Brief February Edition by The Law Society of Western Australia

VOLUME 48 | NUMBER 1 | FEBRUARY 2021

State Election – State Government and Opposition Respond to Law Society Policy Positions Also inside... Prorogation Interview with Judge Barone Legally Mine! The Corruption and Crime Commission: Its Beginnings, Purpose and Effectiveness Freedom of Information - from the Age of Enlightenment to the Digital Age, and Beyond Defining ‘Sexual Abuse’ under the Civil Liabilities Act: An Opportunity to Consider Our Approach

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Volume 48 | Number 1 | February 2021

CONTENTS

ARTICLES 06

2020’s High Court Developments for the Law of Damages

State Election – State Government and Opposition Respond to Law Society Policy Positions

Freedom of Information - from the Age of Enlightenment to the Digital Age, and Beyond Should the Sexual Gratification of a Perpetrator Play a Role in Defining ‘Sexual Abuse’?

Prorogation

End of Year Celebration

Interview with Judge Mara Barone

Legally Mine!

2020 Practical Advocacy Weekend

The Corruption and Crime Commission: its Beginnings, Purpose and Effectiveness

YLC Mixed Netball Competition 2020

Mentoring Matters

DISCLAIMER: The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief. COPYRIGHT: Readers are advised that the materials that appear in Brief Journal are copyright protected. Copyright is retained by the author. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.). The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia. Published bi-monthly (Feb, Apr, Jun, Aug, Oct and Dec) Advertising enquiries to Manager Corporate Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au Communications and Design Officer: Charles McDonald RRP $16.00 incl GST.

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

President: Jocelyne Boujos

REGULARS

Senior Vice President: Rebecca Lee Junior Vice President & Treasurer: Shayla Strapps Immediate Past President: Nicholas van Hattem

President's Report

Quirky Cases

Editor's Opinion

Cartoon

Ethics Column

Law Coucil Update

Federal Court Judgments

Professional Announcements

High Court Judgments

Classifieds

Family Law Case Notes

New Members

WA Case Notes

Ordinary Members: Rebecca Bunney, Daniel Coster, Angie Gimisis, Ante Golem, Mark Hemery, Matthew Howard SC, June Kenny, Gary Mack, Judy McLean, Craig Slater, Brooke Sojan, Paula Wilkinson Junior Members: Thomas Camp, Selina Gates, Lea Hiltenkamp Country Member: Melita Medcalf Chief Executive Officer: David Price

PRESIDENT'S REPORT Jocelyne Boujos President, The Law Society of Western Australia

Welcome to the first edition of Brief for 2021, and my first President’s Report.

2021 UWA, Law Society and WA Legal Profession CPD Fundraiser

As I write this, Western Australia is in a hard lockdown following the Premier’s announcement on Sunday, 31 January and there are terrible fires raging in the north east of Perth. The Law Society and Law Access Limited, as members of the Disaster Legal Response Project Team and as per the Legal Aid WA Disaster Legal Response Plan, responded to the bushfire by assisting with the disaster legal response and will continue to do so. We also acknowledge the difficulties caused by the heavy rain and flooding that occurred in the west Kimberley, Pilbara and Gascoyne as a tropical low moved across the area earlier last week.

Last year, in January 2020, after the devastating bushfires in the Eastern States, the Society joined UWA and many other legal associations to host a special CPD fundraiser event to raise money for the Red Cross Australian bushfire relief fund. Following its success, the Western Australian legal profession is coming together again in a special 2021 CPD Fundraiser, “Access to Justice in a COVID-19 World”, to support the Women’s Legal Service WA, which has seen an increase in demand for services due to COVID-19. The Women’s Legal Service WA is a not-for-profit community legal centre that provides legal services to women across WA.

In light of all the challenges we faced last year, I would like to pay tribute to Immediate Past President, Nicholas van Hattem. Nick made an outstanding contribution to our Society and showed great leadership during the COVID-19 pandemic last year. Having no idea what shape the year would take he was nevertheless determined that all staff stayed safe and all members stayed connected. Nick, you “nailed” podcasts! I would also like to acknowledge the outstanding and unstinting support that the Law Society received from its Chief Executive Officer, General Managers and staff over the unprecedented challenging year that was 2020. Council was appreciative and remain indebted to all for the financial and personal sacrifices required by each to provide that support. In February, the Society’s new Council and Executive will hold our first meetings of the year. I welcome the new members who join the Council and I look forward to seeing what we can all achieve together for our profession and the wider community. The important work during my term as President will be: • Advocating for the Law Society’s Policy Positions on a range of matters in the forthcoming election. (See the Government’s and Opposition’s responses in this edition of Brief on page 10.) • Ensuring that the need for the changes to s14 of the Administration Act – 1903 are understood by relevant parties and that they are implemented. • Retention of the changes to legal practice and the administration of Justice made as part of COVID are maintained and supported to continue to provide more access to justice. • Implementation of Legal Profession Uniform Law. • Implementation of the new 2020/2023 Strategic Plan. • Continuing to work with the Law Council of Australia on addressing sexual harassment in the legal profession. COVID-19 Information and Resources Hub Following a challenging year dominated by the COVID-19 pandemic, I am hopeful that 2021 will be a positive and inspiring year for the Law Society and our profession. As we have seen from this latest sudden lockdown, Western Australia cannot be complacent. However, the legal profession has shown it is proactive and flexible and well positioned to maintain and continue building on its online modes of legal service delivery, including in the administration of justice, this year. The Law Society will continue to provide support to you during what will be the challenging time of a new “COVID-19 Normal World”, as we have done before, with resources and information to ensure you stay updated. Please refer to the Law Society’s website and our COVID-19 Information and Resources Hub for more information.

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The University of Western Australia, in partnership with the Law Society and supported by the WA legal profession, is hosting this special lecture event on Thursday, 25 February and I warmly encourage you to join us at this worthy fundraiser – and receive one CPD point for your support! The Chancellor of UWA, the Honourable Robert French AC, Chief Judge Julie Wager from the District Court and Dr Jacoba Brasch QC, the President of the Law Council of Australia, have kindly agreed to speak at the event. Details on how to register for this event are available here: https://bit.ly/3atsn44. We thank UWA Law School, the Asian Australian Lawyers Association, Association of Corporate Counsel Australia, Australian Lawyers Alliance, Community Legal WA, Criminal Lawyers Association WA, Family Law Practitioners’ Association of WA, National Environmental Law Association, Women Lawyers of Western Australia, the Piddington Society and the WA Society of Jewish Jurists and Lawyers for their support of the event. District Court 50th Anniversary Black Tie Gala Dinner Celebrating the conclusion of a special anniversary year, I hope to see you at the District Court 50th Anniversary Black Tie Gala Dinner, hosted by the District Court of WA and the Law Society at Crown Towers on Saturday, 27 February from 6.30pm. With less than four weeks to go, already over 500 tickets have been sold. I am however pleased to announce that we have recently been able to secure another 200 tickets for this long-awaited chance for the legal profession to come together for a special night. Guests will enjoy moments of celebration, quality hospitality and have fun on the dancefloor. You can purchase individual tickets, small groups and tables of 10 are available. To book your ticket or table please visit https://bit. ly/3pLsIFE. A special accommodation rate at Crown is also available for guests. Advocacy One of the objects of the Society, as outlined in its Constitution, is to promote the development and improvement of the law in Western Australia. To this end, the Society will continue to advocate for law reforms that will enhance the legal profession and benefit the community in 2021. State Election 2021 The Law Society has received responses to its Briefing Papers from both the Labor Government and Liberal Opposition. The responses are published on page 10 of this edition for members’ review. Uniform Law The prorogation of Parliament prior to the election has meant that the Uniform Law Application Bills have

lapsed. The latest advice the Law Society has received is that, if the Labor Government is returned, the Uniform Law will likely commence on 1 January 2022. The Law Society thanks its Working Group and CPD presenters for their work thus far and looks forward to their continued work to ready the profession for the change. (Special Note: Thomas Moorhead, Policy and Advocacy Lawyer of the Law Society, provides an interesting article on prorogation and its historical context on page 21 of this edition.) Statutory Legacy A further disappointment due to the bills having lapsed is that the Administration Amendment Bill 2018 was not passed. This means that the legacy paid to a spouse when their partner dies intestate remains hundreds of thousands of dollars less than is the case everywhere else in Australia. The lassitude of successive Governments in actioning this simple yet crucial legislative amendment of s.14 of the current Act is unacceptable for Western Australians. Mentoring Programme Expressions of interest are now open for the Law Society’s successful 2021 Mentoring Programme for Lawyers. The programme will be available to practitioners of all levels of practice post admission. It will commence in March and run through until November 2021. Please visit https://www.lawsocietywa.asn.au/ careers-in-law/mentoring-programme/ to complete an Expression of Interest form. Member Feedback I welcome any comments which members may have on any issues of concern to them. You can email me directly on president@lawsocietywa.asn.au. I look forward to being of service to you and wish all our members the very best for 2021!

Submissions Since the last Advocacy Column in Brief, the Law Society has made submissions on: • Review of the Privacy Act 1988 (Cth) • Letter to the Chief Justice – Searching for Grants of Probate on the Courts • Portal • Australian Taxation Office Consultation: Death and Taxes • Options to Enhance the Family Safety Competency of Legal Practitioners • Transparency of Legal Costs in Supreme Court Strategic Conferences and Mediations • Statutory Prohibition of Cross-Examination by Unrepresented Defendants in Civil Proceedings for Sexual Assault and Sexual Abuse • Continuing COVID-19 Procedures in the Supreme Court of Western Australia • Lodgment of Amended Pleadings and Track Changes • Letter on Draft Inspection Standards for the Office of the Inspector of Custodial Services • Submission on the draft Commonwealth Integrity Commission Bill • Letter to the Attorney-General and Minister for Health on the draft Advance Health Directive • Letters to State and Federal Attorneys-General on appointment of an additional judge in the Family Court of WA • Submission on Community Titles Regulations

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

Brief’s February edition customarily commences with hopes everyone is celebrating a great new year, and enjoyed a restful holiday season. It does so again, even though resting in one’s home is now sometimes mandatory, and January has not exactly covered itself in glory and shows that, just because something is new and seemingly replaces an out of control wild disaster, does not necessarily mean it is better (see Sammy Hagar replacing David Lee Roth as Van Halen’s front man). Brief readers treasure the rule of law and natural justice, so it is unfair to condemn 2021 this early. It is fair to say, however, that if January was going to show that 2021 was going to be so much a better host than 2020, it has already burnt the (45-minute late) entrees, isn’t allowing anyone to check up on the score in the big game, has Cher performing Ed Sheeran’s unreleased unplugged gems as mood music, and has run out of ice for the fruity lexia cask wine. There are so many unanswered questions for readers in these difficult times: what does the year have in store, and what is the next existential threat? Should I be plunging all my money into heavily shorted stock just to teach the hedge funds a lesson? And why am I watching and also recording “Holey Moley”? The warning signs for 2021 were arguably always there, in that it seems to be one year that even the Mayans didn’t predict the world would end – and they are prolific in their wild guesses, being the ancient masters of the “No? OK, best out 3, no? best out of 5, no? best out of 2867…”. The 2nd of February is a marquee day for one beloved prognosticator, the groundhog “Punxsutawney Phil” of Gobblers Knob, Pennsylvania - a figure brought to prominence in the fantastic 1993 Bill Murray film “Groundhog Day” (guess who has been spending lockdown watching old and free streaming movies)? To those unfamiliar with the traditional annual ceremony, if the groundhog emerges from its lair and sees its shadow, there will be 6 more weeks of COVID-19 lockdown winter. To those unfamiliar with the movie, it is, on its face, a 90’s rom-com, but is regarded by some as a profound meditation upon “eternal recurrence” as (very differently) viewed by Nietzsche and in Buddhism, and also upon existential will and

