one of them, an impossible task and one which would have appropriately reduced me to a judicial minnowship and for that kindness alone I will be indebted to the attorney for all of my judicial life.

The most wonderful thing about today's event is the opportunity to thank collectively and publicly some of the many people who have supported, encouraged and challenged me in the course of my career. In the very brief time that I have sat on this Court I have received more support and encouragement than I could have imagined and, Courtesy of his Honour Judge Stavrianou, a little challengement and I'm also heartened and grateful for that.

Principally amongst the people that I want to thank today are my parents who I'm very lucky are here today. My mother was a charge nurse and a boss, I think, all of her life. Her nickname in the Pilbara was Nyumbli, which means boss and was entirely appropriate. Mum has always encouraged and supported my brothers and me and the three of us became lawyers and that in part is testament to her support and ambition, as much as it is to our pliability so thank you, mum.

My father, apart from being a very patient and devoted listener, has by example done his best to instil in me all of the good things about an Irish Catholic background and that is compassion and gratitude. I'm not much of a believer but I am grateful to have been exposed to those values and the examples of them that my father gave me.

I must also acknowledge my wife Rhianna, my daughters Zachia, Kalila,

19

Thara and Jana. Thara and Jana are not here today which is a pity because at the ages of six and three respectively they would have clearly made their roving presence felt.

Legal practice is rewarding for many reasons, for those who are engaged in it but it’s sometimes difficult for those who are caught in the aftermath or the aftershock of it. It’s – they’re unwitting witnesses to a practitioner’s self-proclaimed triumphs and often suppressed failures. Rihanna, Zachia and Kalila have certainly endured the lows of being dependent upon an occasionally underemployed, sometimes overemployed sole practitioner and an often preoccupied and easily distracted and impatient decision-maker.

I'm grateful to each of you for your forbearance and patience and hope that you may be able to extend it for a little time yet. And while the sentiment is entirely mine, I’m obliged to her Honour Judge Wallace for the words of this part of my speech. Love is all. And that includes you, Teddy Dhu, the elder of our great family, the Dhu family from the Pilbara.

I do also want to acknowledge and congratulate Judge Wallace. I spent three very happy years courtesy of Judge Christopher Kendall suggesting that I apply as a fulltime member of the State Administrative Tribunal and I'm of course grateful to Curthoys J for employing me in that role and for giving me an introduction to the profession of decision-making.

Much has been said about my Aboriginality and I will digress to confirm, Mr Davies SC thoughtful tale and on an occasion where I chose to take the attitude adopted by St Paul when he was set upon in a synagogue and proclaimed his Roman citizenship in order to spare him from the baying mob.

In my similar experience, notwithstanding my sincere pride in my Aboriginal descent, at the time that I was set upon by a couple of self-proclaimed knifewielding Aryans who then apologised for attacking another Aryan, I was reluctant and lacked the courage in my convictions following St Paul’s great examples to declare with pride my obvious Aboriginality but I’m obliged to Mr Davies for careful comments and appreciate the sentiment that you expressed those with.

But insofar as my Aboriginality goes and being the first appointment to this Court, might I say that I will not be the last but for the moment it is a great privilege

20 | BRIEF MARCH 2020

to be the first of many. I can say, “The first,” with great confidence given the number of lawyers in my own family, my brothers, members of the Dhu family who have studied or practised law and are reflective themselves of a wider involvement of Aboriginal people in legal practice in this State.

As exemplified by Beau Hanbury, Michael Lundberg, Andrew Matthews, Teresa Farmer, Shahz Rind, Robyn Ninyette and Jarrah Summerville. And further afield in the Eastern States by Tony McAvoy SC of the Sydney Bar and Magistrate Louise Taylor of the Australian Capital Territory Magistrates Court.

Obviously not all of the people I’ve named aspire to appointment to this or to any other Court but they all do reflect the deep and positive engagement Aboriginal people have with the law in this country. It is an enduring testament to Aboriginal people that they have from the outset persistently sought to negotiate peaceably a place in this country. It is also to the enduring credit to the quality of Australian life and society that we’ve been able to do so.

Insofar as Aboriginality and decisionmaking goes, I cannot do better than quote Sotomayor J of the United States Supreme Court. Her Honour said, “I want to state upfront unequivocally and without doubt I do not believe that any ethnic, racial or gender group has an advantage in sound judging.”

And further, her Honour continued, “I do believe every person has an equal opportunity to be a good and wise judge regardless of their background or life experience.”

I endorse and adopt those comments and as a catholic communist I’m conscious of the need for equal opportunity for each of us to have an opportunity to have a good and wise judge irrespective of background, race or life experience.

It’s certainly true of this Court that the judges do come from a wide background of experiences and personalities and I hope to be another one of them. In saying that, however, I do note with great respect her Honour Magistrate Louise Taylor’s observations that you can’t be what you can’t see and in that vein, I pray that I can by way of an example to Indigenous people in this State, add to the credit of this Honourable Court.

Thank you.

SLEIGHT CJDC: Thank you, Judge MacLean.

Yes, Judge Wallace?

WALLACE DCJ: Chief Judge Sleight, Quinlan CJ, Mr Attorney, Mr Solicitor, members of this Court and other Courts past and present, official guests, members of the State Administrative Tribunal past and present, members of the legal professional, family and friends, thank you very much for taking the time to attend this morning and make this a special and memorable occasion for me.

I also want to thank Mr Attorney, Mr van Hattem, Mr Davies SC and Mr Elliott for the very kind and flattering words which I found very humbling. Mr van Hattem, as you acknowledged, I am a member of the Law Society of Western Australia and I’ve enjoyed a long and fruitful relationship with the Society over many years.

I’ve also been a big supporter of the Piddington Society which you founded some years ago and which is aimed at fostering collegiality in the legal profession. I believe that the work of both organisations is incredibly important to the legal professional and I’ll continue to be committed to supporting you in those roles.

Mr Davies SC, as you know, I’m also a big supporter of the Bar Association and indebted to so many at the Bar for their excellence in advocacy and the dedicated service they provide to the community and to the judiciary.

I presided on many a complex case where I’ve sighed a sigh of relief when realising that I would be ably assisted by counsel. The work that you do with the Bar Association is unrelenting but very important and I admire you for that.

Mr Elliott, I’m already very well aware of the significant role that the Criminal Lawyers’ Association has within the jurisdiction of criminal law which is a particularly challenging one giving the relenting volume of the work and the nature of the work. The support networking and professional development opportunities that your association offers its members is incredibly important and I hope that I am able to contribute in some small way to your association during my time with the Court.

I’d also like to acknowledge the important role of Women Lawyers of which I am a member. The work that they do is essential in supporting women within the law and facilitating and fostering their ability to thrive and advance in the legal professional. I’m grateful to Women Lawyers for their continued support of me personally and I wish to acknowledge both the current president, Clare Thompson, and the past

president, Charmaine Tsang, who are both individually inspirational women in the law.

trepidation that I step forward to take your place and I’ll certainly try my best to measure up.

I feel very honoured and privileged to be appointed to this Court and to be given the opportunity to continue to serve the community through the administration of justice. I have received overwhelming support from my fellow judges and I’m incredibly grateful to them for their kindness and generosity shown to me thus far. In this regard I note that I received a number of text messages from my fellow judges when they were informed of my appointment.

I want to acknowledge the wonderful support and encouragement I’ve received from those at the Supreme Court. His Honour Quinlan CJ, a number of the justices, the registrars including Principal Registrar Strk have offered their congratulations and support to me and they’ve all said I can call upon them at any time. Now, I felt it was important to formally put that on the record as now a number of you are programmed into my speed dial so expect my call.

One text was from his Honour Judge Birmingham. He warmly welcomed me as his new sister. I tried to explain this unusual familial concept to my own children that I was moving to a workplace where effectively my colleagues would be my family members.

Their immediate response was, “Mum, are you joining a cult?” Not quite.

Just a few words about my career. I enjoyed my time at law school and I also completed a Masters of Law as has been mentioned, majoring in intellectual property. Given my desire to work in the IP area, I began my legal career at Allen Allen & Hemsley as it then was in Sydney.

Chief Judge Sleight, I also want to thank you for the support and generosity that you’ve shown to me. You are renowned for fostering and maintaining a collegiate, inclusive and positive environment here at the Court which I can certainly now attest to. You are also a big advocate for mental health wellbeing and mindfulness within the judicial community and you’ve encouraged me to embrace this by suggesting that I join you and some of my fellow judges at weekly yoga. Of the many challenges I knew that I would be facing at the Court, attempting the downward facing dog with the chief wasn’t something that had crossed my mind.

My retiring judge whose shoes I must fill, Judge O’Neal, thank you for your kind support of me as I start my journey.

You’ve already given me a lot of wise counsel for which I’m grateful. You leave a large hole to fill and it’s with some

In total I spent eight years of my legal career in Sydney before moving permanently back to Perth in 2005. I was extremely lucky in my legal practise in Sydney to always find myself surrounded by the sharpest of legal minds. I was involved in High Court special leave applications early in my career in which Bret Walker SC was briefed. I was also trained by the late Sir Laurence Street as a mediator. I remember one large mediation that I did with Sir Laurence.

It was the worst case of aviation food poisoning in Australasia certainly at the time.

Sir Laurence told me the night before the mediation as he was apt to do to ask me to ensure that the client prepared a detailed chronology of the day that the terrible events took place from receipt of the first call informing of the death of a passenger on the flight. Sir Laurence told me that this chronology and speech had to be brutal, honest, raw and emotive

and that the success of the mediation rested on this one speech. Of course, Sir Laurence was right as he always is and the mediation settled as many did that involved him.

I also had the immense pleasure and privilege of working on many complex contractual disputes with Professor John Carter who’s obviously a legend in the law. We shared then and continue to share a mutual love of contract law and as sad as this may sound to many of you, I look back fondly at the many discussions I had with Professor Carter on the interplay between contract law, equity, tort and restitution. Whilst my fellow judges may fear the Court of Appeal and what they have to say about their judgments, I’ll lie awake at night worrying what Professor Carter will have to say about mine.

My years in Perth were spent with Freehills as it was then known primarily working with Steven Penglis SC. I also had the pleasure of working closely with Registrar Natalie Whitby. We were part of a fabulous team of lawyers who were dedicated to providing a service of excellence to our clients. Steven was also the pro bono partner of the firm during those years and that allowed me to be involved in a number of significant pro bono matters which I really enjoyed.

I recall one pro bono matter where I was acting for a group of elderly clients who were being evicted from their homes.

It was the first time I held a client conference where at the end the clients gave me a standing ovation. Funnily enough, the commercial clients never felt quite compelled to react in the same way. But I have to say there’s no greater feeling than that of making a real difference to everyday people going through to traumatic events in their lives who would otherwise have had no recourse. I want to thank Steven and Natalie who both made the time to

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

How are we going to achieve this?

Cancer research

Cancer services and support

Cancer prevention

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

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

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

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

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

21

be here this morning for many years of friendship and support.

As has been acknowledged, I come to the Court with eight-and-a-half years of decision-making experience at the State Administrative Tribunal. It was with a heavy heart that I left the tribunal.

The work of the tribunal is rich and varied and challenging. The tribunal has jurisdiction in respect of over 150 pieces of legislation. It’s a specialist tribunal, so therefore it has members who are legally qualified and non-legally qualified. In my view, that’s a key part of the success of the tribunal.

I worked across many areas of jurisdiction during my time including human rights, building, commercial and civil and the vocational area. I often heard matters and mediated matters together with sessional specialist members. Many of them that I’ve had the pleasure of working with are here today and I wish to acknowledge you and express my thanks for your friendship and support and the dedication to providing a service of the highest standard to the community. I’ve learned an incredible amount from each of you and made better decisions as a result of your input.

I want to thank the staff of the tribunal who are extremely dedicated and hardworking people with a real passion for the work of the tribunal. I want to also mention my own staff, Mary-Joan Fernandez and Karen Ross who’s now my associate. If I could clone each of you, I certainly would. I also wish to thank and acknowledge the fulltime members I’ve worked with over many years and in particular the senior members, Maurice Spillane, Clive Raymond, David Aitken and Lisa Eddy.

Your friendship and support always meant a lot to me.

In addition, I must acknowledge the judges of the tribunal who invested considerable time in me and mentored and guided me at various stages of my career. In particular, I want to acknowledge the Honourable Chaney J who’s here today. I almost don’t need to say anything at all about Chaney J because he’s so well-known, wellrespected and highly regarded. His Honour has been a mentor to me for many years. It was Chaney J who first appointed me as a member of the tribunal and by doing so changed the course of my destiny. I learned the foundations of decision-making from his Honour and what it means to be a judicial officer.

His Honour has huge integrity and 22 | BRIEF MARCH 2020

professionalism and believes in justice for all and they were never words his Honour spoke. He lived their meaning.

Chaney J introduced me to the importance of judicial temperament. In what you do, what you say and how you say it when you have the prime seat in the house determines the strength of the voice that others have in your presence.

I wish to thank you, Chaney J, for the generosity of your mentoring, guidance, support and friendship. It has been and will continue to be invaluable to me.

I also had the pleasure during my time with the tribunal of working with Curthoys J and I’m grateful to his Honour for the time that he also invested in me.