04 | BRIEF FEBRUARY 2021

self actualisation, with hat tips to Camus’ Myth of Sisyphus.1 Others simply enjoy seeing Murray and Andie McDowell finally getting together, which seems more fulfilling than, say, Hugh Grant and McDowell at the end of Four Weddings and a Funeral, though of course everyone was barracking unconditionally for Grant over Alec Baldwin with Julia Roberts in Notting Hill (the effect of the shutdown on the Editor seems to be more and more obvious). Groundhog Day is a Dutch tradition, and, early on in Pennsylvania it also had a darker side, in that the groundhog was likely eaten. According to the members of the swish 1880’s Pennsylvanian lodge at the time, groundhog tasted, rather predictably and unsurprisingly like “a combination of chicken and pork”2 (just like, it seems, any other unconventional meat one should think twice about consuming). Unfortunately, Punxsutawney Phil’s predictive strike rate is somewhat sketchy, coming in at under 40%, which is below the more impressive rate of his cross-state and much hated rival “Staten Island Chuck” but wildly above that of the Editor’s stockbroker. There has been much buzz about this Reddit/GameStop trading frenzy where ordinary folk can apparently make huge amounts of money off the hedge funds through buying obviously over-shorted stock, driving up the price and ruining the positon of the hedge funds. Or at least that seems to be what it is all about. This sort of thing is so confusing that one has to have recourse to the end of Trading Places to try to explain it all, but even that gets very confusing, and it is unclear whether Dan Ackroyd and Eddie Murphy ended up doing things as ethically questionable as the Duke brothers. Of course, a more comprehensive explanation might have been gleaned from “The Big Short” or “Wall Street” but not only did they carry a purchase or rental charge, but also didn’t have the great Denholm Eliott and Jamie Lee Curtis in them. 100 years ago an astonishing prognostication was made during a speech in Federal Parliament by Walter Marks, who predicted that Armageddon would be fought in 1934, leading to the Second Coming. The Biblical battle would be precipitated by Russia and Germany and “one other country I would rather not mention” combining to attack the British Empire 3, leading to the battle itself in

the Holy Land. Australia would have a role, predicted by the Biblical reference to the “merchants of Tarshish and their little lions”, the “little lions” being a reference to British colonies. While Marks wasn’t wrong about a World War breaking out in the 30’s, the speech at the time apparently interfered, for some reason, with his touted appointment as Secretary of the Navy. He was however appointed under-secretary to PM Billy Hughes4, who was seemingly hedging his bets, figuring if Marks did have such predictive powers, it was probably best, just in case, to have him close by. Details about what the speech related to are sketchy, though it may well have been the most spectacularly impassioned response ever to the Returned Soldiers’ Woollen Company Loan Act 1921. While the upcoming State election may not involve predictions of Armageddon, we are fortunate to have the Government and Opposition’s responses to the Society’s policy positions on a range of legal issues affecting the community and profession. And, with Parliament prorogued in December 2020, the Uniform Law application bills will have to be re-introduced at the next session of Parliament. Thomas Moorhead, Policy and Advocacy Lawyer at the Law Society, provides an insightful explanation and history of prorogation. This edition also includes Michael Douglas on “2020’s High Court Developments for the Law of Damages”, a great interview with Judge Mara Barone by the YLC, Brenda van Rensburg on the need for care with our digital footprint and steps to reduce brand damage, Information Commissioner Catherine Fletcher on Freedom of Information - from the Age of Enlightenment to the Digital Age and Beyond, and Tse Chee Loo of the Corruption and Crime Commission on the CCC’s beginnings, purpose and effectiveness. Hope you enjoy this jampacked edition! Endnotes 1 2 3 4

“Groundhog Day”, M Faust, philosophynow.org “The Original Groundhog Day Involved Eating the Groundhog” J Latson, 2/2/15, time.com "Armageddon". The Sydney Morning Herald. 4 November 1921. “Marks, Walter Moffitt (1875 - 1951)”. Australian Dictionary of Biography.

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

1970 â&#x20AC;&#x201C; 2020

An elegant black tie evening bringing together the WA legal profession. An historic occasion not to be missed, join us as we reflect on the contributions the District Court of Western Australia and its members, past and present, have made to the State of Western Australia over the last 50 years. Enjoy great food, fine wine, music and company; the night will also feature moments of celebration and reflection.

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

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2020’s High Court Developments for the Law of Damages by Michael Douglas Consultant, Bennett + Co and Senior Lecturer, University of Western Australia and Jess Border, Solicitor, Bennett + Co

2020 was not ideal. We need to appreciate silver linings when we come across them. Here is a shiny one: in 2020, Australian courts produced a number of interesting decisions on damages. Here, we look at three crackers from the High Court: Berry, Lewis and Moore. This article concerns the ‘law of damages’ in the sense of the law concerning awards of money for civil wrongs.1 So understood, this body of law captures more than common law damages for common law causes of action. We live in an age of statutes,2 and so several of 2020’s leading cases within the ‘law of damages’ concern matters of statutory interpretation.

Damages under the Australian Consumer Law The prohibition on misleading or deceptive conduct in s 18 of the Australian Consumer Law (ACL)3 has had an ‘extraordinary, and even revolutionary, impact on Australian law’.4 Where a person suffers loss or damage because of prohibited misleading or deceptive conduct, then under ACL s 236, that person ‘may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention’. These provisions are frequently litigated before Australian courts. Given their regular consideration, one would think that their meaning would be settled. However, in relation to an action for damages under ACL s 236, courts have vacillated on the appropriate measure of damages.5 The question is one of statutory meaning. The starting point is the text of the statute,6 construed in light of its context and purpose.7 Textual references to ‘loss or damage’ and ‘damages’ suggest that the measure of ‘damages’ under ACL s

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236 ought to build upon principles relating to damages in non-statutory contexts.8 This construction rightly situates the statutory text within its broader context of the state of the law upon the section’s enactment.9 Thus French J, as his Honour was, once held that awards under predecessor provisions are ‘essentially compensatory in character’.10 In Henville v Walker,11 McHugh J, Gummow and Hayne JJ held that common law measures of damage for actions in tort and contract will often be of ‘great assistance’ in determining the appropriate measure of compensation for misleading or deceptive conduct.12 Courts often determine the measure of damages for ACL s 236 claims by analogy to the tort of deceit.13 Like other claims in tort, damages for deceit aim to put the plaintiff in the position they would have been had the representation not been made.14 Yet, as Treitel once said, ‘there is more than one way of “not committing” the tort of deceit’.15 Moreover, courts are not required to take the deceit approach; in certain contexts, a different measure, like that applicable to negligent misstatement, will be more appropriate.16 The policy of the law of negligent misstatement is more apt to the arms-length relationship underlying many cases concerning failed businessto-business transactions, and the purpose behind the creation of the ACL (inter alia, encouraging fair competition in a market economy) that must inform the construction of s 236.17 In a commercial context, parties should take some responsibility for protecting their own interests.18

Courts are not bound to make a definitive choice between competing measures of damages.19 As Gleeson CJ said in Henville, the court’s ‘task is to select a measure of damages which conforms to the remedial purpose of the statute and to the justice and equity of the case’.20 The appropriate measure is not even to be confined by analogy to actions in contract or tort.21 In the words of Gummow J, analogy ‘is a servant not a master’.22 Overreliance on previous case consideration of the appropriate measure of damages under s 236 risks transforming the text of the statute into case law—a tendency cautioned against by Justice Leeming.23 The malleability of the measure of damages under ACL s 236 provides opportunity for interesting case developments. One such development is the Berry case.

Berry v CCL Secure Pty Ltd24 In August, the High Court provided an important decision on ss 52 and 82 of the Trade Practices Act 1974 (Cth)—the predecessor provisions to ACL ss 18 and 236. It considered an interesting question: where a party terminates a contract in contravention of the ACL, can that wrongdoer minimise the measure of loss via the argument that, but for the contravention, they would have terminated the contract lawfully?25 The appeal was brought by Dr Berry, a successful entrepreneur, and a company controlled by him. The appellants were party to an agency agreement with Securency (now CCL Secure), a joint venture vehicle which achieved the successful commercialisation of the production and printing of polymer bank notes in the 1990s. Securency had engaged the appellants for the purposes of cultivating a business relationship between itself and the

Nigerian government. Under the agency agreement, the appellants were entitled to a 15% commission on the net invoiced sale value of opacified polymer to the Nigerian government. But Securency ‘hatched a surreptitious plan’26 to replace the appellants and avoid the cost of their commission. One of Securency’s directors engaged in misleading or deceptive conduct by deliberately deceiving Dr Berry into signing a termination notice in 2008, terminating the agency agreement while keeping up the pretence that the appellants were still agents. In proceedings before the Federal Court27 the parties accepted that, if there were misleading or deceptive conduct, the appropriate measure of loss would be the commissions payable had the agency agreement not been terminated due to misleading or deceptive conduct. The parties disagreed on what commissions would be payable—that is, they disagreed on the character of the counterfactual. The appellants had argued that the agency agreement would have been automatically renewed, as provided for in its terms. They argued that the agreement would have continued until at least 2010, when Securency terminated all of its agency agreements following bribery allegations. Securency countered that, but for the wrongful conduct, it would have terminated the agreement lawfully with notice, which was also available under the agreement. The primary judge favoured the appellants’ view.28 The Full Court saw the matter differently, holding that, in assessing the appropriate measure of compensation under TPA s 82, the Court should have considered what would otherwise have been done had the wrong not occurred, on the balance of probabilities.29 They inferred from the absence of evidence of substantive involvement of the appellants in Securency’s business in 2008 that Securency would have lawfully terminated the contract with notice in 2008. Before the High Court the proper approach to the onus of proof was central. Bell, Keane and Nettle JJ explained: As claimants under s 82 of the TPA, Dr Berry and GSC generally bore the legal burden of establishing the existence and amount of the loss or damage that they suffered by Securency’s misleading or deceptive conduct in contravention of s 52 of the TPA. That entailed establishing the net “value or worth of the rights and benefits” that they surrendered upon Dr Berry signing

the termination letter.30 That a plaintiff must establish the elements of their cause of action is trite. The proposition is simple but its application in a particular case may be difficult. For example, causation is an element of a claim for damages for misleading or deceptive conduct; that is, the damage must be suffered ‘by’ the contravening conduct.31 But counterfactual theories of causation require appeal to a state of affairs that never existed—how do you prove what never was?31 The evidentiary tools of civil litigation are a blunt instrument to solve such metaphysical problems.33 Moreover, in certain circumstances, the practical burden of introducing evidence probative of an important fact may shift.34 The majority explained: where, as here, it is established on the balance of probabilities that a wrongdoer purposely chose to achieve a certain result by means of a calculated deceit, the natural inference is that the wrongdoer was not and would not have been prepared to bring about that result by lawful means… So, in the absence of contrary evidence, it may be inferred that the reason for engaging in the fraud was sufficient to dissuade the fraudster from proceeding by lawful means. The evidential burden thereupon shifts to the fraudster to adduce evidence sufficient to establish that, if it had not acted as it did, it would have been prepared to bring about the same result by lawful means. And in the absence of such evidence, it is fair to infer that there was not a realistic possibility of that occurring.35 The majority concluded that Securency had not discharged the evidential burden to prove it would have lawfully terminated the contract. The appellants thus succeeded, undoing the Full Court’s decision. Gageler and Edelman JJ characteristically provided additional reasons in support of the same conclusion. Their Honours provided a helpful reminder of the malleable measure of damages for misleading or deceptive conduct: Given that the only action on which Dr Berry and GSC succeeded against Securency was an action under s 82 of the Trade Practices Act 1974 (Cth) to recover the amount of the loss which Dr Berry and GSC claimed to have suffered by conduct of Securency in breach of s 52 of that Act, the findings of the primary judge couched in the conclusory language of a common

law action in deceit have been an unfortunate distraction.36 Their Honours also emphasised the importance of pleading to the question of the appropriate measure of damages. Had the appellants pleaded their damage in terms of a loss of value of contractual rights, their burden may have been easier; instead they framed the pleaded damage in terms of a loss of commission, a somewhat more difficult task.37 The intersection of the remedial principles with those concerning practice and procedure should make Berry a case that will be cited frequently in commercial litigation.

Vindicatory damages Common law damages aim to compensate. Yet in various situations, damages awards may serve other purposes. In defamation law, for example, damages may be awarded to ‘vindicate’ the plaintiff’s reputation: that is, as a signal to the public that a wrong has occurred.38 More than a decade ago, Professors Witzleb and Carroll explained that damages awards for several other torts—including trespass and negligence—may have a vindicatory character.39 The 20th edition of McGregor on Damages, edited by Justice Edelman, describes ‘vindicatory damages’ as a ‘controversial’ type of damages unconcerned with loss.40 They are awarded in response to the infringement of a right,41 like a right to privacy. In Mosley v News Group Newspapers Ltd, for example, Eady J explained that damages for an infringement of privacy were available to afford ‘some degree of solatium to the injured party’.42 Other English cases concerning the tort of misuse of private information43 have similarly awarded damages of a vindicatory nature.44 Unfortunately, despite a close call in Smethurst v Commissioner of Police,45 that tort is still not recognised in Australian law. The instances where vindicatory damages seem to be awarded overseas involve infringements of personality rights: rights to reputation and privacy.46 These rights are justified on various bases, including the value of dignity and autonomy.47 A tort with a similar rationale is false imprisonment. The tort is actionable per se; does that mean that a court may award substantial damages, purely to provide a plaintiff with vindication? This is a controversial issue,48 which the High Court considered in Lewis.

Lewis v Australian Capital Territory (2020) 94 ALJR 740 The appellant, Lewis, failed to comply with a sentence of periodic detention to be served on weekends. He was notified by the Sentence Administration Board of an inquiry on point, which he then failed to attend. Lewis’ periodic detention was cancelled by the Board under statute; he was arrested and imprisoned for 82 days.

that vindicatory damages were available stating, ‘[t]here is no need, nor is there any basis in principle, for the Court to recognise a separate head of vindicatory damages. Existing remedies are sufficient’.56 Her Honour identified exemplary damages,57 nominal damages,58 declarations,59 and indemnity costs60 as ‘weapons’ which could operate to vindicate a plaintiff’s rights where necessary.

Lewis successfully challenged the cancellation of his periodic detention on the basis that he was denied procedural fairness by the Board. Lewis was granted bail pending the hearing of that challenge and was never ultimately required to serve his initial sentence of periodic detention.