His Honour is someone who takes on a massive workload without blinking and is incredibly supportive of those around him. Curthoys J is also passionate about exploring the ways within the justice system providing a better service to the community, particularly through innovative, technologically savvy ideas.

Online applications at the tribunal were developed and implemented during his Honour’s time.

I enjoyed having the opportunity of working on that project and many others during the time that I worked with his Honour. I’m grateful to his Honour for the many opportunities of professional growth that he offered to me and for his ongoing support and friendship. I also want to acknowledge their Honours Judge Sharp and Judge Parry being the Deputy Presidents of the tribunal. You’ve both always been very approachable, kind and supportive of me. In particular, Judge Sharp, thank you for always knowing what to say when I needed to hear it whatever the circumstance. You have great wit and compassion and I was the lucky recipient of both from you on many an occasion.

I also want to mention her Honour Pritchard J. Pritchard J has been a mentor to me. Her Honour is what I call super human, so at times having her as a mentor can be a little demoralising and damaging to one’s own ego. What her Honour achieves on a daily basis would be impossible for us to replicate, but she does it with relative ease. Her Honour, of course, is hugely accomplished and at the moment is juggling both her Court of Appeal role as well as President of the tribunal. I’ve learnt a lot from her Honour about integrity, respect, due process and managing complex disputes.

Pritchard J is a huge advocate for women in the law and a mentor to many.

She’s incredibly gracious and humble and I’m privileged to call her my friend.

Lastly I want to acknowledge my family and my friends. Firstly, in relation to my friends, I count myself incredibly lucky to be surrounded by wonderful, supportive and talented people who share the same values as I do. You have all believed in me as I believe in you. Thank you for sharing this moment with me.

In particular, I want to mention Cameron Henderson and David Bailey who arrived today for this special occasion and, of course, Hayley Cormann, all longterm dear friends, all three of whom are dedicated and accomplished members of the Bar. I also want to mention three inspirational women in the law who themselves are in challenging, decisionmaking roles and who are here to support me. Renea Capararo, Principal Registrar Strk and Dr Michelle Evans.

There are many others here today both within the legal profession and out of it who are significant to me, far too many to individually name, but please know I’m grateful to each and every one of you.

I’ve saved my family until last because these are difficult sentiments to express at a time like this. I want to firstly acknowledge my parents and my brother. I was brought up in a loving and supportive family environment with parents who taught me that any dream is possible no matter how big or how small. They showed blind faith in me and my ability and are my champions in life.

My mother is an extremely strong and positive role model. Her depth of wisdom and compassion are without boundary.

Thank you for the many sacrifices you made to ensure that I had every opportunity.

Today I also have my husband Shane and my three children Zach, Luca and Chance. Shane’s my best friend and the one that keeps me grounded and he’s my biggest supporter. It’s his hopes and aspirations for me that have brought me to this point. Zachary, Luca and Chance, you bring so much joy into my life. I love you very much and I’m incredibly proud to be your mother and that will be my greatest achievement always.

Congratulations to Judge MacLean and thank you everyone for your time today.

SLEIGHT CJDC: Thank you, Judge Wallace. That completes this special sitting. The Court will now adjourn.

The Equitable Briefing Policy Three Years On

By Sara Pearson Solicitor, Consumer Credit Legal Service (WA) Inc.

In June 2016, the Law Council of Australia rolled out its Equitable Briefing Policy.1 Three years on and while many are disappointed by the results,2 the numbers do show movement.

The Policy’s intent is to "drive cultural change within the legal profession, support the progression and retention of women barristers, and address the significant pay gap and underrepresentation of women in the superior courts".3 The need for the Policy is well accepted.

The number of women entering the legal profession continues to grow. The most recent National Profile of Solicitors, released in May 2019, shows that as of June 2018, women comprise 52% of all solicitors in Australia, and men 48%.4 Western Australia is the only state where the gender balance is equal, in all other states, women outnumber men.5 Despite this, women make up less than one third of the Australian Bar.6 Not only are women proportionally under represented at the bar, the briefs between men and women differ. On 4 December 2009, the Law Council published the 2009 Court Appearance Survey.7 The study considered who appeared before Australian superior courts, namely the state/territory Supreme Courts and Courts of Appeal, the Federal Court of Australia, the Family Court of Australia, the Family Court of Western Australia and the High Court of Australia. Nationally, there were three main findings of the survey:8 1. Female barristers appear in statistically the same proportions as

they exist at the Bar; 2. on an average, male barristers appear for significantly longer periods of time when compared to female barristers (3.8 hours for males and 2.8 hours for females); and 3. When compared to other entities such as government agencies, private law firms are more likely to brief male barristers.

In order to reach those targets, persons briefing barristers (or ‘briefers’) are asked to sign up to the Policy and commit to: 1. make all reasonable endeavours to brief or select women barristers with relevant seniority and expertise, experience or interest in the relevant practice area; 2

by 1 July 2018: a

brief or select senior women barristers accounting for at least 20 percent of all briefs and/or 20 percent of the value of all brief fees paid to senior barristers;

b

brief or select junior women barristers accounting for at least 30 percent of all briefs and/or 30 percent of the value of all brief fees paid to junior barristers; Noting the need to adjust these targets to reflect local conditions; and

In Western Australia specifically:9 •

197 barristers were practising in WA, 166 were male (84%) and 31 (16%) were female;

•

of those, 34 male and 3 female barristers were SCs/QCs and 132 male and 28 female barristers were Junior Counsel;

•

there was no significant difference between survey appearance rates and the actual Bar populations of both male and female barristers; and

•

the difference in appearance time in WA was statistically significant. The average male appearance time was 28% longer than that of females.

How the Policy works The Policy seeks to address this disparity. The Policy sets targets, with the overall aim of women barristers being briefed in at least 30% of all matters and receiving 30% of the value of all brief fees by 2020.10 The ‘magical number’ of 30% being the percentage of women practising barristers in Australia in 2016.11

3

provide a confidential report…each year with respect to the measures taken to implement these targets.

The second annual report for the 20172018 financial year was released in October 2019. The Report states that: •

The interim target for briefs to junior women barristers of 30% was met.

•

The interim target for briefs to senior women barristers of 20% was not met. However, it did increase from 12% to 16% between the 20162017 and 2017-2018 financial years.

•

Female barristers received 25% and male barristers 75% of the total 23

23,170 briefs reported by briefing entities.

•

Female barristers received $85,286,520 or 17% and male barristers $425,154,123 or 83% of the total $510,440,643 in fees reported by briefing entities.

The Policy has been widely accepted and endorsed by law societies and bar associations around Australia. Our own Law Society of Western Australia is a signatory to the Policy, adopting it in place of its own equitable briefing, which it had from 2004. A full list of persons who have adopted the Policy is published by the Law Council and can be found on the Law Council’s website.12 As at 27 July 2018 ‘over 350 organisations and individuals in all’ signed up to the Policy.13 While this sounds promising, the Law Council only relied on 44 reports for the 2017-2018 Report.

An issue in the effectiveness of the Policy ‘driving’ change in the profession is that the Policy does not make reporting, or targets mandatory.14 Many consider that this is a vital flaw in the Policy.15 The lack of mandatory targets allows for briefers to appear supportive but not be held to account if briefers take no action. The difficulty with mandatory targets is that the clients’ right to choose their counsel should not be restricted.16 Another issue with the Policy is that when briefers provide the Law Council with their annual report on briefing practices and progress, that information is confidential.17 Once reports have been submitted, the Law Council collates the data provided and produces a final report of figures for publication.18 While in order for progress to be mapped, identifying information is not necessary, ‘naming and shaming’ could incentivise briefers to reach their goals.

a challenge where briefing organisations are not ripe for change. The Fair Work Ombudsman is an excellent example of a briefer embracing the policy. The Fairwork Ombudsman exceeded the Policy’s target in 2016-2017. In the 2016-17 financial year the Fair Work Ombudsman briefed female counsel 59 times and male counsel 35 times.

Female barristers received 58% of the agency’s total spend on barristers. At that time, the agency’s in-house legal team comprised 43 female lawyers and 12 male lawyers.19 It seems likely that having an inhouse legal team comprised predominantly of women influenced the FairWork Ombudsman’s success in surpassing the Policy targets.

A survey of women barristers in the Western Australia Bar Association conducted for this article shows women barristers are hopeful of the impact the Policy will have. Out of the 27 respondents 19 said that the policy was somewhat helpful in driving equality within the professions; and 16 out of 27 respondents have experienced some amount of impact since the introduction of the Policy.

While signing up to the Policy is simple, acting on the intent of the Policy may be 24 | BRIEF MARCH 2020

Endnotes 1

2

3

4

5 6 7

8 9

10 11

Has the Policy affected your practice?

Has the Policy affected your practice?

12

Has the Policy affected your practice?

13

The Policy seeks to strike a balance between getting as many entities to sign up (and thus not making the commitments too onerous) and striving to make a tangible impact.

There is value to be had in briefers considering the Policy and signing up. Doing so acknowledges the issue; and hopefully, creates or increases the discourse within the briefing entity about unconscious briefing practices.

In a survey of women barristers who are members of the Western Australia Bar Association, this was acknowledged as a benefit to the Policy, with two out of 27 survey respondents noting that the Policy has generated useful discussion on bias.

While the Policy is not perfect, it is an essential step in the direction of gender equality. Even the small step of creating conversations on bias can have an impact. The data published in the Report is heartening, and solid growth appears to be made. An updated national study on gender bias in briefing practices would allow a more accurate picture of the current levels of bias within the profession.

14 15 16 17 18 19

If so, how?

If so, how?

Law Council of Australia, ‘Equitable Briefing Policy’ (June 2016) (Policy) https://www.lawcouncil.asn.au/ files/pdf/policy-guideline/National_Model_Gender_ Equitable_Briefing_Policy_updatedversion.pdf.

Jerome Doraisamy, ‘’More work needs to be done’: Barristers respond to briefing gender disparity’, Lawyers Weekly (online), 14 October 2019 <https://www.lawyersweekly.com.au/ wig-chamber/26701-more-work-needs-to-bedone-barristers-respond-to-briefing-genderdisparity?utm_source=WigandChamber&utm_ campaign=14_10_19&utm_medium=email&utm_ content=1>.

Law Council of Australia, Equitable Briefing Policy (June 2016) <https://www.lawcouncil.asn.au/policyagenda/advancing-the-profession/equal-opportunitiesin-the-law/national-model-gender-equitable-briefingpolicy>.

Urbis, Prepared for the Law Society of New South Wales on behalf of the Conference of Law Societies, ‘2018 National Profile of Solicitors’, (17 July 2019) p 7.

Ibid, p 8.

Law Council of Australia, ‘Equitable Briefing Policy Annual Report, 2017-2018 Financial Year’, p 8 (Report).

Law Council of Australia, ‘Beyond the Statistical Gap: 2009 Court Appearance Survey’ (4 December 2009) <https://www.lawcouncil.asn.au/policy-agenda/ advancing-the-profession/equal-opportunities-in-thelaw/court-appearance-survey>.

Ibid, p 7.

Law Council of Australia, ‘Beyond the Statistical Gap: 2009 Court Appearance Survey - Snapshot Western Australia’ (4 December 2009) <https://www. lawcouncil.asn.au/docs/3a9bab3b-242e-e711-80d2005056be66b1/2009-court-appearance-surveysnapshot-wa.pdf>.

Policy, p 2.

Fiona McLeod, ‘Disorder in the court: We need to address inequality in the legal world’, ABC News (Online) 8 July 2016 <https://www.abc.net.au/ news/2016-07-08/mcleod-why-we-need-to-addressinequality-in-the-legal-world/7576536>.

Law Council of Australia, Equitable Briefing Policy, Policy Agenda, Law Council of Australia <https:// www.lawcouncil.asn.au/policy-agenda/advancing-theprofession/equal-opportunities-in-the-law/nationalmodel-gender-equitable-briefing-policy>.

Law Council Of Australia, ‘A fairer future for women barristers, steps closer as Equitable Briefing Policy data released’ (Media Release, 27 July 2018) <https:// www.lawcouncil.asn.au/media/media-releases/a-fairerfuture-for-women-barristers-steps-closer-as-equitablebriefing-policy-data-released >.

Policy, p 5.

Above n. 11.

Policy, p 5.

Ibid.

Ibid.

Australian Government, Fair Work Ombudsman, ‘Fair Work Ombudsman continues to set the bar for gender equity in briefing practices’ (Media Release 24 October 2017) <https://www.fairwork.gov.au/about-us/newsand-media-releases/2017-media-releases/october2017/20171024-equitable-briefing>.

Phoenix Rising: Julia Gillard on Law and Life After Politics

By Kate Allman

This article was originally published in the Law Society of NSW’s member magazine LSJ.

Australia’s first and only female prime minister reflects on her short-lived legal career and tumultuous time in politics, as she looks to a brighter future for women in leadership.

As late as May 2010, Julia Gillard was laughing off the suggestion that she might become Australia’s first female leader of government.

“There’s more chance of me becoming the full-forward for the Dogs [Western Bulldogs AFL team] than there is any chance of a change in the Labor party,” she told reporters in Brisbane.

Rumours of a planned leadership challenge against then-Prime Minister Kevin Rudd had been circling in Canberra at the time. Just one month after Gillard made the comments, Rudd anticipated a leadership spill in the wake of declining popularity polls and resigned his post.