Edelman J commenced his reasons by identifying the two ways the compensatory principle operates to remedy a wrong: to rectify the wrongful act, or provide further compensation needed for adverse consequences suffered by the victim.61

In the proceedings before the High Court, Lewis sought substantial or vindicatory damages for false imprisonment for the 82 days of imprisonment that he had served before being granted bail.

His Honour rejected the argument that substantial damages are always available for false imprisonment as an act that is actionable per se on the basis that a right has been infringed, calling such a concept a ‘radical, novel, and fascinating re-interpretation of the law’.62

Lewis articulated three bases upon which he sought damages from the Australian Capital Territory as a result of the false imprisonment:

3. an award of compensatory damages for the adverse consequences, or non-pecuniary loss, that he experienced by being deprived of his liberty for 82 days.

Lewis’ attempt to rely on the ‘user fee’ principle (which allows the court to rectify a wrongful act by ordering the defendant to pay an amount which would have made the act lawful)63 was rejected: ‘[Lewis’] consent was irrelevant to the lawfulness of the act and his imprisonment by statute could never have been a matter the subject of a monetary payment for permission’.64 None of the authorities65 relied upon by Lewis were accepted by Edelman J as supporting Lewis’ position.

Across four separate sets of reasons, the appeal was dismissed. Gordon J and Edelman J each provided extensive consideration to the substantive legal issues.

His Honour also rejected the submission that vindicatory damages were available to Lewis. After briefly considering the likely origin of such damages in the law of defamation, Edelman J stated:66

1. damages for infringement of his right to liberty (independently of any consequences of that infringement); 2. an award of ‘vindicatory damages’ to vindicate his right to liberty;49 and

Gordon J drew a distinction between liability and the loss which flows from such liability.50 Her Honour emphasised that there is ‘no role for a counterfactual analysis’ on the question of liability for the tort of false imprisonment,51 but such analysis is necessary in the assessment of the calculation of loss.52 Her Honour identified Lewis’ failure to distinguish between questions of liability and remedy as a flaw in his argument,53 and Lewis’ reliance on authorities in which tortious conduct led to an award of damages with no counterfactual analysis as ‘misplaced’.54 The fact that the counterfactual demonstrated that Lewis’ imprisonment was inevitable key to her reason; her Honour noted that, ‘absent loss or injury, there is nothing to compensate’.55 Her Honour also rejected the contention

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if the plaintiff’s general reputation was so poor prior to the publication that the statement or implication could do no further injury then this element of ‘vindication’ would require only nominal damages. The same is true of infringement of a right by an act of assault or false imprisonment where no loss is suffered: ‘the law vindicates that right by awarding nominal damages’. (While historically, nominal damages could be awarded for defamation,67 recent authority on existence of a common law ‘threshold of seriousness’ suggests that in this kind of defamation case, there would be no tort at all;68 thus, vindication in defamation is now only achieved through substantial damages. In any event, that authority will soon be rendered moot with acceptance of the 2020 Uniform

Defamation Amendment Provisions, which render serious harm an element of the tort.)69 His Honour appeared to accept that, in exceptional circumstances, it may be necessary to abolish the causal requirement that the wrongdoing must be necessary for the loss,70 but ultimately, no such circumstance applied in this case. As for Kiefel CJ and Keane J, their Honours predominantly aligned with Edelman J’s reasons, particularly highlighting their approval of the fact that ‘the notion that “vindicatory damages” is a species of damages that stands separately from compensatory damages draws no support from the authorities and is insupportable as a matter of principle’.71 The ultimate basis for their Honours decision was that Lewis had not ‘suffered any real loss at all’72 as he had not been deprived of ‘a moment of freedom from imprisonment that he was legally entitled to enjoy’. As Lewis’ right to freedom was ‘circumscribed by the demands of justice expressed in the sentence of imprisonment to which he was subject’73 he was not ‘lawfully at large’ when he was taken into custody and therefore did not suffer any loss. Gageler J agreed with Gordon J’s reasons as to the non-recognition of a distinct species of vindicatory damages, but wrote separate reasons on Mr Lewis’ non-entitlement to damages.74 His Honour’s reasons placed emphasis on the importance of framing the counterfactual correctly. In Lewis’ case, the counterfactual position was evident: Lewis’ period of detention, and the conditions imposed, would not have been different and as such Lewis had not suffered any compensable loss. In sum: the case affirms the sentiment, seen also in cases like Fernando,75 that suing for false imprisonment will be of limited practical utility in a great many cases: where lawful detention would have occurred but for unlawful detention. With respect, while the causal reasoning behind such cases is sound, the policy underlying the reasoning is less than ideal for expression in the law of a liberal democracy. Vindication is about reinforcing the importance of particular interests76—cases like Lewis show that freedom from unlawful detention is not as important as you might think.

Damages for disappointment in the age of statutes Disappointing holidays were another theme of 2020. Who should be responsible for that disappointment?

First year law students could tell you that where you have suffered disappointment in a contractual relationship where the object of that contract was to provide enjoyment or relaxation, then damages for disappointment and distress may be available. As much was decided by the High Court in Baltic Shipping Co v Dillon.77 In the Moore case, the High Court grappled with the interaction between that principle, the ACL and the Civil Liability Act 2002 (NSW) (CLA).

Moore v Scenic Tours Pty Ltd

The Court considered a dispute over a European river cruise. Scenic’s brochure promised Moore and his wife a luxurious ‘once in a lifetime cruise along the grand waterways of Europe’. They spent their life savings on the booking. Bad weather meant that they spent only 3 days of 10 on the water. The majority of their time was spent on a bus, being miserable. Moore commenced representative proceedings on his behalf and that of 1500 other passengers, seeking damages under ACL s 267(4). The High Court affirmed that the passengers were owed the consumer guarantees in the ACL. They were able to recover compensation for the reduction in the value of the services below the price paid to Scenic, even though the substance of those services was delivered overseas. Because they paid for a luxury cruise and wound up on a bus, Moore was awarded $10,990 compensation. As the contract was aimed at providing enjoyment and relaxation, Moore argued that disappointment and distress was thus compensable under s 267(4), consistent with Baltic Shipping. Scenic countered that CLA s 16(1) ought to apply to damages awarded for disappointment and distress, precluding relief: No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case... The Court held that, although ‘disappointment and distress’ is noneconomic loss, this aspect of the CLA was inapplicable as it is concerned exclusively with claims for damages for personal injury. This was not a claim for personal injury. The case is valuable for its consideration of the scope of the provisions of the CLA that limit the availability of damages in certain contexts; for reaffirmation of the Baltic Shipping principle; and for its reminder that, in the age of statutes, issues concerning damages will often be

resolved with regard to the text, context and purpose of the statute.79

Conclusion 2020 was an unusual year in many ways. For fellow enthusiasts of the law of damages, 2020 was also unusual for serving up three interesting High Court cases on damages. Thank you, High Court, for entertaining us.

34 35 36 37 38 39 40 41

Endnotes 1 2 3 4 5

6 7 8

10 11 12 13

14 15 16

17 18

19 20 21 22 23 24

26 27 28 29 30 31

James Edelman (ed), McGregor on Damages (Sweet & Maxwell, 20th ed, 2018) [1-001]. Coined by Guido Calabresi, A Common Law for the Age of Statutes (Harvard University Press, 1985). Competition and Consumer Act 2010 (Cth) sch 2. Jeannie Marie Paterson, Corones’ Australian Consumer Law (Lawbook Co, 4th ed, 2019) 80 [3.10]. Elise Bant and Jeannie Marie Paterson, ‘Exploring the Boundaries of Compensation for Misleading Conduct: The Role of Restitution under the Australian Consumer Law’ (2019) 41(2) Sydney Law Review 155, 160. Eg reliance-based measure in Marks, cf an expectationbased measure in Murphy: Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388. SAS Trustee Corporation v Miles (2018) 265 CLR 137, [20] (Kiefel CJ, Bell and Nettle JJ). Moore v Scenic Tours Pty Ltd (2020) 97 ALJR 481, [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); Acts Interpretation Act 1901 (Cth) s 15AA. An approach advocated by Elise Bant and Jeannie Marie Paterson, ‘Exploring the Boundaries of Compensation for Misleading Conduct: The Role of Restitution under the Australian Consumer Law’ (2019) 41(2) Sydney Law Review 155, 160. An approach to statutory construction described by Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 9, [66] (Gageler J). Musca v Astle Corp Pty Ltd (1988) 80 ALR 251, 262. Henville v Walker (2001) 206 CLR 459 Henville v Walker (2001) 206 CLR 459, [130] (McHugh J, Gummow and Hayne JJ agreeing), considering ss 52(1) and 82(1) of the Trade Practices Act 1974 (Cth). Kizbeau Pty Ltd v W G & B Pty Ltd (1995) 184 CLR 281, 291 (Brennan, Deane, Dawson, Gaudron and McHugh JJ); Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413, [129] (Kirby and Callinan JJ). Gould v Vaggelas (1985) 157 CLR 215. GH Treitel, ‘Damages for Deceit’ (1969) 32(5) Modern Law Review 556, 557–8. See Elise Bant and Jeannie Paterson, ‘Limitations on Defendant Liability for Misleading or Deceptive Conduct under Statute: Some Insights from Negligent Misstatement’ in Kit Barker, Ross Grantham and Warren Swain (eds), The Law of Misstatements: 50 Years on from Hedley Byrne v Heller (Hart Publishing, 2015) 159. Applying Acts Interpretation Act 1901 (Cth) s 15AA. See Elise Bant and Jeannie Paterson, ‘Limitations on Defendant Liability for Misleading or Deceptive Conduct under Statute: Some Insights from Negligent Misstatement’ in Kit Barker, Ross Grantham and Warren Swain (eds), The Law of Misstatements: 50 Years on from Hedley Byrne v Heller (Hart Publishing, 2015) 159, 162. Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1, 14 (Mason, Wilson and Dawson JJ). Henville v Walker (2001) 206 CLR 459, [18] (Gleeson CJ). Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494, [17] (Gaudron J); Henville v Walker (2001) 206 CLR 459, [18] (Gleeson CJ). Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494, [103] (Gummow J). Mark Leeming, The Statutory Foundations of Negligence (Federation Press, 2019) 3. (2020) 94 ALJR 175; [2020] HCA 27. See the helpful account by Professor Barnett: Katy Barnett, ‘Berry v CCL Secure Ltd’, Opinions on High (blog), 7 August 2020. An analogous argument was accepted by the Federal Court in a false imprisonment case (the argument: but for unlawful detention, there would have been lawful detention): Fernando v Commonwealth of Australia (2014) 231 FCR 251. As emotively recounted by the majority at [11]. Berry v CCL Secure Pty Ltd [2017] FCA 1546. Ibid [19], [21], [24], [322], [327]. CCL Secure Pty Ltd v Berry [2019] FCAFC 81, [218]. Berry v CCL Secure Pty Ltd (2020) 94 ALJR 715, [28] (citations omitted). Ibid [27].

42 43 44 45 46 47 48

49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68

69 70 71 72 73 74 75 76 77 78

Explored in Michael Douglas, ‘How to prove what never was: AVWest Aircraft Pty Ltd v Clayton Utz and evidence of what company directors would have done’ (2018) 25 Torts Law Journal 86. See James Edelman, ‘Unnecessary causation’ (2015) 89 Australian Law Journal 20. Berry v CCL Secure Pty Ltd (2020) 94 ALJR 715, [39]. Ibid [39] (citations omitted). Ibid [63]. Ibid [66]–[67]. See Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44. Normann Witzleb and Robyn Carroll, ‘The Role of Vindication in Torts Damages’ (2009) 17 Tort Law Review 16. James Edelman (ed), McGregor on Damages (Sweet & Maxwell, 20th ed, 2018) [1-009]. James Edelman (ed), McGregor on Damages (Sweet & Maxwell, 20th ed, 2018) [17-001]. Mosley v News Group Newspapers Ltd [2008] EMLR 20, [231]. See generally PJS v News Group Newspapers Ltd [2016] AC 1081. Eg, Gulati v MGN Ltd [2015] EWHC 1482. Smethurst v Commissioner of Police (2020) 94 ALJR 502. Which are expressly recognised in human rights legislation of a few Australian jurisdictions, eg Human Rights Act 2019 (Qld) s 25. See Campbell v MGN Ltd [2004] 2 AC 457; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. Michael Douglas, ‘What is the Value of Freedom? Nominal Damages for False Imprisonment’ (2013) 21(3) Tort Law Review 117, cf R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245. Edelman J described this contention as ‘functionally identical’ to the first argument advanced by Mr Lewis. Lewis v Australian Capital Territory (2020) 94 ALJR 740, [69], [72]. Ibid [45]. Ibid [50]. Ibid [72]. Ibid [75]. Ibid [96]. Ibid [104]. Ibid [117]. Ibid [118]. Ibid [119]. Ibid [120]. Ibid [140]. Ibid [153] citing Burrows, Remedies for Torts, Breach of Contract, and Equitable Wrongs (OUP, 4th ed, 2019) 46. Ibid [144]. Ibid [155] Including Plenty v Dillon (1991) 171 CLR 635 and Ashby v White (1703) 2 Ld Raym 938. Lewis v Australian Capital Territory (2020) 94 ALJR 740, [172] (citations omitted). See generally David Rolph, Defamation Law (Law Book, 2016) [15.10]. Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946; Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985; Kostov v Nationwide News Pty Ltd [2018] NSWSC 858; Armstrong v McIntosh [No 2] [2019] WASC 379; Armstrong v McIntosh [No 4] [2020] WASC 31. See, eg, Defamation Amendment Act 2020 (NSW) sch 1 item 6 (introducing a new s 10A to the Defamation Act 2005 (NSW)). Lewis v Australian Capital Territory (2020) 94 ALJR 740, [184]. Ibid [2]. Ibid [3]. Ibid [17]. Ibid [22]. Fernando v Commonwealth of Australia [2014] FCAFC 181. Jason NE Varuhas, Damages and Human Rights (Hart Publishing, 2016) 50. Baltic Shipping Co v Dillon (1993) 176 CLR 344. Moore v Scenic Tours Pty Ltd (2020) 94 ALJR 481. Aspects of the following are extracted from: Michael Douglas, Dalitso Banda and Chloe Tolley, ‘Damages for the disappointment of a dodgy holiday’, Bennett + Co (online), 30 April 2020 https://bennettandco. com.au/areas/comm-litigation/damages-forthedisappointment- of-a-dodgy-holiday/. See, eg, Moore v Scenic Tours Pty Ltd (2020) 94 ALJR 481, [37].

State Election – State Government and Opposition Respond to Law Society Policy Positions

In November 2020, the President of the Law Society of Western Australia wrote to both the Hon Mark McGowan MLA, Premier of Western Australia, and the Hon Liza Harvey MLA, (then) Leader of the Opposition asking them to respond to the Law Society’s policy positions on a range of legal issues affecting community members and the legal profession in Western Australia.

million in legal assistance, accompanied by a suitable contribution from the States.

The letters and policy statements in their entirety are available at lawsocietywa.asn.au.

1. The establishment of an independent body which has access to government department databases and statistics so that high-risk communities can be identified.

Legal Assistance Funding The Law Society of Western Australia continues to promote the Law Council of Australia’s Policy Statement: Legal Assistance Funding and seek the support of the Commonwealth Government to immediately provide a further $120 million to cover civil legal assistance, with the States and Territories contributing $80 million (a total of $200 million), as recommended by the Productivity Commission.

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The Law Society of Western Australia recommends that the State Government adopts a justice reinvestment strategy and advocates for a nationally consistent approach. This requires:

$256 million over the five-year period for the provision of frontline legal services (including civil legal assistance by Aboriginal Legal Services WA, Legal Aid WA and Community Legal Centres (CLCs).

2. Advocating for the adoption of standardised data collection nationally and the contribution to such data by the Government of Western Australia.

The Western Australian Government is committed to sustainably funding legal assistance in the State. It has provided approximately $55 million per annum to the Legal Assistance sector which includes Legal Aid WA, CLCs and Aboriginal Legal Services.

4. The re-investment of the justice system savings in community-led and Indigenous-led diversionary and early intervention programmes and initiatives to reduce recidivism.

LABOR On 1 July 2020, the Department of Justice (Department) took over the administration of the National Legal Assistance Partnership Agreement (NLAP) 2020-25. Under the NLAP, the Commonwealth provides the State with approximately

Justice Reinvestment

LIBERAL We acknowledge the Law Society’s support for the Law Council of Australia’s Policy Statement: Legal Assistance Funding and will urge the Commonwealth Government to provide a further $120

3. The identification of savings within the justice system.

5. Additional Federal and State funding to support the diversionary approach. 6. The development of a pilot programme in WA in consultation with key Aboriginal people and organisations, particularly Social Reinvestment WA.

LABOR The Western Australian Government has introduced a number of initiatives that draw on justice reinvestment principles, including the Justice Reform Project and the Kimberley Juvenile Justice Strategy (KJJS). In March 2020, the State Government announced $6.2 million funding to reinvest in a number of KJJS initiatives as part of its Commitment to Aboriginal Youth Wellbeing. Applying a co-design and place-based approach to developing local solutions to local issues alongside Aboriginal communities, KJJS seeks to respond to the multiple and complex reasons contributing to young peoples’ offending in a holistic and collaborative manner. As part of KJJS, the Youth Engagement Night Officer (YENO) night patrol program, established through the Olabud Doogethu Justice Reinvestment Project, was recently funded for a two year term, totalling $635,000. Opportunities for court diversion have been expanded with the creation of the pilot General Court Intervention Program (GCIP) The GCIP has been established as a three-year pilot with total WA Government funding of $6.6 million. The recommendation for the creation of an independent crime statistics body has been met via the establishment of the WA Office of Crime Statistics and Research (WACSAR) The creation of WACSAR will support an evidence-based approach to justice policy and crime prevention in Western Australia, and will complement the national role of the Australian Institute of Criminology. The Department and its partner agencies use the Justice Pipeline Model (JPM) to estimate cost savings associated with different reform options. LIBERAL The Law Society’s recommendations are noted. They reflect the approach towards diversion away from the criminal justice system, and prevention of crime through early intervention, that the previous Liberal Government was exploring through several pilot programs and alternative sentencing dispositions. The Liberal Opposition supports the development of evidence-based crime prevention strategies tailored to address the drivers of crime, at the community level.

Amending the Administration Act 1903 (WA) to Increase the Statutory Legacy The Law Society of Western Australia supports the increase of statutory legacy, as proposed by the Administration Amendment Bill 2018 (WA). LABOR The WA Government continues to support the intent behind the amendments that were contemplated by the now lapsed Administration Amendment Bill 2018. LIBERAL Amending legislation to increase the statutory legacy was prepared under the previous Liberal Government, but could not be introduced before Parliament was prorogued for the 2017 election. As I advised the Law Society in February 2017, we intended to progress amendments in 2017. The current Government’s Administration Amendment Bill 2018 was introduced into the Assembly on 27 June 2018. It was brought on and debated on 3 April 2019 and passed and introduced into the Legislative Council later that day. The Liberal Opposition supports the Bill, but the Government decides which bills are to be brought on for debate, and when and for how long. The Government has not brought the Bill on for debate in the Legislative Council and it has never appeared in the Weekly Bulletin of Council business the Government publishes on the Friday before a sitting week, listing legislation it hopes to deal with. A Liberal Government will effect this worthy, necessary, and long overdue reform.

Death Penalty The Law Society of Western Australia supports the implementation of the recommendations arising from the Joint Standing Committee on Foreign Affairs, Defence and Trade’s Report into Australia’s Advocacy for the Abolition of the Death Penalty: •

Promptly conduct a review of legislative arrangements for extradition and mutual assistance to ensure that they uphold Australia’s obligations as a signatory to the Second Optional Protocol to the International Covenant on Civil and Political Rights;

•

Strengthen Australia’s domestic legal framework and arrangements to

ensure Australia does not expose a person elsewhere to the real risk of execution; and •

Implement strategies to achieve the policy goals outlined in Australia’s Strategy for Abolition of the Death Penalty, published by the Department of Foreign Affairs and Trade. LABOR

The recommendations relate to legislation and policy within the jurisdiction of the Commonwealth. The WA Government unequivocally opposes the death penalty. LIBERAL The Liberal Opposition notes the Law Society’s position. It does not support, and has no intention of introducing, capital punishment.

Deaths In Custody And Incarceration of Aboriginal And Torres Strait Islander Peoples. The Law Society of Western Australia supports investment in holistic early intervention, prevention and diversion strategies to mitigate against involvement with the criminal justice system and incarceration. 1. Implement smarter, evidence-based and more cost-effective solutions which drive sustainable change and which help to prevent deaths in custody by avoiding the use of incarceration, other than as a last resort. 2. Integrate cultural values into the prison system in a communityled manner to create a sense of ownership both of the prison and the processes it follows and the issues facing the community which are driving such high rates of incarceration. 3. Any solution must be developed in partnership with the community and provide for leadership by the community in order to be successful and sustainable. The 12 key principles for reform outlined by the Change the Record campaign are adopted by the government in order to close the gap in the rates of imprisonment by 2040 and cut the disproportionate rates of violence to at least close the gap by 2040 with a prioritised focus on strategies to assist women and young people.

fundamental role of culture, language, community and spirituality, to reduce Aboriginal incarceration and improve wellbeing.

LABOR A re-elected McGowan Government will commit: $4.8 million for an Aboriginal-led specialist family violence court, that will be co-designed with the community, similar to the Barndimalgu Court in Geraldton.

•

$1.5 million to Stage 2 of the Olabud Doogethu Halls Creek Justice Reinvestment Project to support therapeutic, diversionary options in pre-sentence orders, culturally appropriate drug and alcohol services and mentoring on country.

•

The Barndimalgu Court, which focuses on Aboriginal family violence offenders in Geraldton, which provides an example of the use of alternative strategies to support improved outcomes for Aboriginal people in the criminal justice system.

•

$1.5 million for the Western Desert Justice Program, east of Newman (Martu Country), which offers therapeutic, diversionary options in pre-sentence orders, culturally appropriate drug and alcohol services and mentoring on country. The program is a data-driven approach to reduce criminal justice system expenditure and improve criminal justice system outcomes through reductions in imprisonment and offending.

•

Implementation of the West Pilbara plan, where the State Government works with Aboriginal elders, community members and providers in and around Roebourne to address intergenerational disadvantage.

•

The Justice Reform Project initiatives which aim to reduce overrepresentation of Aboriginal people in the State’s justice system through the following:

•

The Reducing Avoidable Remand initiative aims to reduce the volume and length of stay of those remanded in prison. This initiative is a three-year pilot and has two parts:

•

These commitments are in addition to the many initiatives undertaken by the McGowan Government since 2017, including: •

•

The introduction of the Custody Notification Service which addressed a long standing recommendation from the report on the Royal Commission into Aboriginal Deaths in Custody and that was reiterated as a recommendation from the coronial investigation into the tragic death of Ms Dhu who died in custody at South Hedland. The establishment of an Aboriginal Justice Advisory Committee to advise the Department on justice matters from an Aboriginal community perspective. This is a key commitment as part of the Department of Justice s Reconciliation Action Plan. The re-launch of the Aboriginal Mediation Service (AMS), a culturally informed alternative dispute resolution service focusing on early intervention and prevention of Aboriginal people coming into contact with the justice system. The adoption of a new approach to guide the way the Department works with and relates to Aboriginal people within Corrective Services. Known as PPP (Participation, Partnership and Promotion of culture). The PPP approach recognises the

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•

A partnership with Ngalla Maya to develop and implement a program to engage, support and mentor male remand prisoners at Casuarina Prison.

◊

Bail Support Service (BSS) and;

◊

Prison in-reach Legal Service

The Increasing Appropriate Access to Parole initiative includes the establishment of a two-year Parole in-reach Program (PiP) pilot that addresses an offender’s treatment needs by increasing their access to evidenced-based rehabilitation programs. These programs will be delivered in custody to support offenders’ suitability for parole release. Throughcare treatment programs will be provided in the community for offenders who are granted parole to support successful completion of their parole order. The establishment of a Suicide Prevention Taskforce was announced by the Minister for Corrective Services in August 2020, following the death of three prisoners at Acacia Prison, Roebourne Regional Prison and Melaleuca Women’s Prison that appeared to be self-harm incidents.

The WA Government has advanced a number of initiatives and reforms aligned with Change the Record’s key principles cited in the Law Society’s Brief. These include the continued support for the Kimberley Juvenile

Justice Strategy and the recent amendments to the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) to remove unnecessary imprisonment for fine default. LIBERAL We note the Law Society’s position. The Liberal Party’s aim is to reduce the rate of imprisonment generally, and of Aboriginal people in particular. We are also committed to reducing the disproportionate early mortality rate among Aboriginal people, whether in prison or otherwise. Given that imprisonment is a sentence of last resort, our objective always is to address the causes of crime that, if committed, would warrant and require imprisonment. This requires a ‘holistic’ approach in collaboration with Indigenous communities and organisations. A Liberal Government will continue to explore any reasonable evidence-based reform to give effect to such ends, while also being mindful of our responsibility to protect members of our community.

Mandatory Sentencing and how it Contributes to the Incarceration of Aboriginal and Torres Strait Islander Peoples in Western Australia The Law Society of Western Australia recommends that mandatory sentencing laws that apply to young people be repealed, and that the government instead take a justice reinvestment approach. A justice reinvestment approach includes: 1. investing in Indigenous-led and culturally relevant prevention; and 2. intervention and diversionary programmes that target at-risk young people and empower communities. Taking a strategic and holistic approach like this would bring Western Australia in line with international obligations and will make communities stronger and safer. LABOR Mandatory sentencing legislation in WA is restricted to a small number of offences. The Department has introduced measures to improve data collection processes to better monitor the impact of mandatory sentencing in WA - including for Aboriginal people. The Government’s reform agenda to reduce unnecessary incarceration remains

in progress, (please refer to responses to the ‘Closing the Gap’ and ‘Deaths in custody and incarceration of Aboriginal and Torres Strait Islander Peoples’ Briefing papers). LIBERAL We note the Law Society’s position on mandatory minimum sentences of imprisonment for such serious offences as home burglary, sexual assaults and other crimes committed against occupants in the course of home invasions, and assaults on public officers. We do not advocate prescribing minimum terms of imprisonment as a matter of sentencing policy. However, there is a place for targeted use of such laws to address specific offending trends for the protection of the community, to meet community expectations and maintain or restore community confidence in the criminal justice system, and where other strategies to correct unsatisfactory tariffs and sentences have not been effective. As presently advised the Opposition, if in Government, does not propose to repeal the ‘three strikes’ laws for home burglary, the provisions that were calculated to overcome the absurdity of multiple offences being counted as one ‘strike’, the minimum sentences of imprisonment for home invasions resulting in sexual assault or other harm to occupants, or minimum sentences of imprisonment for assaults on public officers.