Gillard, who only three years earlier had claimed the title of Australia’s first female deputy prime minister, stepped up to become Rudd’s replacement. She was sworn in as Australia’s first – and, to this day, only – female Prime Minister on 24 June 2010.

(In relation to the Bulldogs comment – while Gillard never took the field for her beloved AFL team, she did become their number one ticket holder during their 2012 season).

Almost a decade on, Gillard declares she “could never have imagined” she would make it to the top of Australian politics. She shrugs off the grandeur of the achievement in a rare private interview at the International Bar Association Conference in Seoul.

“It wasn’t what I set out to do. I was part of a group of Labor women who wanted to change our political party, we wanted to get more women into politics,” she said.

“I did dream of being a woman in a Labor government, but I never dreamed of anything further than that.”

Gillard’s comments are tinged with a hint of the imposter syndrome that plagues many women thrust into positions of

power. But she is also realistic about the timing of her run into politics.

“I think from time to time about the Labor people who served in the Menzies era; they would have had political careers of the same length as mine and served every day in opposition,” she says.

“I think life is always a mixture of some luck, some circumstance, and then what you put into it. One of the variabilities of life is that two people who put in exactly the same amount can come out with very different outcomes.”

Gillard’s new gig It’s this very phenomenon – the variabilities life can offer seemingly identical candidates – that Gillard has been studying in her new role as Chair of the Global Institute for Women’s Leadership. The institute is Gillard’s brainchild; an idea that took shape when she completed a visiting professorship at King’s College London in 2016. The Institute launched in London with Gillard at the helm in April 2018, and in September 2019 the Australian National University came on board in partnership to set up a satellite office in Canberra.

25

Celebrity ambassadors like former US Secretary of State Hillary Clinton and popstar Rihanna have endorsed the Institute’s work. Gillard has toured the world with both; even striking up an unlikely friendship with Rihanna as they visited schools in Africa in 2017 to highlight the importance of education for young girls in developing countries.

(While the children might have been able to recite the words to most of Rihanna’s number-one hits, they didn’t instantly recognise Australia’s first female leader).

The Global Institute for Women’s leadership, Gillard explains, seeks to understand why women and men from the same backgrounds with the same potential often do not receive the same opportunities to become leaders. She says this applies to a huge spectrum of situations – from young girls being denied education in developing countries, to women being overlooked for promotion in corporate Australia.

“We are trying to answer the question – looking around the world – what is it that is preventing women coming through to leadership positions in equal numbers to men?” Gillard says.

“Often, it’s poverty, because girls are disproportionately affected. But on top of that, it’s gender stereotyping, early marriage, issues with violence, discrimination, sexual harassment and bullying.”

In Seoul to speak at the IBA conference’s showcase session on barriers to diversity in the legal profession, Gillard transfixes a formidable audience of highprofile lawyers from around the world, denouncing the prevalence and impact of bullying and sexual harassment in the global legal profession. Gillard wrote the foreword for the IBA report Us Too? Bullying and Sexual Harassment in the Legal Profession, published in May. “Our job at the Institute is to analyse those barriers and deepen the research about what most effectively gets them out of the way,” she said.

“A lot of research has been done already. But many countries and many occupations – including the law – are finding that while they have made some progress, they are nowhere near reaching equal numbers of women and men in leadership.”

The Us Too report published the results of a global survey involving almost 7,000 lawyers in 135 countries. The survey, the first of its kind in the world, found that one in two female lawyers and one in three men had been bullied at work. One in three female respondents said they had 26 | BRIEF MARCH 2020

been sexually harassed, compared to one in eight male respondents.

And while women are being admitted to the profession at higher rates than men, the proportion of women in partnership or board positions still hovers around 30 per cent, according to the Global Institute for Women’s Leadership.

We are trying to answer the question – looking around the world – what is it that is preventing women coming through to leadership positions in equal numbers to men?

Gillard, who worked as an industrial relations lawyer for eight years in the 1990s before turning to politics full time, has both personal and professional interests in breaking down barriers preventing women climbing to the top of the ladder in law.

Gillard lawyered in an era where men vastly outnumbered women in the workplace. Ever the exception to the rule, she made partner at just 29 years old in Slater + Gordon’s employment relations team (she shrugs this off as another “combination of luck and circumstance”).

It was an extraordinary achievement at a time when legal careers followed a strict hierarchy and structure.

Gillard says people worked “all the hours that a human being is capable of working”, and “there would have been no thought that lawyers could go part time”.

“It clearly wasn’t a structure that was capable of offering the flexibilities that [women] needed, and we increasingly need now,” she admits.

Gillard speaks glowingly of her time at Slater + Gordon. However, she reflects that many female peers in the profession were facing an uphill battle against gender-based bullying, harassment and discrimination.

“I think a lot of behaviours – and I’m not speaking specifically at Slater + Gordon but more generally in the law – were tolerated then that would not be tolerated now.”

Navigating glass labyrinths Today, Gillard speaks of the “glass labyrinths” of structures and attitudes preventing women from obtaining leadership positions. She shuns the term “glass ceiling” because it inaccurately reflects that women must smash through a single barrier – in what might be a violent act of feminist aggression – to reach the top.

“At the Global Institute for Women’s Leadership, we aren’t just talking about

a final, hard glass ceiling. We aren’t just talking about the journey from being deputy CEO to CEO, or Secretary of State to President, to use a recent example,” she says, with a wry nod to her former speaking circuit partner Hillary Clinton.

“We want to start back at the earliest parts of a woman’s life, education and career, and analyse where the woman might have had fewer opportunities than a man in the same position. We take that approach because so many organisations in different industries say, ‘We start off with 50/50 men and women at entry level, and we end up with a lot fewer in leadership.’ So, we have to understand every element of that journey as women work their way through.”

Of course, Gillard is no stranger to glass labyrinths. As the daughter of workingclass parents from South Australia, she defied the odds to graduate from both school and university in the 1980s. About 35 per cent of law students were women at the time, according to Australian university enrolment data, and very few made full-time careers out of law. But that didn’t stop Gillard graduating from the University of Melbourne in 1986 with a double degree in arts and law and making partner at Slater + Gordon in less than eight years. When she was elected to the Victorian seat of Lalor in 1998, women held just 14 per cent of Labor or Coalition seats in the House of Representatives.

And while the final “ceiling” on her journey to the prime ministership appeared to crack neatly rather than shatter (Rudd stepped aside and Gillard was the unopposed replacement), her journey through three years in leadership was messy. Nine years on, it’s hard not to cringe when Google brings up memories of the abuse she received while in office – plenty of which had a gendered angle.

Twitter, launched in Australia in 2006, had taken off in popularity and the 24hour news cycle churned out a relentless stream of extreme online trolling. Gillard was ridiculed for her red hair, nasal twang and “huge thighs”. Signs like “Ditch the Witch” and “Bob Brown’s Bitch” appeared at political rallies. 2GB broadcaster Alan Jones even suggested, when Gillard’s father died, that “the old man recently died a few weeks ago of shame”. He also encouraged the idea that the Prime Minister should be dumped “out to sea in a chaff bag”.

Gillard’s reaction culminated in her famous “misogyny speech”, in which she unleashed in Parliament and admonished then-opposition leader Tony Abbott for alleging sexism in the Labor Party. The ABC News clip of this 2012 speech has,

at the time of writing, been viewed more than 3.3 million times on YouTube.

about Malcolm Turnbull rarely alluded to the fact he was a man.

improved public image as a matter of timing.

“There were a set of things that came with being the first [woman prime minister],” reflects Gillard.

A poster child for women’s empowerment

“I think today there is a more receptive climate about listening to proposals for change,” she says.

“Now, people look back on those things and recognise that there was a sexist prism through which I was seen from time to time as Prime Minister. People look back on that and know that now – though they didn’t at the time. I think people see the unfairness more now.”

Gillard spoke to an international audience of lawyers about the importance of combating bullying and sexual harassment in the workplace.

Gillard points out many Australians had justifiable political reasons to dislike her.

In knocking off Rudd, she instigated the deeply unpopular trend of ousting sitting prime ministers. She also broke a key Labor election promise by introducing a carbon tax, she voted against a bill for same-sex marriage, and she lowered the Newstart allowance for thousands of welfare-dependant single parents.

But politics alone don’t explain why Gillard copped a disproportionate amount of commentary related to her gender.

Research by the Australian National University in 2016 found that 58 per cent of Australian media articles about Julia Gillard discussed her gender, and 44 per cent insinuated that her femininity was not prime ministerial. In contrast, articles

Gillard steps onto the stage in Seoul to rapturous applause. The room is packed to the rafters, people are standing at the back without chairs to watch the 27th Prime Minister of Australia speak.

Proceedings are even paused for 10 minutes when an onlooker faints due to the lack of air in the crowded room.

Like a phoenix (pardon the red analogy) rising from the ashes of a political career cut short, Gillard’s popularity has soared since leaving the Lodge. Her autobiography was the highest-selling political memoir in 2014 and she regularly sells out high-paying speaking gigs around the world.

The surge in gender discrimination awareness spurred by #MeToo has undoubtedly helped improve perceptions of female trailblazers like Gillard. Touring with Rihanna and Hillary Clinton probably helped. But she has also used her influence to advocate for important issues like mental health, discrimination, and violence against women – as Chair of Beyond Blue, Chair of the Global Institute for Education and, most recently, Chair of the Global Institute for Women’s Leadership.

It’s as if the world is finally catching up to the idea of women in leadership; just six years too late for Gillard. The legal profession has long paid lip-service to the idea of 50/50 proportions of women and men in leadership. How can we make that idea a reality sooner rather than later?

“If it was simple and the problems were the same everywhere, we would have solved this by now,” sighs Gillard.

“But I think there is strength in women reaching out to women and talking about these issues. There are many sources of good advice about proposals that make a difference – the research that the Institute is doing, what Chief Executive Women do, material published by the Sex Discrimination Commissioner and so on. It’s also about identifying male champions, because in workplaces where men disproportionately have the power, change won’t happen without them.”

Ever the proponent of “luck and circumstance”, Gillard explains her 27

New Award to Recognise Pro Bono Work by Legal Firms L-R: Receiving the 2019 Organisational Award for Street Law Centre Ann-Margaret Walsh, Attorney General the Hon John Quigley MLA and 2019 Individual Award winner Margie Tannock.

• Nominations for the 2020 Attorney General's Community Service Law Awards are now open.

• A new Award has been introduced to recognise the pro bono work of legal firms.

• The new Award for legal firms complements awards for individuals and not-for-profit organisations.

The McGowan Government has announced a new award to recognise legal firms that provide pro bono legal services to members of the Western Australian community.

Attorney General John Quigley said it was important to recognise legal firms in Western Australia who provided a substantial amount of pro bono services for the public good.

"These awards publicly acknowledge the best of the best – those individual lawyers and not-for-profit organisations who really walk the talk when it comes to pro bono work,” Mr Quigley said.

28 | BRIEF MARCH 2020

“For the first time in 14 years, the awards will also recognise the pro bono work of legal firms.

“In Western Australia we are fortunate to have so many outstanding individuals, not-for-profit organisations and law firms that provide pro bono legal assistance to members of our community.

"These awards are about recognising and thanking them for their contribution and enthusiasm.

“I encourage anyone who knows of an individual, legal firm or not-for-profit organisation that meets the criteria to put in a nomination.”

Presented as part of WA Law Week in May, the three Law Awards recognise one individual legal practitioner, one legal firm and one not-for-profit organisation which have provided outstanding pro bono legal services to the Western Australian community.

Margie Tannock was the 2019 individual winner. Ms Tannock was honoured for her tireless work for the Western Australian community, including notfor-profit group Many Rivers and with YouthCARE. The organisational winner last year was The Street Law Centre, which supports homeless people, or those at risk of becoming homeless, through the provision of specialised legal advice.

• Nominations must be submitted by 2.00pm on Monday, 20 April 2020.

• To nominate, visit www.justice.wa.gov.au/lawaward

Looking to the Future: Where Next for Law Reform?

By Micheil Paton Principal Legal Officer, Australian Law Reform Commission In December 2019 the Australian Law Reform Commission (ALRC) released its five-year roadmap for the future of federal law reform. The report contains an ambitious suggested program of work for the ALRC from 2020 until 2025. The Commonwealth Attorney-General has been provided with the report to inform decision making on future inquiries to be referred to the ALRC. This is a new approach for the ALRC. The Australian Law Reform Commission Act 1996 (Cth) does not empower the ALRC to determine its own reform agenda. However, the Act does provide that references to the ALRC may be made ‘at the Commission’s suggestion’.1 In addition, the ALRC drew on law reform models from other jurisdictions, including Western Australia, in developing this project.

For example, the Law Reform Commission of Western Australia is required by its statute to ‘prepare and submit to the Attorney General from time to time proposals for the review of any area of law with a view to reform’.2 The Queensland Law Reform Commission has a similarly proactive statutory obligation to submit ‘a program for the examination, in order of priority, of different branches of the law for the purposes of reform’.3 This wording closely resembles the provisions applying to the Law Commission of England and Wales, which is currently implementing its 13th Programme of Work.4 All of these Commissions engage in various forms of consultation when developing their proposed law reform topics. In addition, the ALRC has a long and proud history of public consultation in its law reform inquiry work.