Governments to fund adequate safe houses for Indigenous women and children to escape family and domestic violence and provide affordable housing for those left homeless by these situations. 2. The Western Australia Police to strengthen their efforts to recruit and retain Indigenous women and men as police officers and in corrective service roles.

The Law Society of Western Australia calls on: 1. The State and Commonwealth

4. The State Government to enhance non-custodial sentencing, a more flexible approach to fines enforcement, such as the initiatives of garnishing Centrelink benefits and wages rather than enforcing imprisonment, and the review of laws which have a disproportionate effect on Indigenous women, such as mandatory sentencing. 5. Where imprisonment is appropriate, the potential for rehabilitation should be optimised by ensuring adequate funding to address the needs of Indigenous women through the availability of culturally appropriate treatment programs to all prisoners and to avoid overcrowding. LABOR

1. Of the 40 family and domestic violence crisis accommodation services (being refuges and safe houses) operating throughout WA, eight are managed by Aboriginal corporations. All 40 family and domestic violence crisis accommodation services in WA are

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The McGowan Government has established a number of women’s refuges, that third parties are contracted to manage such as: a.

Mara Birni Healing Place, a one-stop hub in Kalgoorlie connecting people experiencing family and domestic violence with services and support they need. A satellite service of Mara Birni Healing Place will also operate in Laverton.

The recently constructed and opened Andrea Mia women’s refuge in Kwinana.

Kambarang Place Aboriginal women's refuge, a crisis accommodation service located in metropolitan Perth.

3. The State Government to continue funding the operation of Indigenous community courts, including Indigenous-led sentencing alternatives.

Crisis Accommodation Issues that Contribute to the Incarceration of Aboriginal and Torres Strait Islander Women in Western Australia

available to Aboriginal women in WA experiencing family violence who are seeking crisis accommodation.

Additional domestic violence outreach workers are also being deployed throughout the State, to assist women and their children escaping family and domestic violence as part of a $8.6 million initiative in the WA Recovery Plan.

Corrective Services 2. As at January 2021, around 7% of all current Corrective Services employees are Aboriginal or Torres Strait Islander, almost twice the WA Public Service target. This represents the Department’s commitment to ensuring cultural representation among staff can meet the needs of Aboriginal people in their care. The Aboriginal Justice Advisory Committee will have an initial focus on Aboriginal women and young

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people to drive policy, programmatic and legislative reform that will take into account unique issues faced by both cohorts to ultimately improve justice outcomes. 3. Aboriginal Courts The Barndimalgu Court located in Geraldton developed in partnership with the Geraldton Aboriginal community to help break the pattern of family and domestic violence in the region, as well as address the overrepresentation of Aboriginal people in prison. A re-elected McGowan Government will commit $4.8 million for an Aboriginal-led specialist family violence court, that will be co-designed with the community, similar to the Barndimalgu Court in Geraldton. 4. Amendments to laws with disproportionate effect on women •

•

The Fines, Penalties and Infringement Notices Enforcement Amendment Act 2020 (WA) received Royal Assent in June 2020, introduces a suite of changes including the introduction of garnishee orders and work development permits. In relation to the enhancement of non-custodial sentencing options, the last statutory review of the Sentencing Act 1995 (WA) was tabled in 2013. Another review of the Act will commence in the near future. The enhancement of non-custodial sentencing options will be examined during the course of this review. Offences related to driving without a licence are set out under the Road Traffic Act 1974 (WA) and do not fall within the responsibilities of the Department. However, the Fines, Penalties and Infringement Notices Enforcement Amendment Act 2020 (WA) imposed restrictions on the Fines Enforcement Registry from issuing licence suspension orders for debtors whose last known address is in a remote area.

5. Prison Rehabilitation Programmes With respect to programs that support rehabilitation, the Western Australian Government currently provides the Choice, Change and Consequences (CCC) program (which addresses a range of general criminogenic factors specifically for female offenders) and the Pathways program (non-gender specific, which addresses alcohol and other drug related offending behaviour).

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Wandoo Rehabilitation Prison is a dedicated facility for women to address their alcohol and other drug use within a therapeutic community framework. It offers a supportive environment where women can break the cycle of addiction. Women at Wandoo are supported via multidisciplinary case management to reduce addiction, improve mental and physical health, and reduce the chances of re-offending. In addition, the Boronia pre-release Centre for Women is a nationally-recognised facility that positively assists women prisoners as they transition to the community, assisting with training, employment and other supports. LIBERAL We note the Law Society’s recommendations. The Liberal Opposition supports the provision of sufficient and suitable safe houses for victims of family violence, Aboriginal or otherwise. We also support the exploration of alternative means of dealing with offenders, to encourage rehabilitation and reform, and diversion from future involvement with the criminal justice system. We support greater representation of Aboriginal and other ethnicities in our police and corrective services agencies.

Access to Justice Issues Faced By Aboriginal and Torres Strait Islander Peoples in Western Australia The Law Society of Western Australia calls on all parties to: 1. Improve funding to Community Legal Centres (CLCs), in particular to the Aboriginal Legal Service Of Western Australia (ALS) and the family Violence Prevention Legal Service (FVPLS) 2. Improve funding for interpretation and translation services within the courts, allowing Indigenous people to communicate with the court in their native Australian language 3. Improve funding for Indigenous judicial and corrective services staff LABOR

continues to provide funding to ensure that if a court user needs their court order explained to them, or if they request an interpreter at the registry counter of a court, an interpreter will be arranged. Funding also supports the use of in-court interpreters for court proceedings as directed by the judicial officer, or at the request of one or more of the parties. The Aboriginal Interpreting WA Service is widely utilised within Western Australian Courts. 3. Funding of Aboriginal Judicial and Corrective Services Staff An Aboriginal judge and two Aboriginal magistrates were recently appointed. Significantly, it is believed that this is the first Aboriginal judge appointed in Western Australian history. These appointments demonstrates the McGowan Government’s efforts to improve the representation of Aboriginal peoples and cultural competence in Western Australia’s courts. The appointment of Aboriginal departmental staff in the Department's Court and Tribunal Services division is demonstrated through the utilisation of the Aboriginal Workforce Development Strategy with designated SOD positions. This includes nine Senior Aboriginal Liaison Officers (SALOs) located at Magistrates Courts in Albany, Kununurra, Broome, Karratha, South Hedland, Carnarvon, Perth and Kalgoorlie, as one at the Perth Children’s Court. Overall, around 7% of all current Corrective Services employees are Aboriginal or Torres Strait Islander. Across the entire Department (excluding judicial staff), the current rate is over 6%. The Department has active recruitment campaigns to increase, retain and develop the number of Aboriginal and Torres Strait Islander staff across the Department. The Department also utilises Section 51 of the Equal Opportunity Act 1984 as an affirmative measure to increase its Aboriginal workforce. LIBERAL

1. This is addressed in Labor’s response to the Briefing Paper on ‘Legal Assistance Funding’.

We note the Law Society’s recommendations and their focus on Indigenous people.

2. Interpreting Services

However, many from other ethnic backgrounds, especially if not Australian-

The Western Australian Government

born, also encounter problems with understanding and navigating our justice system, and access to legal assistance and adequate interpretation and translation services. The State should through individual courts provide interpreters when requested or required. We are committed to investigating means of improving access to services that will facilitate access to justice for all Western Australians.

Bail The Law Society of Western Australia recommends that: 1. Resources should be allocated to ensuring that those accused who have bail granted are able to take up bail. 2. Adequate funding of bail co-ordinator positions, particularly Aboriginal and Torres Strait islander positions are essential. 3. Adequate funding of prison visiting services (such as Legal Aid and ALSWA) to ensure that those who are unable to meet the conditions of bail are quickly identified and, if appropriate, applications to vary bail conditions are made. 4. Any changes to the Bail Act 1982 that either dispense with bail, or make it easier to seek the removal of prohibitive conditions (such as surety conditions) should be encouraged. 5. Any amendments to the Bail Act should be clearly drafted. For example, if similar amendments

are proposed in a new Bill as were proposed in the lapsed Bail Legislation Amendment Bill, the Law Society seeks a detailed explanatory memorandum addressing requirements to take into account victim views if available. LABOR The Western Australian Government is committed to supporting individuals that face structural imbalances that prevent them from taking up bail. At the same time, the Government has sought to ensure that the bail process provides the necessary protection to the community and victims. Initiatives to date have included: 1. Bail co-ordination duties are undertaken at Central Law Courts to assist those arrested overnight to realise bail conditions including obtaining surety so they can be released from Court. A pilot Bail Support Service commenced in the Kimberley in October 2020. Two Bail Support Workers service the Broome and Derby Magistrates Courts, providing bail support to adults appearing in those courts, to assist them to comply with their bail conditions. Training staff in courts to support the uptake of bail where it has been granted. This includes the Northbridge Court, which operates on Saturdays and Sundays, and

public holidays (excepting Good Friday and Christmas day) where all staff are trained in the role of bail coordination to secure release at the earliest opportunity. 2. Bail coordination services are provided at Hakea Prison and Melaleuca Womenâ&#x20AC;&#x2122;s Prison to facilitate prisonersâ&#x20AC;&#x2122; release on bail. 3. The Justice Reform Project includes the Reducing Avoidable Remand initiative aimed at reducing the volume and length of stay of those remanded in custody by providing earlier access to bail to suitable applicants through the provision of prison in-reach legal services and bail support. These services target people who are suitable for bail but are unable to find surety or may be considered too unreliable to be released. Since the services commenced, there have been several cases where bail support resulted in surety being reduced or removed, allowing bail to be granted and reducing unnecessary time in prison. 4. Immediate amendments to the Bail Act 1982 dealing with adults accused of sexual offences against children will also be sought to strengthen protections for children, if returned to office. LIBERAL We note the Law Societyâ&#x20AC;&#x2122;s recommendations to facilitate the release of accused on bail.

The remand of accused on bail rather than in custody pending trial or sentence, especially for minor offences, is supported and to be encouraged, subject to ensuring that those on bail will attend court when required to do so, will not pose a danger to the community, and will not re-offend in the meantime. The previous Liberal Government’s Bail Legislation Amendment Bill 2016, which lapsed with the prorogation of Parliament before the 2017 election and which has not been reintroduced, sought to allow greater flexibility to dispense with bail or vary or revoke bail conditions.

Mandatory Sentencing The Law Society of Western Australia endorses the Law Council of Australia 2016 Federal election Policy Platform and thereby seeks the support of all Parties to: 1. Adopt policies which reject mandatory sentencing and repeal laws that impose minimum terms of imprisonment; 2. Refrain from the creation of new mandatory sentencing regimes; 3. Provide flexible sentencing options for offenders; and 4. Repeal mandatory sentencing laws and implement alternatives to mandatory sentencing, such as justice reinvestment strategies and diversionary non-custodial options, which may be more effective for reducing crime while remaining compatible with the rule of law and Australia s human rights obligations. LABOR Labor’s position on Mandatory sentencing is set out in the response to “Mandatory Sentencing and how it Contributes to the Incarceration of Aboriginal and Torres Strait Islander Peoples in Western Australia”. LIBERAL We note the Law Society’s position on mandatory sentencing regimes and have partially addressed the issue above. The last Liberal Government introduced a considerable range of ‘flexible sentencing options’ and shall consider further innovative strategies to reduce incarceration while meeting the important sentencing objectives of punishment, deterrence, rehabilitation and protection of the community. Mandatory sentencing laws are not uncommon and are the foundation 16 | BRIEF FEBRUARY 2021

of many of our road traffic laws, for example mandatory driver’s licence disqualifications, fines and the like. So far as mandatory minimum terms of imprisonment are concerned, we do not advocate them as a matter of sentencing policy. However, as mentioned above, we cannot discount the targeted use of such laws to address specific offending by those who inflict widespread harm to our community or commit abhorrent crimes, especially against the most vulnerable members of our community. I make the following observation in respect of the premise upon which the Briefing Note is based, namely that ‘parliaments are intervening in sentencing practices’ and that mandating certain sentences is a ‘manifestation of these parliamentary interferences . . . imposing unacceptable restrictions on judicial discretion and independence, and undermine fundamental rule of law principles’. Parliament has responsibility for deciding what will and will not constitute a criminal offence and making laws to that effect, not courts. Parliament has responsibility for deciding upon and setting the penalties for these offences, not courts. Parliament is accountable to the people of Western Australia for the efficacy of those laws, not courts. Prescribing sentencing options available to a judicial officer for particular offences, offending conduct and circumstances is the responsibility of Parliament, not courts. Parliament routinely sets boundaries for and constraints upon the exercise of judicial sentencing discretion, the most obvious being the maximum term of imprisonment that may be imposed for an offence and the prohibition (under section 86 of the Sentencing Act 1995) of sentences of imprisonment of 6 months or less. The courts have the responsibility for doing justice according to law, not through some unfettered or at-large discretion. Court sentencing discretion is frequently constrained with regard to precedent, tariffs, and by decisions of appeal courts. It is not uncommon for Parliament to legislate to reform or correct some injustice or undesirable decisions resulting from decisions by courts. For Parliament to decide the parameters within which a judicial officer can exercise his or her sentencing discretion is not an intervention, or interference with, or undermining of the rule of law – it is fundamental to the rule of law in a parliamentary democracy. The question whether a law made by Parliament is necessary, effective, or just is quite another matter and may usefully

be argued, but not on the basis that it is an improper interference with our courts.

Issues Affecting Incarceration Rates of Aboriginal and Torres Strait Islander Children The Law Society calls on all parties to: 1. Legislate to amend laws that do not conform with the Convention on the Rights of the Child (ConRC), with regards to detention as a measure of last resort and mandatory sentencing. The Criminal Code (WA) sometimes requires magistrates to impose mandatory minimum sentences on young offenders. 2. Legislate to ensure that children and adults are detained in separate facilities. 3. Commence work with all state and territory governments, through COAG, to identify and address gaps in the collection of standard and disaggregated data related to youth contact with the justice system. 4. Work with relevant WA agencies and stakeholders to identify areas of unmet need for bail accommodation. 5. Develop justice targets to reduce Indigenous youth detention rates and create safer communities. These should be developed in consultation with Indigenous People and their representative offender and victim organisations. 6. Develop youth bail legislation to require that pre-trial detention should occur only as a last resort where there is a flight risk or risk to the administration of justice upon release. Assessment should be case-by-case regarding necessity and proportionality. International human rights standards require that detention for persons awaiting trial must be the exception rather than the rule. LABOR 1. The Government remains dedicated to improving justice related outcomes for all the State’s young people, with a particular focus on Aboriginal and Torres Strait Islander young people. 2. The general principles to be observed under the Young Offenders Act 1994 (WA) (YOA) state that the detention of a young person in custody is to be in a facility that is suitable for a young person and at which the young person is not exposed to contact with any adult detained in the facility.

While a young person who has reached the age of 16 years may be held in a prison for adults, they cannot share living quarters with an adult prisoner. 3. The Australian Institute of Health and Welfare collects relevant data from each jurisdiction for the Youth Justice National Minimum Dataset. This data is used to inform nationallyreleased reports on youth justice. The Department of Justice will continue to implement measures, and work with its counterparts in other states and territories, to improve the collection of data that allows more effective policies to be developed to address youth justice matters. 4. The Department of Justice consistently collaborates with the Department of Communities for matters where the young person engaged in the justice system is under the care of the CEO of the Department of Communities. These initiatives aim to address causative factors that lead to youth offending, assist youth in navigating court and justice related processes and increase the number of young people able to access bail. 5. Initiatives of the Department targeted at reducing youth detention rates and increasing community safety include the KJJS, the Aboriginal Legal Service of WA Youth Engagement Program (YEP) programs delivered by the Department’s Youth Justice Teams, the Metropolitan Youth Bail Services and assistance relating to regional bail support. LIBERAL We note the Law Society’s position, which appears to make recommendations that go beyond the Briefing Paper. Nevertheless, we agree that detention for those under 18 years of age should be a measure of last resort. However, not all sentences can ‘prioritise the best interests of the child’: no responsible Government or court can ignore considerations such as danger to others in our community. This also applies to the proposal that youth bail legislation be crafted so that pre-trial detention ‘occur only as a last resort where there is a flight risk or risk to the administration of justice upon release’. Nevertheless, a Liberal Government would continue to seek viable measures to reduce the rate of juvenile detention, Aboriginal or otherwise. We will assess the efficacy of programs, projects and

strategies currently in place, and expand or modify them as appropriate.

Imprisonment of Fine Defaulters The Law Society of Western Australia supports the initiative from the Australian Government to use repayment arrangements through Centrelink benefits for welfare recipients, on the basis that there is a safeguard that fine defaulters are not deprived of a minimum living income, and the garnishing of wages and bank accounts of fine defaulters who choose to default on their fines.

through subsequent injury and often has a considerable estate, again may not wish to benefit one or other members of their immediate family. LABOR The Law Society of Western Australia’s position on Wills for minors is noted. LIBERAL We support a review of the Wills Act 1970 to allow for minors, with the sanction of the Supreme Court, to make wills in certain circumstances.

LABOR The Law Society’s briefing paper acknowledges the Fines, Penalties and Infringement Notices Enforcement Amendment Act 2020 (WA) specifically recognises financial hardship and allows persons suffering hardship a number of alternative ways of repaying or expiating their debts, including greater access to time in pay arrangements, garnishee orders and work development permits. Garnishee orders introduced through the fine default reforms are subject to statutory protected bank account amounts and protected earning amounts. Direct garnishing of Commonwealth benefit payments is a matter for the Commonwealth Government. The WA Government continues to work with the Commonwealth in this regard. LIBERAL We note the Law Society’s position. Imprisonment for failure to satisfy fines should be a last resort. We, too, support the garnisheeing of Commonwealth benefits to satisfy fines.

Wills for Minors The Law Society of Western Australia seeks amendments to the WA Wills Act so as to avoid a situation where: •

A minor who has married and has responsibilities towards a spouse or, potentially a child, can thus reflect their intentions as to the disposal;

•

A situation where an incapable minor child, who has a considerable estate, and has valid reasons for not wishing to consider one or other of their parents or siblings as beneficiaries of their estate if they should die before 18, have the ability to make such a Will; or

•

In the case of a minor who is incapacitated either since birth or

Ademption The Law Society of Western Australia supports: 1. The right of an administrator to obtain a copy of or sight the represented person s will; if it is necessary for them to carry out their functions as an administrator. 2. The similar extension of this right to attorneys under an EPA; and 3. Addressing the question of ademption directly by the insertion of new sections in the Guardian and Administration Act 1990 (WA) modelled on sections 22 and 23 of the Powers of Attorney Act 2003 (NSW) giving certainty and legislative effect to the decision in re Hartigan. LABOR The Western Australia Government supports amendments to clarify that an administrator can obtain a copy of, or sight, the represented person’s will, if it is necessary for them to carry out their role as administrator. This was a recommendation of the Statutory Review of the Guardianship and Administration Act 1990 (WA). Similarly, the Government supports a similar extension to clarify that an attorney under an enduring power of attorney has rights of access to a donor’s will. However, such amendments will need to be accompanied by other reforms to guard against potential exploitation or financial elder abuse. In principle, the Government supports addressing the question of ademption in a manner consistent with that proposed by the LSWA. LIBERAL We support clarification of the law relating 17

to ademption and as to the entitlement of an administrator or attorney to sight a copy of the will of a person they represent.

•

to ensure that innocent people are not pleading guilty (or being advised to plead guilty) in order to avoid the consequences of unfitness; and

Implement Recommendations of Statutory Review of the Guardianship and Administration Act 1990

•

defendants, found unfit to stand trial, who are placed on supervision orders are unable to have their supervision orders revoked because they continue to breach the conditions of the order.

The Law Society supports the immediate introduction of amendments to the Guardianship and Administration Act 1990 to implement the recommendations in the Statutory Review of the Guardianship and Administration Act 1990 of December 2015 as a matter of priority. LABOR The WA Government is committed to implementing all supported recommendations of the 2015 Statutory Review. The recommendations to address the issue of consent to medical research were considered crucial in the current environment and were implemented by the passage of the Guardianship and Administration Amendment (Medical Research) Act 2020. LIBERAL We support the early introduction into Parliament of amendments to the Act, reflecting the recommendations of the statutory review and any subsequent advice as to its improvement.

Mentally Impaired Accused The Law Society of Western Australia recommends; 1. Laws and legal frameworks affecting people involved in court proceedings in Western Australia should be reformed to reflect the National Decision-Making Principles proposed by the Australian Law Reform Commission and to facilitate Australia’s compliance with art 12 of the United Nations Convention on the Rights of Persons with Disability (CRPD).

4. The Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) should be amended to place limits on the period of custody orders for persons detained after being found not mentally fit to stand trial. 5. The period of detention should not exceed the period which a court determines the individual would have been detained if convicted, bearing in mind all the circumstances which the court would have taken into account in sentencing the individual. The Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) should be amended to provide that a custody order must not be made unless the statutory penalty for the alleged offence includes imprisonment or detention. Such an order should not be permitted to run for longer than the alleged offences, if proved, would justify. LABOR Progress continues to be made in drafting a Bill to repeal and replace the Criminal Law (Me tally Impaired Accused) Act 1996 (WA). The Bill is broadly consistent with the LSWA’s recommendations, particularly in relation to providing for fixed term custody orders, supports for persons found unfit to stand trial, and mechanisms to respond appropriately to breaches of conditions of orders. LIBERAL

2. The criteria for unfitness should focus on the defendant’s ability to make rational decisions in order or a person to effectively participate in a trial.

The previous Liberal Government had undertaken significant work to reform the way the justice system dealt with mentally ill accused, including establishing the mental health court diversion and support project, and opening the first Disability Justice Centre.

3. It is important that mechanisms are implemented to ensure that defendants who would otherwise be determined to be unfit to stand trial are provided with adequate supports to be able to stand trial for the following reasons:

A review of the Criminal Law (Mentally Impaired Accused) Act 1996 was completed and tabled in Parliament on 7 April 2016. Although work had commenced to implement the recommendations, the previous Liberal Government was unable to complete the

18 | BRIEF FEBRUARY 2021

task before Parliament was prorogued for the 2017 election. The Review included recommendations as to the criteria for determining unfitness stand trial, alternatives to detention and the provision of proper support to accused. The then Government also investigated the question of limits on detention for an accused found unfit to stand trial. Subject to questions of the safety of the accused or others, placing limits on detention warrants attention. Notwithstanding its commitment before the last election to do so in its first year of office, the current Government has not legislated reforms. A Liberal Government will legislate to amend the Act, as informed by the Report of the Review and any relevant subsequent developments.

Judicial Resources The Law Society of Western Australia seeks the support of all parties to: • •

Maintain existing levels of judicial resources; and Provide additional resources to ensure that the Courts meet national standards in listing times for trials and delivering judgments. LABOR

Between 2007 and 2017, judicial resourcing at the District Court remained largely unchanged. Under the current government, two additional judges were appointed in January 2018 to address the increasing criminal workload and expedite processing of sentencing matters. Two additional District Court judges and support staff were approved to be appointed from 1 July 2020. In August 2020, two additional magistrates were appointed to the Magistrates Court to deal with all criminal matters across the State. LIBERAL We acknowledge the Law Society’s concerns about judicial resources. A Liberal Government will not reduce the resources currently available. On the contrary, it will endeavour to ensure that the system is adequately resourced within available means, and work to improve efficiencies within the system. We note the observations in the Briefing Paper as to time to trial in criminal matters. In 2007-2008, under the last Labor Government, the median time to trial for criminal matters in the Supreme Court was 38 weeks. Under the Barnett

Government it was reduced to 35 weeks in 2008-2009 and that Government set an aspirational target of 28 weeks. That target was achieved, but the median began to rise and reached 33 weeks in the 2016-2017 budget year. Since the current Government took office the performance of the superior Courts has deteriorated markedly. At the end of 2016, the Supreme Court had 22 full time judges. The Supreme Court now has 21 judges, but the median for 20182019 was 39 weeks and increased to 45 in 2019-2020. This is notwithstanding significant changes to court jurisdictions over this term of government. The District Court’s median target was set at 32 weeks. Its actual median remained significantly under that target until the 2015-2016 budget year. Since this Government took office the actual median has reached 45 weeks. At the end of 2016 it had 28 judges. It now has 34 judges. In September 2017, this Government announced a ‘Justice Pipeline’ planning model, to come into effect mid-2018, ‘to assist with policy development and addressing entrenched justicerelated issues in Western Australia’. The Government claimed it would ‘estimate the downstream impact of policy initiatives and future trends and demands on the justice system’ and ‘identify how changes in one part of the system can have a significant impact on the other parts of the system’ to enable the development of ‘well-informed and appropriate justice-related policies and decisions’. It has not improved the efficiency or effectiveness of our justice system. The erosion of our courts’ ability to reach their targets needs to be investigated and addressed.