Speaking at the launch of the Future of Law Reform report on 2 December 2019, the Hon Michael Kirby AC CMG (inaugural ALRC Chairman) noted that public consultation was deliberately established as a feature of the ALRC’s work from the outset, in anticipation that public consultation would sometimes contribute valuable law reform ideas, ‘and even if it didn’t, it was right in principle’.

The ‘Future of Law Reform’ project involved extensive public consultation, for example through a series of public seminars, and an online survey. One of these public seminars was held in Perth (and the presentation was streamed live online to the rest of the state and beyond) in partnership with the Law Society of Western Australia in August 2019. A number of local practitioners and government lawyers attended and engaged

30 | BRIEF MARCH 2020

in robust discussion on the potential law reform topics that had at that stage been shortlisted for further consideration and refinement.

In particular, Western Australian participants emphasised that a number of government agencies are already (and increasingly) incorporating automated decision-making processes, and there is an urgent need for review of the legal framework supporting and regulating these mechanisms.

These concerns are reflected in the first listed topic in our suggested program of work: ‘Automated Decision Making and Administrative Law’.

The Perth seminar also demonstrated an appetite to consider alternative mechanisms for the development and consideration of proposals to amend the Australian Constitution, including the potential for constitutional (or legislative) recognition of human rights. Early in this project, the ALRC published a paper outlining its interest in investigating constitutional reform options.5 Ultimately, we were convinced that the ALRC is likely not the appropriate body to conduct a large-scale constitutional review, but that a dedicated standing body could instead be established for this purpose, employing ‘deliberative democracy’ methodologies that are increasingly popular in other jurisdictions.

Other sources of ideas for this project included other law reform agency reports (around Australia and overseas); court judgments; academic writing; and public statements from civil society organisations.

Five ‘selection criteria’ were used to determine the highest priority law reform topics that would be included in the ALRC’s suggested program of work: jurisdiction, importance, impact, effectiveness and suitability. Further detail on these criteria was provided in the initial chapter of the report, potentially providing guidance to current and future governments on the key elements of an effective law reform inquiry. The questions posed in the online survey also reflected these selection criteria, enabling contributors to address the key factors which would determine the priority accorded to each topic.

The five topics suggested to the AttorneyGeneral for consideration are: 1. Automated decision making and administrative law. This inquiry could consider whether the law should be reformed to both facilitate and

appropriately regulate the use of automated decision making software by government departments. Objectives could include promoting administrative outcomes that are fair, transparent, and accountable.

2. Principle based regulation of financial services. This inquiry could consider how particular observations of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry might be implemented in practice. For example, Commissioner Hayne identified an urgent need to simplify and rationalise the regulation of financial services, clearly identifying the principles that underpin specific provisions.

3. Defamation. This inquiry could consider how defamation laws should operate in this age of digital communications.

For example, is more wholesale reform required than amendments to the existing ‘model uniform provisions’?

4. Press freedom and public sector whistleblowers. This inquiry could consider whether reforms are necessary to appropriately protect public interest journalistic activity, and whether existing laws adequately protect whistleblowers.

5. Corporate structures for social enterprises. This inquiry could consider whether there should be a dedicated corporate structure for social enterprises in Australia, as exists in several overseas jurisdictions. Social enterprises are often described as ‘hybrid’ organisations, caught between the regulatory worlds of ‘for profit’ and ‘not for profit’ entities.

Further public seminars are planned for 2020 to gain feedback on the suggestions in the Future of Law Reform report, and to consider how the suggested topics might be further refined and framed in any future terms of reference.

The full Future of Law Reform report is available for download at: www.alrc. gov.au/publication/the-future-of-lawreform-2020-25.

Endnotes 1 2 3 4 5

Australian Law Reform Commission Act 1996 (Cth) s 20.

Law Reform Commission Act 1972 (WA) s 11.

Law Reform Commission Act 1968 (Qld) s 10.

Law Commissions Act 1965 (UK) s 3(1).

Australian Law Reform Commission, ‘The Constitution of Australia: Revisiting Reform’, 15 May 2019, www.alrc.gov. au/publication/thinking-big-the-australian-constitution-asa-law-reform-project.

Peter Dawson and Greg McIntyre SC

Profiles in Law: Peter Dawson Peter Dawson’s career to date is proof of the notion that the study and practise of law can lead to interesting places.

Brief caught up with Peter while he was back in Perth on leave from his work at the Norwegian National Human Rights Institution. Peter was using the time to complete his practical legal training through Australian National University under the supervision of Law Society Immediate Past President Greg McIntyre SC. Peter’s work in the law has taken him to Oslo, Norway, where he has resided since 2015. Last year, he completed a Master of Public International Law at the University of Oslo, writing his final thesis on the topic ‘Indigenous Rights to the City’, focusing on the human rights implications of Indigenous dispossession and exclusion in urban areas. Peter’s thesis included a case study on the City of Perth, which from 1927 to 1954 was declared a prohibited area for Aboriginal people under the Aborigines Act 1905 (WA).

In his work at the Norwegian National Human Rights Institution, Peter focuses on issues relating to the Sámi people, who are indigenous to northern parts of Norway, Sweden, Finland and Russia.

This work is in keeping with his career so

far, which has demonstrated the power of the law as a vehicle for striving for and engendering positive societal change.

After graduating high school from CBC Fremantle, Peter pursued studies in law and politics at the University of Notre Dame Australia. As a proud Aboriginal man, Peter’s interest in law was motivated by a desire to protect and promote the rights of Indigenous peoples both at home and internationally.

In 2012, Peter was named Indigenous Law Student of the Year in recognition of his outstanding academic and other achievements, including his contributions to projects undertaken by the National Centre of Indigenous Excellence in Sydney, the Nulungu Research Institute in Broome and the Australian Human Rights Commission.

An unwavering commitment to Indigenous social justice and outstanding leadership qualities earned Peter the 2012 John Koowarta Reconciliation Law Scholarship. The scholarship, presented by the Law Council of Australia, is in honour of John Koowarta – a traditional owner of the Archer River region in the

Cape York Peninsula who famously challenged the Queensland Government in the High Court from breaching the Federal Racial Discrimination Act 1975.

On receiving the scholarship, Peter said, “The scholarship gives me a sense of pride and achievement in the work I have already done towards achieving justice for my people and inspires me to continue on this path.”

During the final years of his law degree, Peter worked as National Youth Campaign Coordinator for the Recognise campaign of Reconciliation Australia, and also convened the Western Australians for Recognition Committee, advocating for the recognition of Aboriginal and Torres Strait Islander Peoples in the Australian Constitution.

In his current role at the Norwegian National Human Rights Institution, Peter has worked on projects regarding violence and abuse in Sámi communities, the impacts of extractive and renewable energy industries in Sámi areas and the need for a human rights-based approach to Sámi statistics.

He regularly travels to the Institution’s Kautokeino office in the Sámi people’s traditional territory, where temperatures can reach minus 42 degrees Celsius in winter. Last year, Peter presented a report at the UN Permanent Forum on Indigenous Issues in New York and will travel there again this April.

Peter plans to complete the coursework component of his practical legal training and be admitted to practice in Western Australia later this year.

31

A Matter of Trust: Life Since Richstar

By Danielle Bechelet Senior Associate, Avon Legal

Life since Richstar – did the decision in Australian Securities and Investments Commission, Re Richstar Enterprises Pty Ltd v Carey and Others (No 6) [2006] FCA 814 (Richstar) really change anything?

In Richstar the Australian Securities and Investments Commission (ASIC) sought the appointment of receivers in relation to the property of officers and companies in the Westpoint Property and Finance Group. Orders were made for receivers to be appointed and for financial disclosure by each of the defendants.1 ASIC sought amended Orders, in respect of particular defendants, to bring into the scope of the receiver orders, property held by a third party as trustee for any trust (including any superannuation fund) in which the defendant was a beneficiary.2

with a wide pool of beneficiaries. It is also not unusual that the trustee may also be a primary or general beneficiary of the trust. In many trust deeds, the definition of primary beneficiary is usually limited to one or more persons, whereas, the definition of general beneficiary is often wide ranging to include other family members and related trusts, companies and charities.

The Federal Court had to consider whether it had the power under section 1323 of the Corporations Act 2001 (Cth) (Corporations Act) or section 23 of the Federal Court of Australia Act 1976 (Cth) (FCA) to appoint a receiver for property held by a third party on a trust, whether discretionary or otherwise, of which a relevant person was a beneficiary.3

"property" means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes a thing in action…4

As most practitioners would be aware, discretionary trusts are mostly used to protect assets and provide the trustee 32 | BRIEF MARCH 2020

In Richstar, the Court had to consider whether or not a beneficiary of a discretionary trust had a contingent interest in the property of the trust within the definition in the Corporations Act:

In considering the above, French J (as he then was) stated “I am prepared to make more specific orders… directed to the class of discretionary trusts in which, because the trustee is effectively the alter ego of the relevant beneficiary or

otherwise subject to his or her control, the beneficiary has at least a contingent interest within the meaning… of property under section 9 of the [Corporations] Act” (emphasis added).5 With reference to determining a beneficiary’s interest in a discretionary trust, which may not be clearly ascertainable, French J commented: “At least by analogy it may be observed that a beneficiary who effectively controls the trustee of a discretionary trust may have what approaches a general power and thus a proprietary interest in the income and corpus of the trust” (emphasis added).6 French J further commented that in such a situation “it is as good as certain that the beneficiary will receive benefits of distributions of either income or capital or both.” 7 This may also extend to a corporate trustee where a person is the sole director of the company given the power the person would have to control the decisions of the trustee company in such circumstances.8 The approach adopted in Richstar would seem to have a parallel with the decisions of the Family Court, as practitioners may be aware that the Family Court has shown its willingness

to include trust property as part of the “asset pool” when making property settlement orders on the breakdown of a relationship.9 Further, in family law matters, control of the trust is a critical factor in determining whether a party to the marriage has a real interest in the corpus or income of the trust.10 The decision in Richstar is now almost fourteen years old and, although at the time of the decision there was a flurry of commentary on the impact of this decision, there have not been as many decisions considering or citing the case as might be expected.

In Australian Securities and Investments Commission v Burnard (2007) 64 ACSR 360 (Burnard) it was determined that disclosure orders should only be made against persons subject to substantive orders and this meant that a trustee company (BDI) was not subject to disclosure orders.11 In Burnard, the assets of BDI were predominately the assets of three trusts for which it was appointed as trustee. Barrett J considered whether the whole of the property of the three trusts were “the property of Mr Burnard.”12 Barrett J found that as BDI had a preferred beneficial interest in each of the trust funds (due to the trustee’s right of indemnity contained in each of the

relevant trust deeds) it could not be determined that the assets of the three trusts were the property of Mr Burnard.13 However, in the recent case of Deputy Commissioner of Taxation v Wang [2019] FCA 1759 (Wang) the Federal Court has reignited the discussion. In this decision, the Federal Court granted a restraining order to prevent the first respondent from exercising or influencing powers of distribution in respect of three trusts both in his capacity as director of a corporate trustee and as appointor.

The Federal Court was satisfied it could make the orders as it considered the Deputy Commissioner of Taxation had an arguable case on prospective causes of action against the respondent regarding tax related liabilities. In reaching this conclusion, Davies J commented that the law in this area is not finally settled, however, her honour considered Richstar strong authority to support the proposition that, if a person has a sufficient interest in the assets of a relevant trust, a power exists to make orders sought to restrain a person from exercising or influencing any power of distribution in relation to a discretionary trust.14 Since the decision of Richstar there has been much academic speculation (especially in the days following

the decision) as to the impact that the decision may have on the asset protection that discretionary trusts have traditionally offered. However, since that decision there would seem to have been very little judicial consideration of the issues and certainly no clear pronouncement on the issues.

Even though it has been 14 years since Richstar, it is now evident that the issue has not gone away. The decision in Wang is evidence that the Federal Court is again willing to permit the piercing of the trust veil, albeit in limited circumstances, and practitioners need to continue to watch this space to see how future decisions may limit or extend the application of Richstar.

Endnotes 1 2 3 4 5 6 7 8 9 10 11 12 13 14

Richstar at para 1.

Ibid at para 2.

Ibid at para 12.

Corporations Act 2001 (Cth) s 9.

Richstar, French J at para 5.

Ibid at para 19.

Ibid at para 36, referencing Nourse J in Inland Revenue Commissioner v Trustees of Sir John Aird’s Settlement [1982] 2 All ER 929.

Richstar, French J at para 41.

Stephens v Stephens v Anor (Enforcement) [2009] FamCAFC 240.

In the Marriage of Goodwin and Goodwin Alpe (1990) 14 Fam LR 801.

Burnard, Barrett J at 117 – 119.

Ibid at 71.

Ibid at 77 and 78.

Deputy Commissioner of Taxation v Wang [2019] FCA 1759 at 20.

33

Property Rights and Just Terms Compensation

By Karen Browne Partner, HopgoodGanim

Key issues: • In Western Australia 12 years ago, Peter Swift purchased his farm unaware that the property was declared an environmentally sensitive area. The encumbrance was not registered on the Certificate of Title and precluded him from developing his land.

• As a result, state-wide debate and parliamentary inquiry into private property rights and ‘just terms compensation’ have been sparked.

• On 12 June 2019, the Honourable Rick Mazza proposed there be an inquiry into whether (where there is a public benefit to be derived from privately owned land) compensation should be paid and the encumbrance registered on the Certificate of Title.