Family Violence The Law Society of Western Australia calls for: 1. The State Government to provide long term, sustainable and predictable funding for Legal Services in all areas of law related to Family and Domestic Violence (FDV) 2. Funding for Courts dealing with family law matters, as well as family violence support services. 3. Comprehensive, ongoing, and mandatory family and domestic violence training for judicial and court staff situated in courts exercising jurisdiction in FDV related matters. 4. Continue to develop and implement domestic violence strategies including community education

for particularly vulnerable groups, including Indigenous Australians and those from CALD communities. LABOR The Western Australian Government introduced the most comprehensive family violence law reform package ever seen in Western Australia, with the passage of the Family Violence Legislation Reform Bill 2019 through Parliament on 25 June 2020. The reforms amended nine separate pieces of legislation across six separate Ministerial portfolios and put Western Australia at the forefront of the fight against family and domestic violence. 1. The Government is committed to ensuring that courts, particularly those that deal with family law or family and domestic violence (FDV) matters, are appropriately funded and resourced. As part of the Department's Court and Tribunal Services responsibility to ensure service delivery is appropriate for each individual, due consideration of social justice issues and the provision of service delivery based on the individual's circumstances including their culture, is provided. In relation to funding courts dealing with family law matters, the Family Court of WA is funded by a Commonwealth grant. The Commonwealth has a number of family violence legislative amendments and projects currently in progress, of which the Department is a key stakeholder. 2. In relation to family violence support services, this has been subject to a Parliament of Western Australia Standing Committee and resulted in the recently published ‘Opening Doors to Justice’ report. The Government will formally respond to the report recommendations in due course. 3. Not addressed. 4. The WA Government remains committed to reducing the incidence and prevalence of FDV. In July 2020, the Department of Communities released a FDV Strategy and Action Plan. The Action Plan contains a number of relevant recommended actions that address the LSWA's concerns including, co-designing the Aboriginal Family Safety Strategy with Aboriginal people and communities, the need to develop and deliver cultural competency

training for FDV service providers and multicultural organisations, development of culturally appropriate programs to improve the safety and wellbeing of Aboriginal women and their children experiencing FDV, supporting the development of FDV prevention strategies and raising awareness about referral pathways for CALD and refugee communities and the development of both a Department of Justice FDV Strategy and Aboriginal Family Safety Strategy. The Department's Aboriginal Family Safety Strategy is currently in the preconsultation phase of development. The intent of the strategy is to work with Aboriginal people to find practical solutions that will strengthen family units and community safety. Extensive community engagement is planned this year. LIBERAL The Liberal Party is committed to continuing the work it began when last in Government to address the problem of family violence. We support the need for a predictable and guaranteed source and stream of funding to legal services assisting victims of family violence. We also acknowledge the need for those ethnic communities affected by violence to be involved in, and collaborate with, the organisations providing services to them.

Closing the Gap The Law Society of Western Australia seeks the support of all parties to: 1. consider the new targets, including justice targets, under the National Agreement on Closing the Gap, to ensure the targets work towards reducing rates of Indigenous imprisonment and violent offending; 2. establish a national agency to collect and evaluate comprehensive data on corrections, law enforcement, juvenile justice and diversionary measures, to inform government policies around crime and imprisonment; and 3. abolish mandatory sentencing laws. LABOR 1. Western Australia is a party to the July 2020 National Agreement on Closing the Gap. Under Outcomes 10 and 11, the Agreement commits the State to targets for reducing Aboriginal incarceration rates by 15% for adults and 30% for youth 19

by 2031. The Western Australian Government is committed to working with Aboriginal and Torres Strait Islander communities to work toward making progress against the ambitious targets set in Closing the Gap. 2. With respect to national data collection and evaluation, the Commonwealth already funds the Australian Institute of Criminology (AIC), a national research and knowledge centre on crime and justice. The AIC hosts the Criminology Research Advisory Council, which advises the Director of the AIC on strategic research priorities, communications and the effective dissemination of crime and criminal justice information. It also provides recommendations on grants under the Criminology Research Grants program. The Director General of the WA Department of Justice is the Attorney General’s nominated representative on this Council and is currently the Chair. 3. Mandatory sentencing legislation in WA is restricted to a small number of offences. The Western Australian Government has maintained a commitment to reduce unnecessary incarceration. The Government’s legislative reform agenda in this regard includes: •

•

The Fines, Penalties, and Infringement Notices Enforcement Amendment Act 2020 (WA) which commenced on 19 June 2020 and provides that only a Magistrate can issue a warrant of commitment in significantly restricted circumstances. Persons suffering hardship will have recourse to alternative ways of repaying or expiating their debts through consensual work and developments permits. There will also be greater flexibility in regard to time to pay arrangements and easier access to work and development orders to work off fines. The complex matter of drafting a new Bill to replace the Criminal Law (Mentally Impaired (Accused) Act 1996 (WA), which is continuing. It is proposed that the Bill will: ◊

ensure that when custody orders are made, limitation periods are set with reference to the likely term the person would have

20 | BRIEF FEBRUARY 2021

received had they been convicted of the offence; ◊

provide options for community orders; and

◊

increase access to advocacy services.

The Department of Justice is also introducing measures to monitor the impact of mandatory sentencing in Western Australia. LIBERAL We note the Law Society’s policy position and shall consider the new targets. As already mentioned, and as when previously in Government, we are committed to reducing rates of imprisonment and violent offending generally, accepting that a particular focus should be on Aboriginal offending. We support any expansion and improvement of justice-related data collection, evaluation and use, although our primary responsibility as a State Government would be to establish, refine, and seek to perfect those relevant to our State’s population and problems, and hopefully in doing so set the standard for any national agency. The current Government, when in Opposition before the last election, promised to ‘establish a Bureau of Crime Statistics and Research to provide independent, evidence based research on crime and justice’. It also promised to ‘create a sentencing database in WA that will provide comprehensive data of all sentences imposed across the Supreme, District, Magistrates and Children’s Court jurisdictions’. It has failed to do so. We shall investigate the reasons for that failure and implement these projects to the extent that they will improve on data-gathering mechanisms already available or in development.

Complaints Against Judiciary The Law Society of Western Australia calls for all parties to: a. Establish Formal Complaints System b. Establish Judicial Commission c. Standing to Make Complaints d. Grounds for Removal from Office e. Powers of Parliament LABOR The Law Society of Western Australia’s position is noted. A re-elected McGowan Government will work with the Law Society to address this issue. LIBERAL We consider it timely to implement the Law Reform Commission’s proposal for a judicial commission to receive, investigate and deal with complaints against judicial officers. The detail of the bases for making complaints, and the commission’s operation and funding, would need to be determined in consultation with the profession and the judiciary, as would mechanisms to ensure that judicial independence is not compromised and the pressures of judicial office are not exacerbated by vexatious and frivolous complaints. In the event of a Liberal-led Government after the next election, the Liberal Party would welcome working with the Law Society in the development of strategies for the improvement of the administration of justice in Western Australia.

Prorogation by Thomas Moorhead Lawyer Policy and Advocacy, The Law Society of Western Australia

On 7 December 2020, His Excellency the Governor prorogued the two Houses of the Parliament of Western Australia. Prorogation ends a session of Parliament and terminates all business listed on the notice papers of both Houses including matters referred by the Houses to committees.1 This means that all legislation that had not been passed by the WA Parliament, such as the Uniform Law application bills or the Administration Amendment Bill 2018, are wiped off the notice paper and must be reintroduced in the next session of Parliament. Prorogation is usually followed by a period of recess prior to either the opening of a new session or the dissolution of the Assembly before a general election. Parliamentary business cannot be conducted after a prorogation and before the Parliament is recalled. As stated by Erskine May, “the prorogation of Parliament is a prerogative act of the Crown. Just as Parliament can commence its deliberations only at the time appointed by the Queen, so it cannot continue them any longer than she pleases”.2 The term prorogation comes from the Latin prorogatio which referred to the extension of a Roman praetor’s imperium beyond their fixed term.3 In Western Australia, the power to prorogue is found in the Western Australian Constitution,4 in language similar to that in s.5 of the Constitution of the Commonwealth of Australia. Generally, Parliaments consist of only one session, which runs from one election until the next, where the parliament is prorogued prior to being dissolved, however this has not always been the case.5 Parliaments do not have to be prorogued before they can be dissolved, and prorogation can be used in circumstances completely unrelated to elections.

History of Prorogation What appears on the surface as a straightforward matter of parliamentary procedure has a history steeped in blood and intrigue.

Monsieur Francis, Duke of Anjou and Alençon (French: Hercule François; 18 March 1555 – 10 June 1584)

In England, parliaments were regularly prorogued due to community transmission of the plague in London. In 1467 Edward I prorogued Parliament, as “ [the] plague was beginning to hold sway to such an extent that some luminaries of the commons house had caught that plague and died, to the manifest danger of the lord king himself and of the lords and commons who should be present in the said parliament”6 In 1578, Queen Elizabeth I of England prorogued the parliament to avoid debate regarding a potential French suitor, her ‘frog’, the pockmarked and scoliotic Duke of Anjou, 23 years her junior.7 In 1605, parliament was adjourned and then prorogued upon discovery of the now infamous gunpowder plot to blow it up.8 The most notorious prorogation belongs to Charles I who being short of cash in 1628, prorogued parliament following a disagreement about whether the King could raise customs without the consent of the parliament. The parliament remained prorogued for 11 years, resulting in no shortage of acrimony between the Crown and the parliamentarians, and ultimately the beheading of Charles in front of an angry mob at Banqueting House, and the English Civil War.9

Prorogation in the Commonwealth and WA The Commonwealth Parliament was regularly prorogued prior to 1961, however since then it has been prorogued without an accompanying dissolution (i.e., not related to an election) on only four occasions. Two of these, in 1974 and 1977, were for the purpose of allowing openings of parliament by the Queen during visits to Australia. On another occasion, in February 1968, Parliament was prorogued following the mysterious oceanic disappearance of Prime Minister Harold Holt.10 The Parliament does not have to be prorogued prior to dissolution and a general election, and in fact between 1928 and 1990, Federal Parliaments were dissolved without any express prorogation.11

The practice of proroguing immediately prior to dissolution seems to stem from practice in the United Kingdom and may be designed to prevent the Upper House from meeting on its own initiative.12

Annual prorogation? s.4 of the WA Constitution13 provides that: “there shall be a session of the Legislative Council and Legislative Assembly once at least in every year, so that a period of twelve months shall not intervene between the last sitting of the said Council and Assembly in one session and the first sitting of the said Council and Assembly in the next session”. There are differing interpretations of this provision. Some states are ‘strict constructionists’ and prorogue parliament every year to ensure there is a session every year.14 Other states (and the Commonwealth) are ‘non-observant’ and consider that the section is concerned “with a less-than-twelvemonths-interruption rather than with a onceat-least-every-year session”.15 In 2003, the Western Australian Parliament formally departed from the ‘strict constructionist’ view to the ‘non-observant’.16 This had the obvious benefit of Members not having to re-introduce lapsed legislation every year, and not disrupting the work of Parliamentary Committees.17 However, this does not prevent the Governor from proroguing parliament on the advice of the Executive Government, and prorogation can and has been used as a tactic to be employed by Governments in or against a hostile house.18

Notable Contemporary prorogations The 1991 Carmen Lawrence Prorogation19 In 1991 the first female Premier in Australia, Carmen Lawrence, was in the throes of managing the ‘WA Inc’ scandal of her predecessor Brian Burke.20 A Royal Commission into the matter was called by the Premier,21 however the WA Legislative Council, in which the Labor Government held a minority, had also established not

Endnotes 1 2 3

4 5 6

one but two select Committees conducting investigations into ‘WA Inc’. On January 3, 1991, Parliament was prorogued, in a move widely interpreted as a tactic to prevent the Legislative Council Committees from continuing their work during the recess.22

departure from the European Union on 31 October 2019, the move was seen by many as an unconstitutional attempt by the prime minister to avoid parliamentary scrutiny of the Government’s Brexit plans in the final weeks leading up to Brexit.27

The 2008 Canada Prorogation

The matter was so contentious that it was litigated three times,28 ultimately in the Supreme Court of the United Kingdom.29

In 2008, the then Prime Minister of Canada Stephen Harper asked the Canadian Governor General to prorogue Parliament in order to avoid a no confidence motion (based on a controversial budget) which his minority Government was set to lose. After a 2.5 hour discussion the Governor General agreed to the prorogation and the no confidence motion (plus everything else before the Parliament) was quashed. It was the first time in Canadian History that this had occurred.23 The 2010 NSW Prorogation In 2010, the then premier of NSW prorogued the parliament to shut down a Committee inquiry into the sale of state electricity assets. The Government subsequently lost the next election, and the new Government enacted a law amending the State Constitution to only permit prorogation before a fixed term general election, from Australia Day.24 The 2016 Turnbull Prorogation In 2016, the Turnbull Government prorogued the 44th Parliament in order to recall both houses to pass legislation to reinstate the Australian Building and Construction Commission which had been blocked in the Senate. This was the first-time prorogation had been used to circumvent a hostile senate since 1914.25 In the event the legislation still wasn’t passed, triggering a double dissolution election.26 The 2019 Brexit Prorogation On 28 August 2019, the Parliament of the United Kingdom was ordered to be prorogued by Queen Elizabeth II upon the advice of the prime minister, Boris Johnson. Since Parliament was to be prorogued for five weeks and reconvene just 17 days before the United Kingdom’s scheduled

22 | BRIEF FEBRUARY 2021

The Supreme Court found that the matter was justiciable, citing the 1610 Case of Proclamations,30 and that a prorogation is unlawful “if it has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature”.31 In this case the Court found that the prorogation had that effect given it prevented parliamentary scrutiny of the ‘fundamental change’ occasioned by Brexit.