Peter Swift purchased his farm in Western Australia 12 years ago, unaware that the property was declared an environmentally sensitive area (ESA). The encumbrance was not registered on the Certificate of Title (CoT) and precluded him from developing his land.

On the back of Mr Swift’s inability to ‘farm’ the land and the subsequent loss of value in the land because of that declared ESA, state-wide debate and parliamentary inquiry into private property rights and ‘just terms compensation’ have been sparked.

Legislative amendments were not made to introduce ‘just terms compensation’ into Western Australia.

1. interference with private property rights; and 2. registration of all encumbrances on titles to land.

Private property rights In Australia, land that is privately owned does not entitle the landowner to exclusive possession and control over those lands. Rather, the Crown or State owns all land at the outset and grants an interest in land, with freehold title being the type of grant that is considered closest to absolute ownership. However, land ownership rights in Western Australia are subject to restrictions that may be imposed if the government sees fit.

Pursuant to the Land Administration Act 1997 (WA), compensation is claimable by a landowner whose land is compulsorily acquired or affected by reservation, or by an authorised authority for a public purpose. However, the claim for compensation does not extend where the government otherwise interferes with property rights for a public purpose (directly or indirectly) and restricts property rights, such as declaring land an ESA. The effect of the current State legislative framework governing the interference with land ownership fails to account for the wide variety of circumstances in which private land may be interfered with.

Encumbrances on a CoT

On 12 June 2019, the Honourable Rick Mazza proposed there be an inquiry into whether (where there is a public benefit to be derived from privately owned land) compensation should be paid and the encumbrance registered on the CoT (Parliamentary Debate).

The Torrens Title System (Torrens System) has long been regarded as a cheap, efficient and effective system of land administration that provides transparency to buyers and sellers of real property by requiring registration of certain encumbrances affecting land.

The motion put was passed 18 to 17.

The Parliamentary Debate highlighted an issue that a number of interests which affect the use and enjoyment of land are not required to be registered such as an implied easement, land declared as a bushfire-prone area or an ESA. It was

The Parliamentary Debate centred on two main issues:

34 | BRIEF MARCH 2020

argued that this lack of transparency threatens the probity of the Torrens System.

Proponents for the improved protection of private property rights argue that this perceived lack of transparency undermines the integrity of the Torrens system because people should be aware of the constraints on land they are purchasing – caveat emptor. As a result of the lack of transparency, purchasers are not buying the land which they perceive they are buying. Further, improved transparency will discourage buyers from assuming they are able to do as they please with the land.

Proponents opposing the need for improved transparency in property rights argue that it was never the intention for rights and interests (such as ESAs which affect the land) to be shown on the CoT. Additionally, the existence of those interests that do not appear on the CoT do not threaten the probity of the Torrens System; there is a difference between legal interests in land and factors affecting the use and enjoyment of land.

It was also argued that listing all interests on a CoT would be both inefficient and impractical and may result in ‘cluttering the CoT’ with information which could lead to a CoT being more difficult to understand. Perhaps detail on a CoT caused confusion in days gone by, but due diligence has become a sophisticated process and ‘detail’ should no longer prove prohibitive.

The inquiry into the issue of private property rights and ‘just terms compensation’ was recently deffered until September 2020.

More Changes for Insurance in Super

By Andrew Proebstl Chief Executive, legalsuper

Default insurance cover for many young super fund members and people with low super account balances will be changed as of 1 April 2020.

More changes are coming for the default insurance cover of young super fund members and members with low super balances under new laws passed by Federal Parliament.

The Treasury Laws Amendment (Putting Members’ Interests First) Act 20191 means that as of 1 April 2020: •

•

On joining a super fund, automatic insurance will no longer be provided to: •

People aged less than 25 years

•

New accounts with a balance less than $6,000; and

Existing accounts with insurance and balances less than $6,000 on 1 November 2019 will have that insurance cancelled – unless the member opts to retain the insurance cover by 1 April 2020.

A dangerous occupations exception may apply whereby members will remain ‘opted-into’ insurance if the member’s occupation is in the riskiest quintile of Australian occupations or they are defined as an emergency services worker.

Currently, most new members joining a super fund are typically automatically provided death and total and permanent disability insurance. Some super funds also automatically provide members salary continuance insurance (or income protection).

Under the new laws, which were passed

by Federal Parliament in September last year, members aged under 25 with account balances less than $6,000 will only be provided insurance if they opt-in to the insurance offered by their super fund or take out insurance outside super.

Benefits of the changes The key benefit of the changes is younger super fund members and members just starting to build their super savings will no longer have their balances reduced by

insurance premiums (fees). As a result, they will more quickly build their super balance.

A further potential benefit is the removal of insurance for younger members is appropriate given they are less likely to need the type of cover provided by death and total and permanent disability insurance.

Potential downsides While there are views that younger members may be less likely to need insurance, these views may be open to question.

What cannot be questioned, however, is that deciding to not take out or continue with suitable levels and types of insurance carries with it some very real and possibly significant risks.

Any young super fund member or member with a low account balance with no insurance who suffers a misfortune will find themselves without the protections, supports and financial benefits provided by these types of policies.

Writing in the Australian Financial Review on 14 May 2018, the Chief Executive of the Association of Superannuation Funds of Australia (ASFA), Dr Martin Fahy, said of the then proposed changes: “It will be the families and dependants of young Australians suffering misfortune who will be left to pick up the pieces if the measures pass.”2

The benefits of taking out insurance via your super fund Young super fund members and members with low balances who want to take out insurance will need to actively choose between cover offered by their super fund or retail insurers.

In considering these options, keep in mind that premiums for insurance via your super fund, in most instances, will be lower compared to retail insurers as super funds can offer insurance on a ‘group’

basis across many members.

Many super funds automatically accept you for cover without requiring a health check and you can vary the amount for which you are covered or cancel the cover entirely.

Taking out insurance via your super fund is usually easier and more convenient to manage. Insurance premiums are automatically deducted from your super account rather than your hip pocket.

Most super funds will also pass on the tax benefit of the deduction for premiums.

Automatic deduction of premiums ensures you avoid a time of crisis of not having cover as payment of premiums was overlooked.

Notifying affected members Pursuant to the Treasury Laws Amendment (Putting Members’ Interests First) Act 2019, by 1 December last year all super funds were required to write to members with a less than $6,000 balance as at 1 November 2019, informing them any insurance they have via their super fund will be cancelled on 1 April 2020 unless the member elects to opt-in and continue their cover. The 1 April 2020 date replaces an earlier proposed date for this (and the other changes covered in this column) of 1 October 2019.

Super fund members who will be affected by these changes should contact their fund for more information. Employers may also wish to contact their super fund to arrange a workplace visit to explain the changes to their staff.

This information is of a general nature only and does not take into account your objectives, financial situation or needs. You should therefore consider the appropriateness of the information and obtain and read the relevant legalsuper Product Disclosure Statement before making any decision.

Legal Super Pty Ltd ABN 37 004 455 789, AFSL 246315 is the Trustee of legalsuper ABN 60 346 078 879.

ANDREW PROEBSTL is Chief Executive of legalsuper, Australia’s industry super fund for the legal community. He can be contacted on ph 03 9602 0101 or via aproebstl@legalsuper.com.au.

Endnotes 1

2

See https://www.aph.gov.au/Parliamentary_ Business/Bills_Legislation/Bills_Search_Results/ Result?bId=r6331.

See https://www.afr.com/opinion/columnists/federalbudget-2018-changing-super-cover-means-lessinsured-for-a-higher-price-20180513-h0zzwe.

35

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

Consumer law Whether misleading or deceptive conduct by online search and price comparison platform for travel accommodation In Australian Competition and Consumer Commission v Trivago NV [2020] FCA 16 (20 January 2020) the Court held that Trivago contravened ss18, 29 and 34 of the Australian Consumer Law (ACL) by various representations that it made when Trivago conducted an online search and price comparison platform for travel accommodation.

Trivago’s website presented prices from a number of different online booking sites for a particular hotel. One price was presented in green, in a large font with space around it (the Top Position Offer).

The ACCC’s case was that at various times in the period from 1 December 2016 to 13 September 2019, Trivago made the following representations in breach of the ACL: a) that the Trivago website would quickly and easily identify the cheapest rates available for a hotel room responding to a consumer’s search (the Cheapest Price Representation) b) that the Top Position Offers were the cheapest available offers for an identified hotel, or had some other characteristic which made them more attractive than any other offer for that hotel (the Top Position Representation) c) that the red strike through text on the website (the Strike-Through Price) was a comparison between prices offered for the same room category in the same hotel (the Strike-Through Representation) d) that the red text without strike-through (the Red Price) was a comparison between prices offered for the same room category in the same hotel (the Red Price Representation).

The ACCC also alleged that Trivago engaged in conduct that led consumers to believe that the Trivago website provided an impartial, objective and transparent price comparison which would enable them to quickly and easily identify the 36 | BRIEF MARCH 2020

cheapest available offer for a particular (or the exact same) room at a particular hotel (the additional conduct allegations).

Trivago admitted parts of the ACCC’s case but disputed others (at [11] and [34]). The Court substantially found for the ACCC on the contested parts of the case, although not necessarily for all the time periods argued by the ACCC (at [15] and from [190]).

The Court received and analysed complex computer science expert evidence from both parties (at [91]-[145]), particularly on the algorithm used by Trivago to select the Top Position Offer. The experts agreed that in approximately 66 per cent of listings, higher priced hotel offers were selected as the Top Position Offer over alternative lower priced offers (at [13] and [125]). This was of particular relevance to why the Cheapest Price Representation was misleading and deceptive. Moshinsky J explained at [204]: “. . . the expert evidence establishes that the offer that was given most prominence on the website (that is, the Top Position Offer) was in many cases not the cheapest offer for the hotel room. Based on the data they examined, the computer science experts agreed that higher priced offers were selected as the Top Position Offer over alternative lower priced offers in 66.8% of listings. Conversely, 33.2% of listings had a Top Position Offer that was the cheapest offer. . . . The explanation for the fact that in many cases the Top Position Offer was not the cheapest offer relates to the role of the CPC in the Top Position algorithm . . . ”

penalties to be paid by Trivago.

Court of Disputed Returns Challenge to validity of election of Gladys Liu and Joshua Frydenberg – whether signs used at polling stations were likely to mislead or deceive an elector in relation to the casting of a vote – whether result of election affected In Garbett v Liu [2019] FCAFC 241 (24 December 2019) the Full Court, sitting at the Court of Disputed Returns pursuant to s354(1) of the Commonwealth Electoral Act 1976 (Cth) (the Act), determined a challenge to the validity of the election of Ms Gladys Liu for the seat of Chisholm and Mr Joshua Frydenberg for the seat of Kooyong in the May 2019 election. The challenges concerned signs (referred to as corflutes) placed at polling stations in both electorates that were alleged to be likely to mislead or deceive an elector in relation to the casting of a vote in alleged contravention of s329(1) of the Act.

The judgment includes findings on consumer behaviour evidence based on expert evidence called by both parties (at [146]-[177]).

The corflutes were in Chinese script and each of Chisholm and Kooyong had a substantial Chinese speaking community. The corflutes were in purple and white colours and the purple hue was similar to the purple hue used by the Australian Electoral Commission (AEC) in its signage at polling stations. At a number of polling places the impugned corflute was placed near or adjacent to a sign of the AEC. In translation, the various corflutes said things such as “Correct voting method”, “The right way to vote” or “The correct way to vote” was “On the green ballot paper, put 1 next to the Liberal Party candidate”. In summary, the complaint was that voters who saw, read and understood the corflutes would or may have considered them to be a direction by the AEC as to the correct way to vote, such that electors were being told that the only way to cast a correct (and so valid) vote was to vote for the Liberal Party or that the AEC was officially instructing people to vote for the Liberal Party.

There will be a subsequent hearing on relief including the quantum of pecuniary

Section 362 of the Act concerns the declaring void of elections for illegal

The CPC is the Cost Per Click, which is Trivago’s principal source of revenue.

Trivago’s contractual terms required online booking sites to pay Trivago the CPC if a consumer clicks on the online booking site’s offer on the Trivago website whether or not the consumer makes a booking on the online booking site’s website (at [12]).

practices. By s352(1), the phrase “illegal practice” is defined as meaning a contravention of the Act or of the regulations. In this case, the alleged contraventions concerned s329. Section 329(1) provides: “A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit or authorise to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote”.

Having regard to s362, the Court must not declare that Ms Liu or Mr Frydenberg was not duly elected nor declare the two elections (or either of them) void unless the Court was satisfied that the results or result of the elections or election were or was likely to be affected and that it is just that she or he should be declared not to be duly elected or the election (in respect of her or him) should be declared void.

The Full Court summarised the broad issues before it at [28]: (1) Were the corflutes likely to mislead or deceive an elector in relation to the casting of a vote? (2) Was anyone, and if so who, responsible for that, in the language of s329(1): printing, publishing or distributing or causing, permitting or authorising the printing, publishing or distributing of the corflute? (3) Was the result of the election likely to be affected? and (4) Is it just to order the relief sought, if otherwise available?

The Court first addressed various issues of statutory construction that arose under ss329 and 362 of the Act (at [30][93]).

Turning to the evidence, the Court found that the corflutes were matters or things likely to mislead or deceive an elector in relation to the casting of a vote (at [142]-[154]). Allsop CJ, Greenwood and Besanko JJ explained at [144]: “First, as was the intention of Mr Frost, at least when placed adjacent to AEC signage, it purports to be a sign of, and convey a message from, an independent government agency concerned with the supervision, in a general sense, of the election, when in fact the message is from the Liberal Party. Secondly, if understood as a statement or message by the AEC, it is palpably misleading or deceptive to say that putting the Liberal Party first is the “correct” or “right” way to vote, impliedly stating the way to cast a valid vote is to vote Liberal . . .”

The Court found that the Mr Frost (the person responsible for the dressing of the polling booths in Victoria in the Victorian Division of the Liberal Party) caused or authorised the printing,

publishing and distribution of the corflutes which were matters or things that were likely to mislead or deceive an elector in relation to the casting of a vote (at [155]). No adverse finding was made against Ms Liu or Mr Frydenberg (at [157]-[163]).

Finally, the Court held that the result of the election was not likely to be affected (at [164]-[175]). Ms Liu won the two candidate preferred result by a margin of 1090 votes and for the result to have been affected in Chisholm it would need to be found that at least 546 electors who voted 1 for Ms Liu would not have so voted but would have voted 1 for Ms Yang or for another candidate and directed their preference to Ms Yang (at [167]). Mr Frydenberg’s margin was 11,287 votes and for the result to have been affected, a conclusion would be required that 5644 electors voted for Mr Frydenberg who would not have so voted but would have voted for Mr Burnside or for another candidate and directed their preferences to Mr Burnside (at [168]). However, the Court held that it could only have been a very small group of people who would have felt that they should follow the direction on the corflute (at [170]). Allsop CJ, Greenwood and Besanko JJ stated at [172]: “Whatever the number, if any, of people who may have been influenced or may have felt directed to have voted Liberal when they would not have done so had it not been for the corflutes, it would, in our view, not have been anywhere near 500 or 5000 in either electorate”.

Representative proceedings Application of cy-près doctrine to the distribution of monies from the settlement of a class action In Simpson v Thorn Australia Pty Ltd trading as Radio Rentals (No 5) [2019] FCA 2196 (20 December 2019) the Court approved the settlement of a proceeding instituted under Part IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) pursuant to s33V of the FCA Act. The allegations in the class action concerned the obtaining of financial products for personal, domestic or household purposes and whether the provider engaged in conduct, which was misleading or deceptive, involved the imposition of contract terms that were unfair, and engaged in unconscionable conduct contrary to various statutory norms.

Of interest is the Court’s consideration of a clause in the settlement distribution scheme which provided that if there is an outstanding balance remaining in the settlement fund as at the date of final distribution to group members who are

participating, the administrator: “. . . may exercise its discretion based on a consideration of what is materially proportionate to distribute the additional amount to some or all Participating Group Members or make a donation to the Financial Rights Legal Centre . . . or such other community legal centre as approved by the Court” (at [16]).

Lee J considered the source of power to allow an administrator to pay the residuum of a settlement distribution pool to charities and not-for-profit organisations and when such a power, if it exists, should be exercised (at [17][27]). The origins of the cy-près doctrine were summarised. In general terms, the doctrine allows a court to continue to apply charitable trusts where the intent of the settlor can no longer be effectuated, such that an alternative plan can be designed which will serve to carry out the donor’s intent as nearly as possible (at [19]). The Court discussed the adaption of the cy-près doctrine to the class action context in the United States (at [20]-[22]). After turning to the principles relevant for a court to order a cy-près scheme in Australia (at [22]), Lee J held at [24]: “I consider that the Court presently possesses sufficient power to fashion a remedy to allow a distribution of a settlement sum pursuant to a form of cy-près scheme if it is impracticable or impossible to distribute all or some of the settlement sum to group members individually (being circumstances directly analogous to there being a trust which has exhausted its original purpose and a surplus remains)”. Lee J further held at [25] that even if he was wrong about the position in equity, s33V(2) of the FCA Act is wide enough to provide this Court with such power.

On the clause before it, the Court was not satisfied on the present evidence that it is impracticable or impossible to distribute all of the settlement sum to group members or to some of them (at [28]). Instead of approving the proposed clause, the Court reserved liberty for the claims administrator to apply to the Court, in the event there is a residual sum, to present proposals which facilitate the most efficient distribution of this residual sum to those of the group members who are most in need of it (at [29]).

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

37

HIGH COURT JUDGMENTS David Kelsey-Sugg Castan Chambers, Melbourne

Criminal practice Crown appeal against sentence – procedural fairness HT v The Queen [2019] HCA 40 (13 November 2019) concerned whether the appellant had been denied procedural fairness in the Court of Criminal Appeal and, if so, whether that denial was justified. The appellant had been convicted and sentenced in the District Court of New South Wales. She was a registered police informer who had provided assistance to law enforcement authorities. The sentencing judge was required, by statute, to take that assistance into account as a mitigating factor. Confidential evidence of the appellant’s assistance was given to the sentencing judge and was seen by the Crown Prosecutor. It was not, however, given to the appellant’s counsel.

The Commissioner of Police had opposed making the confidential information available to the appellant or her legal representatives even with the imposition of conditions. The basis given for this was public interest immunity.

The Crown supported that stance. The Court of Criminal Appeal upheld the Commissioner’s objection on the ground that the confidential information was subject to public interest immunity.

The High Court said the appellant, having been denied access to the confidential evidence, and therefore an opportunity to test and respond to it, was denied procedural fairness. The doctrine of public interest immunity did not provide a basis for keeping the confidential evidence from the appellant. The Court of Criminal Appeal was wrong to exercise its residual discretion.

Kiefel CJ, Bell and Keane JJ jointly.

Nettle and Edelman JJ jointly concurring.

Gordon J separately concurring. Appeal from the Supreme Court of New South Wales allowed.

Immigration Administrative law – judicial review – jurisdictional error In EBT16 v Minister for Home Affairs 38 | BRIEF MARCH 2020

[2019] HCA 44 (13 November 2019) the plaintiff applied for a constitutional or other writ in the original jurisdiction of the High Court under s75(v) of the Constitution. The plaintiff sought a writ of certiorari quashing two orders of the Federal Circuit Court. By the first order, the Federal Circuit Court refused an application by the plaintiff for an extension of time under s477(1) of the Migration Act 1958 (Cth) for the filing of an application for judicial review of a decision of the Administrative Appeals Tribunal. The second order dismissed the application for judicial review in respect of which the extension of time was sought. The plaintiff also sought a writ of mandamus requiring the Federal Circuit Court to determine his application for an extension of time according to law.

The High Court did not consider that the plaintiff’s application raised an arguable basis for the relief sought by the plaintiff.

Gageler J. Application dismissed under r25.09.1 of the High Court Rules 2004 (Cth).

Income tax Appeal against objection decision In Bosanac v Commissioner of Taxation [2019] HCA 41 (22 November 2019) the plaintiff sought a writ of certiorari to quash a judgment and orders of the Full Court of the Federal Court, a writ of certiorari to quash the primary judge’s judgment, and other orders including a writ of mandamus to compel the Commissioner of Taxation to excise $600,000 from the plaintiff’s assessable income for the year ended 30 June 2009.

In March 2014, the Commissioner commenced an audit into the plaintiff’s tax affairs. Before the completion of the audit, the plaintiff lodged tax returns for the years ended 30 June 2006 to 30 June 2013 for the first time. On completion of the audit, the Commissioner issued notices of amended assessments that substantially increased the plaintiff’s taxable income. The plaintiff objected.

The Commissioner then issued notices of further amended assessments. The plaintiff commenced an appeal in the

Federal Court against those assessments pursuant to s14ZZ of the Taxation Administration Act 1953 (Cth).

The onus was on the plaintiff to prove on the balance of probabilities the extent to which the impugned assessments were excessive. The plaintiff failed to do so before the primary judge. He then appealed to the Full Court, which dismissed the appeal. The High Court said there was no error in the reasoning of the Full Court and no basis for compelling the Commissioner to reduce the further amended assessment in respect of the 2009 year of income by the amount of $600,000.

Nettle J. Application dismissed.

Representative proceedings Power to make common fund orders BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall [2019] HCA 45 (4 December 2019) concerned whether, in representative proceedings, s33ZF of the Federal Court of Australia Act 1976 (Cth) and s183 of the Civil Procedure Act 2005 (NSW) empower the Federal Court and the Supreme Court of New South Wales to make a “common fund order”. Such an order is usually made early in representative proceedings and provides for the quantum of a litigation funder’s remuneration to be fixed as a proportion of any money ultimately recovered in the proceedings, for all group members to bear a proportionate share of that liability, and for that liability to be discharged as a first priority from any money so recovered.

The issue was resolved in the affirmative against the appellants – in the Westpac appeal by the Full Court of the Federal Court of Australia, and in the BMW appeal by the Court of Appeal of the Supreme Court of New South Wales.

By majority, the High Court said that properly construed, neither s33ZF of the FCA nor s183 of the CPA empowers a court to make a common fund order. Those sections provide that in a representative proceeding, the court may make any order the court thinks

Bosanac v Commissioner of Taxation

appropriate or necessary to ensure that justice is done in the proceeding. While the power conferred is wide, it does not extend to the making of a common fund order. The sections empower the making of orders as to how an action should proceed in order to do justice. They are not concerned with the different question of whether an action can proceed at all.

It was not appropriate or necessary to ensure that justice is done in a representative proceeding for a court to promote the prosecution of the proceeding in order to enable it to be heard and determined by that court.

The making of an order at the outset of a representative proceeding, in order to assure a potential funder of the litigation of a sufficient level of return on its investment to secure its support for the proceeding, was beyond the purpose of the legislation.

Kiefel CJ, Bell and Keane JJ jointly.

Nettle and Gordon JJ each separately concurring. Gageler and Edelman JJ each separately dissenting. Appeal from the Court of Appeal of the Supreme Court of New South Wales allowed in the BMW appeal. Appeal from the Full Court of the Federal Court of Australia allowed in the Westpac appeal.

Police powers Arrest without warrant New South Wales v Robinson [2019] HCA 46 (4 December 2019) concerned whether a police officer has the power to arrest a person, without warrant, under s99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) when, at the time of the arrest, the officer had not formed the intention to charge the arrested person.

Mr Robinson had brought proceedings in the District Court of New South Wales against the State of New South Wales claiming damages for wrongful arrest and false imprisonment constituted by his arrest. The State of New South Wales defended the claim on the basis that the arrest was lawfully effected pursuant to s99 of LEPRA. On the evidence, the arresting officer had no intention, at the time of the arrest, of bringing Mr Robinson before an authorised officer to be dealt with according to law unless it emerged subsequent to the arrest that there was sufficient reason to charge him.

as soon as is reasonably practicable, of taking the arrested person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for that offence. An arrest merely for the purpose of asking questions or making investigations in order to see whether it would be proper or prudent to charge the arrested person with the crime is unlawful.

The arresting officer did not have the power to arrest Mr Robinson, without warrant, under s99 of LEPRA when, at the time of the arrest, the officer had not formed the intention to charge Mr Robinson. The arrest was unlawful.

Bell, Gageler, Gordon and Edelman JJ jointly. Kiefel CJ, Keane and Nettle JJ jointly dissenting. Appeal from the Supreme Court of New South Wales dismissed.

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

By majority, the High Court said an arrest under s99 can only be for the purpose,

39

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

they please as is compatible with their obligations pertaining to the children … Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests …

Children – Unilateral relocation by mother (which did not prevent her from adhering to interim order for father’s contact) allowed on appeal In Franklyn [2019] FamCAFC 256 (23 December 2019) the Full Court (Watts, Austin & Rees JJ) allowed the mother’s appeal against an interim order of the Federal Circuit Court that the appellant, who had unilaterally relocated with the parties’ four year old child from central west NSW to south eastern Queensland, return with the child enabling the child to spend five hours each Saturday with the father.

Upon separation the child had little or no contact with the father for seven months due to the mother’s concealment of her address and a family violence order obtained by her. That order was ultimately discharged ([9]). On the father’s application an interim order was made with his consent to his having two hours a fortnight with the child at a contact centre. Four months later the father filed an application for variation of that interim order, at the hearing of which the mother disclosed that she had already relocated with the child ([11]).

After a two month adjournment the father (and ICL) sought an order that the mother return to NSW, he to have unsupervised time, and that if the mother failed to relocate the child live with him.

The Full Court said ([28]-[29]):

“ While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF …

U v U … ). Parents enjoy as much freedom to live where

40 | BRIEF MARCH 2020

case for … maintenance, the judge failed to explain sections 90SE and 90SF … to him.

The Full Court said (from [11]):

“A failure to comply with the Re F guidelines does not automatically establish error. … [T]he guidelines are only informative of the overarching obligation upon a … judge to conduct the hearing in a way which affords each party a fair trial, and … to provide a selfrepresented litigant with the opportunity to fairly present their case. … [T]hat opportunity may require such a litigant to be apprised of information … for them to make informed choices … whether to call evidence, cross-examine … or make submissions …

Error will only be established if the failure to provide such information … meant that, in the … circumstances of the case, a fair trial did not ensue. However a new trial will not be ordered if it can be shown that the … judge’s decision was inevitable despite the procedural irregularity, in that it could have had no bearing on the outcome. ( … )

[19] We cannot see how [expert] Ms B’s evidence could have been materially undermined even if the appropriate explanation about cross-examination … had been given. ( … )

[22] … [T]he appellant was … represented until the … eve of trial. It is … inconceivable that his solicitors had not explained the law relating to … maintenance … prior to … termination of their retainer ( … )”

When the mother relocated with the children from central west NSW to south eastern Queensland, she did so in the knowledge she would still need to adhere to the interim parenting orders made in May 2018 requiring her to present the children to the father at a contact centre in Town H, NSW once every fortnight. ( … )”

Property – Court’s failure to comply with guidelines for litigants in person does not necessarily establish error In Laremore & Speidell [2019] FamCAFC 215 (19 November 2019) the Full Court (Ainslie-Wallace, Ryan & Tree JJ) dismissed with costs fixed at $16,426 Mr Laremore’s appeal against a property and maintenance order made by the Federal Circuit Court on the ground that he was not given a fair trial.

Represented until the eve of trial, the appellant appeared at the trial in person but appealed contending that the Court had not followed Re F: Litigants in Person Guidelines [2001] FamCA 348. He complained that the Court had not explained that, if not challenged by crossexamination, a single expert’s testimony might be more readily accepted than if he had challenged it; and that in the context of the …

so, her Honour omitted to take into account a relevant factor and took into account a mistaken factor ( … )”

Children – Granting of overseas relocation set aside on appeal In Soulos & Sorbo [2019] FamCAFC 231 (3 December 2019) the Full Court (Strickland, Aldridge & Austin JJ) allowed the father’s appeal of an order permitting the mother to relocate the parties’ eight year old child from Australia to “Country N” in Europe where the mother was raised. At the hearing the ICL opposed relocation, proposing that the child continue to live with the mother and spend time with the father. The father sought an order that the child live with him.

Hannam J found that the father had been violent towards the mother … although … [not] … since separation. The father appealed the Court’s finding that there was a risk of harm to the child in his care, arguing that that finding was in error and resulted in the Court’s failure to consider the inevitable loss of the paternal relationship due to relocation overseas.

The Full Court agreed, saying ([35]):

“ … [W]hilst the father had been violent when the parties were … together, there had been no violent conduct in the six years since the parties had separated.

There was no suggestion that the father was violent in his new relationship and the evidence was to the contrary.

Whilst it was relevant to future interactions between them, it is too far a stretch to suggest that because of the earlier violence, there was an existing risk of harm to the child. The mother did not suggest that there was.

The Full Court concluded ([63]):

“In short, we accept the father’s submission that nowhere in the reasons did the primary judge adequately consider and weigh in the balance the effect of the changes of the child relocating to Country N, other than the loss of his relationship with his father. This was then weighed against the erroneously found risk of harm that the father presented to the child. In doing

did not, he was effectively supported by the respondent. ( …)

[51] In terms of contributions … [the wife] worked throughout … cohabitation, applying the whole of her income to the support of the relationship and the maintenance or improvement of her property. (…)

[53] … [W]hen challenged … [the applicant] agreed that … his [$8,000] redundancy … had been … applied … in … reduction of his indebtedness to the respondent’s parents. ( …)

[128] … [T]he respondent’s … property was kept strictly separate in the parties’ dealings, … [she] meeting all costs and discharging all liabilities … The property was brought into the relationship by the respondent ( … )

[129] … [H]is work around the property came nowhere near to supporting a conclusion that he had equity … ( … )

[132] Additionally, the respondent met the parties’ living expenses … [while] the applicant was unemployed. …

[T]he respondent effectively bore the whole of the parties’ living expenses for at least half of … the relationship.”

Property – No property order for husband who had effectively been supported by wife and her parents during six year cohabitation In Babray [2019] FCCA 3514 (9 December 2019) Judge Kelly dismissed the husband’s application for property settlement in respect of a marriage where the parties lived together for 5.75 years and had a six year old child. At commencement of cohabitation in 2009 or 2010 the husband effected a property settlement with his former de facto partner, borrowing $90,000 from the wife’s parents so as to achieve that settlement. The parties married in 2011.

When the husband’s Suburb D property was sold in that year he received net sale proceeds of $47,750. He put those proceeds towards buying a motor vehicle for $70,000, but he could not afford it so he borrowed more money from the wife’s parents to make up the shortfall. At cohabitation the wife owned an unencumbered property which remained in the asset pool.

The husband worked for three years as a labourer before being made redundant. He was then unemployed for three years, retraining in occupational health and safety and re-joining the workforce before separating. The husband sought 30 per cent of the wife’s property, which the wife opposed. The parties had kept their finances separate, save for a joint bank account established for living expenses.

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

The Court said (from [48]):

“ … Although the parties had established a joint account, the applicant’s contributions were sporadic …[When] the applicant made contributions they barely covered his personal expenditure and … when he 41

Memories of London and Lord Denning

By Sukhwant Singh, LLB. Hons, LL.M (UCL) Barrister, Lincoln’s Inn The author (far left) with Lord Denning (centre)

On a coolish Michaelmas day in 1980, I crossed the Chancery Lane/High Holborn intersection heading to Lincoln’s Inn. On the opposite path, I became vaguely aware of two men. One walked cautiously with evident difficulty, aided by a walking stick. Did I startle them by leaping into their path? I turned to apologise.

I certainly displayed my incredulity as I adjusted my spectacles to leave room for bewilderment. Lord Denning acknowledged my apology. I introduced myself as an overseas student of the Inn. He said, “Ah, Singapore?” in a tone which indicated that my turban had deceived him into inferring I was from India. I did not wish to detain him and he continued down the Lane.

His Lordship attended my Trinity Bar Call on 23 July 1981. He often did so for Bar calls. He mingled with students and posed for photographs in the Inn’s grounds, then in the Great Hall. We were capernoited by his presence, fame and charm. He chatted easily, laughed refreshingly with twinkling eyes and seemingly enjoyed our company. We talked briefly about Singapore and military service. He autographed our Barristers’ Certificates of Standing. Mine reads, “Denning M R”.

September 1982 saw a third encounter with his Lordship on Chancery Lane as I strode to Lincoln’s Inn from Russell Square. He nodded to me in recognition, waved his walking stick and turned into a private path along Stone Buildings leading to the Inn’s Fields. I still recall a notice on the wall of the path, “Non-residents must not bring dogs into the Inn”. I call the path “Lord Denning’s Path”.

If you scan this article impatiently for pearls of wisdom from His Lordship to me, I regret to frustrate your search.

Lord Denning relished a general, easy dialogue with students and junior barristers. We addressed him reverently.

My reminiscence may be faulty but I

42 | BRIEF MARCH 2020

recall that as a junior barrister, we could address a judge by his/her first name within the Inn. I could not bring myself to address him as “Tom” out of deep respect or mayhap obsequiously.

In this article, I confine my memories of London between 1980 and 1982 to those encounters with his Lordship. As I reflect, there did seem a lot to write home about.

In 1980, the IRA was active in central London. Tube stations were closed now and again due to bomb threats. I often walked the streets of London to avoid the dangers. I have a sensitive sense of selfpreservation – the mark of an established and firm coward!

As a relevant aside, it was a matter of some pride that between 1980 and 1982, members of Lincoln’s Inn held the highest public offices. Mrs Thatcher was the first female Prime Minister. Lord Hailsham was Lord Chancellor, Lord Denning was Master of the Rolls, Lord Widgery was Chief Justice (till 1980). Sir Robert Megarry was Vice-Chancellor.

In April 1981, there were the Brixton riots (and mum calling me frantically to return home because “London was burning”).

Charles and Diana married on 29 July 1981, 6 days after my Bar admission and my second encounter with Lord Denning.

In October 1981, the IRA bombed Chelsea Barracks.

Then there was the brontide of war – in April 1982, Mrs Thatcher took Britain to war with Argentina over the Falklands Islands. On 2 May, British forces sank the warship General Belgrano to the visible jubilation and delight of the home crowd, notwithstanding substantial loss of life.

In May 1982, his Lordship published, “What Next in the Law”. He shared his concerns about migrants sitting on juries.

Until the barrage of media attacks on him, I was oblivious of the storm clouds gathering against him. Lord Denning brought a provocative issue from the dim

dungeons of unpublished commentary into bright light for ventilation. No one had hitherto the gumption required to express those concerns publicly. The newspapers were replete with animadversions. Some members of the profession denounced and rebuked him, conduct which I regarded as meretricious.

History records that shortly before Pope John Paul’s first ever visit to UK in May 1982, Lord Denning handed in his resignation. The media was engrossed by the Pontiff’s visit and the birth of Prince William in June and distracted by the July bombings of Hyde and Regents Parks. There was prolific reporting of his Lordship’s last day in the Court of Appeal on 30 July 1982. His resignation took effect in late September 1982. In October, the London Falklands victory parade enabled the British public to galumph.

Lord Denning slipped into retirement rather quietly, at least initially.

One ponders if Lord Denning’s earlier than planned departure from dynamic court life or the circumstances of it, unsettled him. My wife, Swain Thambyappah was admitted to Lincoln’s Inn on 23 November 1982. Lord Denning was present and autographed her Certificate of Standing.

I look at that signature. It simply reads, “Denning”. What was in his Lordship’s mind when he had to omit the “M R” after his name? How did he feel after 20 years as “MR”? The missing alphabets are telling and melancholic.

In August 2019, I was crossing Chancery Lane towards Fleet Street for coffee with my old mates in Memery Crystal, solicitors. Lord Denning’s Path continues to serve its purpose. London, it is often said, never changes. Something has. Lord Denning joined the ‘Great Court’ in the heavens in March 1999.

To me, he will always be “M R”– Master of (law) Reform. May he continue to rest in peace.

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

Your Dog is certainly not the first, nor will he be the last, to comment on the devastating bushfires that have affected Australia, in particular New South Wales. The video footage as seen on TV and photographs in newspaper reports are incredible.

The Dog was gratified to read the views of Law Society President, Nicholas van Hattem, published in The West Australian on 13 January 2020, commenting on the resilience and courage of those caught up in fires, and describing action which has been taken by the Law Institute of Victoria, the Law Society of New South Wales and the Law Society of Western Australia. It is also pleasing to see the steps now proposed by the Federal Government to assist those who have suffered damage as a result of the fires, including those involved in agriculture, small business and who have lost their homes. There are more than 192,000 small businesses that have been adversely affected, 13,750 insurance claims lodged so far, 30 people killed, and an estimated 1 billion animals.

When one looks back at the photographic records of the extraordinary damage to Yarloop in the fire which occurred on 20 and 21 January 2016 and compares those to the present, it is pleasing to see that there has, in the last four years, been considerable recovery from the damage. Nonetheless travelling down the Forrest Highway to Margaret River the Dog is struck by the relics of burnt trees and bushes, which even now have not recovered.

Having regard to the size of the drought affected areas of New South Wales, it is going to take a long time to replace the bushland, the birds, insects and wildlife which have suffered enormously.

Fortunately, it would seem that damage to residential and business property has been controlled to a remarkable extent, but even so, damages claims will proliferate. Of course, there will be the usual crooks who scam those wishing to help by making donations, and even those in need of help. Watch out for those phoning to invite donations to non-existent charities, or who pose as acting for or representing such charities.

Sara Pearson’s article in this edition of Brief reporting on the relatively slow rate of progress in implementation of the “Equitable Briefing Policy” adopted by the Law Council of Australia in June 2016 gives pause for thought. One wonders why the profession has taken so long to move in this direction, when one considers the avenues available to women in other professions such as medicine, dentistry, architecture and the like, where it would seem these issues do not arise to the same extent. Ms Pearson’s survey of women barristers at the Western Australian Bar Association states they are hopeful of the Policy’s future impact, but the statistics reported show that 19 of 27 respondents described it as “somewhat helpful in driving equality” and 16 of 27 respondents experienced “some amount of impact since the introduction of the Policy”. Those statistics, by themselves, are not what the Dog would have hoped to read.

It would be interesting to know the breakdown between government institutions and private and public companies, and their respective adherence or otherwise to the Policy. For all the progress, it would seem there are still more litigants briefing male barristers than women barristers. It will probably take a long time for society’s attitude to change.

Having entered the second decade of the century, and reflecting on the bushfire crisis and the impact of climate change, on the one

hand, and reflecting on the continued chauvinism demonstrated towards women, to what extent and when will these things change and what improvement will be made in the next 80 years?

The recent disclosures of the report of the Commonwealth Auditor General regarding the distribution of grants leading up to the past Federal election is disappointing. What is it that led the thenMinister of Sport to choose to dismiss the work by Sports Australia in identifying the preferred recipients of funds to be distributed by it? Choosing to make payments to sports groups chosen for political reasons in breach of the applicable standards must surely be corrupt – yet there is no sanction, even though the distribution in that way was beyond the Minister’s power.

The recent comments by Anthony Whealy QC (former justice of the Supreme Court of New South Wales Court of Appeal) and his criticism of the proposed Commonwealth Integrity Commission model makes for sobering reading: such a Commissioner would have no power to investigate the corruption. Surely the Government and its ministers can do better than that?

A reference in a recent speech by the Hon Justice Bell, President of the New South Wales Court of Appeal to“the delectably named Lord Salmon of Sandwich” sent your Dog scurrying to find similar names of the provenance of Law lords in the UK. On 14 August 2008 Richard Harrison reported in The Times “A judge by any other name: the fashion in legal [judicial] titles” commencing with Lord Simon of Glaisdale.

He said, on a cycling break, coming off the North York Moors, he began the descent from Glaisdale Moor, down Glaisdale Rigg and into the village of Glaisdale in the Esk Valley. The name was the provenance of Lord Simon of Glaisdale, who had been MP for Middlesbrough West and Lord-Lieutenant of North Yorkshire. The village of Worth Matravers in Dorset was the place used by Lord Chief Justice, Lord Phillips, in the title of his peerage, Lord Phillips of Worth Matravers, of Belsize Park in the London Borough of Camden.

A Lord of Appeal in Ordinary is technically a life peer appointed pursuant to the Appellate Jurisdiction Act 1876. The former Treasury counsel, Simon D. Brown, became Lord Brown of Eaton-under-Heywood, of Eaton-under-Heywood in the County of Shropshire. Lord Hoffmann did not use a place name as part of his title, but was technically Lord Hoffmann, of Chedworth in the County of Gloucestershire.

None of Lord Denning, Reid, Diplock or Wilberforce included a place name. Sir John Morris of the Court of Appeal became the Welsh Lord Morris of Borth-y-Gest in 1960. This remained until the appointment of Lord Cross of Chelsea and Lord Simon in the 1970s. The Scottish law lords brought alliterative names such as Lord Keith of Kinkel and Lord Fraser of Tullybelton.

2020, the year of the Metal Rat, could be the year when judges of the Supreme and District Court commence the addition of names indicating their WA provenance! Imagine Crooked Brook, Damboring, Disaster Bay, Geekabee Hill or even Cyanide Swamp!

Your Dog

43

The Tale of the Missing Brooch, That Wasnâ&#x20AC;&#x2122;t

By John McKechnie QC

In 19th century Victoria, the Rev Charles Clark was a well-known Baptist minister. He made a fortune lecturing throughout the colonies and preached to overflowing congregations.

Described as an exceedingly kind and pleasant man who dresses nicely and gesticulates gracefully, he may also have been, as this tale unfolds, a man inclined to act with haste.

The charges against Ms Langan were abandoned and in due course she took actions against Rev Clark for malicious prosecution and false arrest.

Being genteel Victorians and living close to Fitzroy Gardens in Melbourne, the Rev Clark and his wife employed a servant, Bridget Langan.

She failed in her first action as the jury found there was a reasonable suspicion she was guilty sufficient to justify prosecution.

On 20 July 1869, Bridget was sent upstairs to get a handkerchief. She took her time about it but eventually she came down, gave it to Mrs Clark who then left with her husband for an engagement.

Later that night on their return Mrs Clark went to her jewellery drawer of which she had the only key and discovered that a valuable diamond brooch was missing.

Immediately detectives were sent for and at the request of Rev Clark, took Ms Langan into custody for stealing the brooch.

On the way through Fitzroy Gardens on the way to the watch house the Rev Clark asserted that Ms Langan had said "if you look in the cupboard you will find the brooch" she also said "you will get back my brooch but who will give me back my character."

Well to Rev Clark that was tantamount to a confession.

His offer that they return to home immediately was rejected by Ms Langan so they continued to the watch house where she was imprisoned.

So he must have been greatly perturbed when later his wife found the brooch in the same drawer, albeit in a different place.

It may be that Ms Clark was feeling remorse over her husband's hastiness in accusing Ms Langan because she had to leave the police Court because of her feelings for the poor servant girl.

44 | BRIEF MARCH 2020

However she recovered ÂŁ75 damages for false imprisonment.

The trial judge told the jury to ignore the Fitzroy Gardens conversation when considering false imprisonment. Was he right to do so?

Yes, said the full court when dismissing Rev Clark's appeal. The imprisonment commenced when Ms Langan was given into the charge of the detective and Rev Clark's state of mind had to be judged then, not later.

During argument the judges expressed some doubt whether the words spoken amounted to knowledge of a felony in any event!

The Rev Clark fared no better on his damages appeal. To show that ingenuity is not confined to the modern era of advocacy, Rev Clark's counsel argued that as she was taken through Fitzroy Gardens at night not much damage was done to her character and nominal damages only should have been awarded.

Chief Justice Stawell would have none of it "There is injury to the character of a person even suspected, an important matter to a servant." (To Miss Langan this comment must have seemed like a Stawell gift).

So virtue triumphed and the wealthy Rev Clark was a little bit less wealthy for a time.

Adapted from Langan v Clark (1889) VLR 252

45

Law Council Update Independent checks on de-encryption powers needed The Law Council of Australia has welcomed comments by the Independent Security Legislation Monitor (INSLM) that there is a strong argument for better safeguards on requests to telecommunications companies to give access to encrypted private information.

The comments by the INSLM, Dr James Renwick SC, reported in the Australian Financial Review, justify concerns expressed by the Law Council at the time Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth) (TOLA) was passed by the Australian Parliament in December 2018.

The INSLM is currently reviewing the legislation and the Law Council will this Friday attend a public consultation as part of the review.

Law Council President Pauline Wright said the absence of judicial review of the powers of law enforcement and intelligence agencies to access encrypted data will erode social licence for the use of these powers and undermine reasonable expectations of confidentiality and privacy.

“The Law Council acknowledges there is significant benefit to public safety in allowing law enforcement authorities faster access to encrypted information where there are imminent threats to national security and in order to prevent the commission of serious criminal offences,” Ms Wright said.

“However, the measures introduced by the TOLA Act go far beyond these threats and have broad application, applying to the enforcement of any criminal law in force in any foreign country, or domestic laws which attract a maximum penalty of three years imprisonment.”

In its submission to the INSLM, the Law Council has suggested the TOLA Act would be improved if: • the definition of 'serious offences' is made consistent with the Telecommunications (Interception and Access) Act 1979 (Cth), that is,

46 | BRIEF MARCH 2020

punishable by a maximum term of imprisonment of seven years or more, not the currently prescribed three years; • the 'reasonable and proportionate' test within the Telecommunications Act specifically requires the decision maker to determine whether perceived law enforcement imperatives demonstrably outweigh the reasonable expectation of confidentiality in electronic communications between individuals and businesses; and • decisions made under Part 15 of the Telecommunications Act are to be made by a judicial officer. In the alternative, it is recommended that judicial review of Part 15 decisions should be available.

Closing the Gap report show Indigenous input vital The latest Closing the Gap report shows how important it is for Aboriginal and Torres Strait Islanders to have a say in the laws and policies that affect them through a constitutionally enshrined Voice to Parliament, says the Law Council of Australia.

Law Council President, Pauline Wright, said the latest report showing only two of the seven Closing the Gap targets are "on track" was the legacy of many years of ignoring and silencing the views of First Nation peoples.

“The lack of a voice continues to manifest itself through the outcomes we see in this report and through Indigenous incarceration rates which are a national shame,” Ms Wright said.

“Aboriginal and Torres Strait Islanders need to have a say in the decisions that affect their lives and be able to propose bills and be consulted on bills before Parliament. This is why we will continue to advocate for the Uluru Statement from the Heart.

“Governments also needs to respond and act on the Australian Law Reform Commission’s Pathways to Justice Report, including introducing a COAG Closing the Gap justice target.”

Ms Wright acknowledged the commitment of Minister of Indigenous Australians Ken Wyatt in Parliament today to consult with Aboriginal and Torres Strait Islander people and to listen to their voices. But to make a real difference to the lives of Indigenous people it was vital for their voices to be heard by Parliament as well.

“There is simply no reason to be fearful of constitutional enshrinement.

Any concerns that it would be a ‘third chamber’ in Parliament have now been thoroughly dismissed,” Ms Wright said.

“People should not be afraid of giving our First Nations peoples a real and meaningful voice in our democracy.”

Ms Wright said the alternative that has been proposed, a voice to government, would not be enshrined in law and could therefore be abolished at any point in the future.

“It is essential we have an open and wide-ranging consultation process that addresses all options, especially a key recommendation of the Uluru Statement: constitutional recognition. The principle of self-determination requires meaningful Indigenous participation in decision making.

The Uluru Statement was one of the most comprehensive consultations ever conducted with Indigenous Australians.

We should be respecting that process and the many leaders and community members who took part in those consultations.”

The Law Council will continue to work closely with Minister Wyatt and the highly regarded advisory team, which includes Marcia Langton and Tom Calma.

Professional Announcements Career moves and changes in the profession

Rowe Bristol Lawyers Rowe Bristol Lawyers are pleased to announce the appointment of Daniel Messina as a Director. Daniel joined Rowe Bristol Lawyers in 2012 and has demonstrated his ability to service the needs of a varying client base, across a variety of matters. Daniel predominantly practises in the field of commercial law and litigation.

Glen McLeod Legal Glen McLeod Legal is pleased to announce that Lea Hiltenkamp commenced working as a lawyer at Glen McLeod Legal after she was admitted to the Supreme Court of Western Australia on 4 Lea Hiltenkamp November 2019. Lea represents clients in the areas of planning and environment appeals, assists with approval pathways for waste projects and advises on carbon farming projects.

We are also pleased to announce that Chelsea White has been admitted to the Supreme Court of Western Australia on 7 February 2020.

Chelsea presently is Chelsea White working on matters relating to land compensation, planning appeals and clearing prosecutions. She is also assisting Glen McLeod in his capacity as Adjunct Professor at Murdoch University with the planning and environment law courses.

Commenting on the admission, her mover Glen Mcleod, said that admissions are the only time everyone leaves the Court happy.

Chelsea’s colleague Lea Hiltenkamp was also admitted late last year. The firm is very pleased to support young talent and grateful for their involvement in the services we provide to clients.

105 St GeorGeS tce Perth

Would anyone holding or knowing the whereabouts of a Will for the late RONALD PETER WHYTE late of 119 Hastings Street, Scarborough, Western Australia who died on 27 November 2019 please contact Peta Whyte at CWS Lawyers on (08) 6210 7070 or pwhyte@cwslawyers.com

real estate

Payam Golestani REAL ESTATE AGENTS

(08) 9228 8888 PROPERTY MANAGERS

Miss Madelaine Hogan DLA Piper Australia

Associate Membership Mr Matthew Endo University of Southern Queensland Mrs Ekemeien Ero-Phillips Deakin University Miss Florence Gillespie University of Notre Dame Australia Mr Trevor Greenham Murdoch University – School of Law

Mr Bremer Moore The University of Western Australia – Law Faculty

Missing Will

Priority 1

Ordinary Membership

Mr Xavier Malone Bennett & Co

For Sale/leaSe

https://www.commercialrealestate.com. au/property/105-st-georges-tce-perthwa-6000-2015432657

New members joining the Law Society (February 2020)

Mrs Linh Hingston-Curtis

Classifieds

Rare opportunity to own half of the 3rd floor & approx. 220m2 of prime office space within this prestigious building in the heart of St Georges Tce with direct frontage to St Georges Tce: The space comprises of 2 adjacent lots on separate titles. The lots are: • Fully refurbished (floor to ceiling) • Panoramic Tce & City Skyline views • Fully fitted out Buy one for yourself and another for your superfund, or occupy one and lease the other and watch your investment grow. Or lease now with an option to buy later. The possibilities are endless.

Buy together or separately $550K & $650K.

New Members

Mr Michael Morgan Kott Gunning Lawyers Mr Johnny Nguyen Murdoch University – School of Law Mr Courtney Smart Murdoch University – School of Law Ms Amberley Speak S Billing & Associates Miss Emily Thomason University of Notre Dame Australia

Missing Will

ATHERTON TABLELANDS $200K, PLUS WIP

Would any person or firm holding or knowing the whereabouts of the Will of the late KEVIN GEORGE BOYD, late of 41 Honeyeater Drive, Highfields, QLD 4352, formerly of 11 Church Street, Minmi NSW 2287, formerly of 18 Horner Way, Herne Hill WA 6056 who died on 29 April 2019, please contact Lindsay Brown of Reeslaw, 120A Russell Street, Toowoomba QLD 4350 on (07) 4632 8484 or email: lindsay@reeslaw.com

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

AUCTIONEERS OFFICE: 567 BEAUFORT STREET MT LAWLEY 6050

47

Events Calendar

With thanks to our CPD partner

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

MARCH 2020 Membership Events Thursday, 5 March YLC Rebrand 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 â&#x20AC;&#x201C; The CPD Game Show for Lawyers, hosted by Julian Morrow

MAY 2020 Membership Events Monday, 18 May â&#x20AC;&#x201C; Friday, 22 May Law Week 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.

48 | BRIEF MARCH 2020

You’ve spent your career fighting for winning outcomes.

We have built our business on helping you achieve them.

Where Production Work Flows. info@lawinorder.com • 1300 096 216

Printing/Copying | Oversize Plan Printing | Scanning | Appeal and Court Books Accessing and Reproducing Subpoenaed Documents | Legal Process Outsourcing

Perth • Sydney • Brisbane • Melbourne • Singapore • Hong Kong • India 49

Serve your clients, manage your firm

Client Service

Document Management

Accounting & Billing

Deliver 24/7 client service -

Securely share, automate

Easily perform complex

schedule appointments, receive

and store documents,

transactions with in-built office

payments, manage referrals

correspondence, searches

and trust accounting.

and receive intake forms.

and forms.

leap.com.au/everything-you-need