Conclusion Although most commonly known as a routine parliamentary procedure in the lead up to an election, prorogation can be used in novel circumstances for political purposes, raising serious questions regarding parliamentary sovereignty and responsible government. It can be used so due to the inconsistent uses of prorogation in Westminster Parliaments and the historical precedents available. Perhaps the West Australian put it best when it stated in regards to prorogation, “all this may be perfectly constitutional but it is a chilling thought that the executive should be able to bend the constitutional rules for party advantage”.32 It is anyone’s guess when the next prorogation controversy will crop up, and how it may be dealt with, especially in light of the United Kingdom Supreme Court decision. It could be that a Governor may refuse to prorogue a Parliament, which if it occurred could provoke a constitutionally fascinating turn of events. I hope this article has provided some colour to an otherwise mundane or illusive piece of parliamentary terminology.

9 10 11 12 13 14 15 16

19 20 21

23 24 25 26 27 28

29 30 31 32

Proclamation proroguing Legislative Council and Legislative Assembly 2020. WA Government Gazette, 7 December 2020 Erskine May, Parliamentary Practice 24th edn, p. 145 Not just praetors, consuls, and magistrates as well. The practice was used increasingly in the provinces as the Roman Empire expanded and there was a dearth of elected officials to relieve those in command. From these pragmatic origins the practice became politized and through legalizing the retention of power in individuals, contributed to the decline and fall of the Roman Republic. Constitution Act 1889 (WA) s.3 Only since 1990 has this been common practice in the Federal Parliament. https://thehistoryofparliament.wordpress. com/2020/07/09/plague-prorogations-and-thesuspension-of-the-courts-in-fifteenth-century-england/ He wasn’t in that much danger, as at the time he was at the other end of the country waging war on the Lancastrians. This pet name is possibly the origin of the pejorative labeling of the French as ‘frogs’. Although the Queen had affection for him, public sentiment was so adverse she broke off the proposed marriage in 1581. https:// www.nationalarchives.gov.uk/education/resources/ elizabeth-monarchy/elizabeth-i-to-the-duke-ofalencon/ https://www.historyofparliamentonline.org/ volume/1604-1629/survey/parliament-16041610#footnote6_dqcn65n https://royalcentral.co.uk/interests/history/whencharles-i-prorogued-parliament-129797 https://www.aph.gov.au/About_Parliament/ Parliamentary_Departments/Parliamentary_Library/ FlagPost/2016/March/Proroguing_Parliament https://www.aph.gov.au/About_Parliament/House_ of_Representatives/Powers_practice_and_procedure/ Practice7/HTML/Chapter7/A_Session Ibid. There is an analogous provision in s.6 Australian Constitution. The Westminster Parliament is also generally prorogued every year. Commentary on the Australian Constitution (Lane), 1986, p 23. PROCEDURE AND PRIVILEGES COMMITTEE CHANGES TO PROROGATION AND EXTENDED SESSIONS Report No. 4 2003 https://www.parliament. wa.gov.au/Parliament/commit.nsf/(Report+Lookup+by +Com+ID)/024D0345DACEB23548257831003E95DE/$f ile/Changestoprorogationandextendedsession.pdf The effect of prorogation on Committees has been a point of discussion and debate amongst learned Parliamentary Clerks and beyond the scope of this paper. One opinion is that Committees of the Legislative Council may continue to meet based on the principle of ‘reasonable necessity’ espoused in Egan v Willis [1998] HCA 71. The Canadian prime minister prorogued the Canadian Parliament in 2008 to delay a vote of no confidence in the Government: http://news.bbc.co.uk/2/hi/ americas/7765206.stm Gerard W Horgan Prorogation as a tool of the Executive in intercameral conflict https://www.aspg.org.au/wpcontent/uploads/2017/08/Prorogation-1.pdf Mark Skulley The sinking of WA Inc. 03 December 2008 https://www.eurekastreet.com.au/article/the-sinkingof-wa-inc More information in Bruce Stone ‘Accountability Reform in Australia: The WA Inc Royal Commission in Context’ The Australian Quarterly Vol. 65, No. 2, Accountability: Who Is and Who Should Be (Winter, 1993) Gerard W Horgan Prorogation as Partisan Political Tool: The Western Australia Experience https://www. academia.edu/4721026/Prorogation_as_Partisan_ Political_Tool_The_Western_Australia_Experence https://www.lexology.com/library/detail. aspx?g=44934703-b6ed-4876-9ec0-6fd1b6e5a708 Constitution Amendment (Prorogation of Parliament) Bill 2011 (NSW) Then Prime Minister Joseph Cook prorogued the Parliament in 1914 to bring about a double dissolution election, which he then lost. The Turnbull Government won the election and had the numbers to pass the legislation in the next Parliament. https://www.theguardian.com/politics/2019/aug/28/ what-is-prorogation-prorogue-parliament-borisjohnson-brexit Once in England at the High Court of Justice: [2019] EWHC 2381 (QB), Once in Scotland at the Scottish Court of Sessions [2019] CSIH 49 and Finally on Appeal at the United Kingdom Supreme Court R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41 Case of Proclamations [1610] EWHC KB See 28 above, at para 50. “Executive Rule,” West Australian, 12 October 1971, 6

Interview with Judge Barone Judge Barone

Mara Barone SC was admitted to practice in Western Australia in 2001. She commenced practice at the Legal Aid Commission of Western Australia and, following eight years at the Aboriginal Legal Service of Western Australia, commenced her own firm in 2011. Her Honour practised at the Independent Bar from May 2018 until her appointment as a judge of the District Court in May 2020. Judge Barone has been a valued member of the Law Society since 2009 and has made a significant contribution to the Society’s CPD programme for online learning. In this interview with the YLC, Judge Barone provides insights into her distinguished career and offers valuable advice to new lawyers.

Where did you start out as a new lawyer, and what was your work life like when you first began your legal career? Barone J: I completed my articles and then my first couple of years as a lawyer at Legal Aid WA. I then moved to the Aboriginal Legal Service (ALS) in the Criminal Unit. In respect of work life, the experience of being a duty lawyer definitely stands out. As a duty lawyer you have to think quickly and be able to deal with a range of matters. Literally any type of matter could walk through the door. It was challenging, but it helped me to learn the law. As a duty lawyer you are required to adapt, take instructions quickly, give advice succinctly and think on your feet, all while trying to get the Court to know and respect you. Many of my career long friendships were forged with other duty lawyers as we banded together. I remember those days with fondness. In my view, being a duty lawyer is the best training for a career as a good criminal lawyer.

How did you expect your career to go as a new lawyer, and how right or wrong were you? Barone J: I don’t remember actually thinking too much about where the rest of my career was headed when I was a new lawyer. I focused on one day at a time. I was more nervous about getting the ‘being a lawyer’ bit right, or as right as I could get it. I wanted to do a good job for the people I was representing. I definitely did not envisage becoming a Judge. At some point I started to think about applying for silk, but that came much later on. Neither of those things were on my radar at the start. I was more interested in the challenge of advocacy, getting better at conducting trials, and enjoying what I was doing whilst helping people.

the Criminal Unit were well intentioned and pitched in to get the job done. It was also an overwhelmingly supportive environment. Everyone shared their knowledge and experience without hesitation. I always felt like part of a team and the lawyers all looked out for each other. There was a comradery, energy and spirit about the Aboriginal Legal Service that was bigger than its parts. Finding your voice is always a big challenge as a junior lawyer. Even if you are someone who is loud and opinionated, it is still hard to find your voice in Court. To be comfortable hearing yourself speak in a room full of others and have a commanding presence isn’t easy. You just have to find your own style and be your own advocate.

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

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

Barone J: The biggest highlight for me as a junior lawyer was working at the ALS with an incredible group of talented criminal lawyers. All of the lawyers in

Barone J: Don’t be in such a rush. When you’re a new lawyer it is very easy to get swept up in ticking off achievements. But to quote Ferris Bueller: ‘life moves pretty 23

fast. If you don’t stop and look around once in a while, you could miss it’.

What was the major issue facing the profession when you were a new lawyer, and did we fix it? Barone J: Finding employment was the biggest stress for graduates when I was a new lawyer. 20 years ago we were worried that there were too many graduates for too few employment opportunities. Sadly things don’t appear to have changed for the better in 20 years. When I had my own firm and was employing lawyers, I always looked to hire people who seemed like interesting people with varied life experience. So focussing on more than just the law is important.

How has the focus on wellbeing changed since you were a new lawyer, and what advice do you have for managing the pressures of working as a lawyer? Barone J: As a junior lawyer at the Aboriginal Legal Service the work could be very challenging and emotionally draining. The ALS knew long before there ever was a ‘wellness’ buzzword that you cannot simply keep working without letting off steam and enjoying life by hanging out with friends and colleagues, often over lunch and a bottle of wine. I was fortunate that the ALS recognised that happy people make for better lawyers. Take holidays is my advice. As I got busier and busier, it got harder and harder

24 | BRIEF FEBRUARY 2021

to make it happen, but that alone was always a good indication that I needed a holiday. You need to be able to have a break and decompress.

What advice would you give to new lawyers appearing before you? Barone J: Be prepared. Everyone stresses the need for preparation because obviously it is important to be across all of the material and the issues to do your job effectively. But being prepared is important because it shows the Court that you actually care about your own integrity as a lawyer. Being prepared indicates that you take your responsibility seriously and that you value what it takes to be a well-respected lawyer – that is what is impressive about a well prepared lawyer.

What initiatives have you been a part of that were directed at new lawyers? Barone J: In 2015 Lisa Boston and I were talking to each other about the way that female criminal lawyers could better support each other. So together we created the Women in Crime Business Group. We registered it as a reading group with the Legal Practice Board. It is a group solely for women practising criminal law in the private profession who therefore don’t have the support offered by employers such as Legal Aid, the ALS or the DPP. The group is open to all female criminal lawyers including senior and junior practitioners. The group meets once a month for CPD (presented by judges, experts or lawyers) and holds an annual conference (usually down south).

Meetings provide a chance to touch base with everyone and for junior lawyers to get to know more senior lawyers and seek their support and advice. Lisa and I hoped it would be a way to support other woman and make sure that no one was alone in navigating a demanding profession. It should never be beyond someone more senior to check up on others. I had the benefit of that as a junior lawyer, so paying it forward was always really important to me.

What are the key tips you would give to new lawyers who are just starting out? Barone J: Don’t stress too much, it does get easier. But remember, if it feels too easy then it’s probably a sign that you’re not invested in doing a good job anymore and you need to re-evaluate. Also, get to know people. Don’t be afraid to get to know lawyers from a broad cross-section of practice areas and firms. Knowing people doesn’t just open doors and create opportunities, it also means you’re exposed to different perspectives and are constantly challenged. One of my earliest managers told me ‘you catch more flies with honey than vinegar, the same is true in law’. He was undoubtedly correct.

Legally Mine! by Brenda van Rensburg Head of Data Security, Terrene Global Privacy Officer/Analyst for HBF This article is adapted from a paper presented at a Law Society of Western Australia CPD seminar on 11 November 2020. It will be presented again on 10 February 2021.

A digital footprint is the trail of data you leave behind with every interaction you have with the digital world.1 From the latest website you visited to the last app you downloaded; your data is important to someone or some entity. Ignorant arguments have been raised which suggests that there is nothing to hide. However, very little attention is given to why this data is being collected. There is a misconception that if you cannot see it then it cannot be real. However, Cambridge Analytica2 has revealed that your digital footprint, your digital data, is more valuable than sensitive information as defined in the Privacy Act.3 The collection, storage and sharing of your data is legal and no consent is needed. Australia’s legislation is limited and unlike the General Data Protection Regulations (GDPR), it does not protect individuals from the collection of this data. Ironically, there is also no legal recourse for an individual who has been a victim to an information data breach.4 Additionally, a person’s reputation and company could experience significant brand damage as a result of

the collection of this data. Without regulations, data is ‘legally mine.’ This article will discuss the collection, storage and sharing of information/data and the steps a business should take to reduce brand damage.

Data v Information There is a significant difference between data and information. The latter is defined in the Privacy Act and is focused on the collection of Personal Identifiable Information which is legible.5 It is, for all intended purposes, the legible text which is collected, stored, and shared. The former, however, is a collection of data which requires normalisation in order to

understand it.6 It is the ‘basic element that can be processed or produced by a computer to convey information.’7 Arguably, without an algorithm, or a specific skillset, the average person would not understand it. The Privacy Act highlights factors which include information and sensitive information that can identify a person.8 Little attention is given to the term ‘data’. Arguably, data is the binary information with no substantial value. Therefore, a person using a tool such as ‘Wireshark’ would legally ‘eavesdrop’ on digital conversation and gather data without a person’s consent.9 Ironically, data is not recognised within the Privacy Act and thus this method is not considered as malicious.

Collection of Data Wireshark is a tool that is used to gather data from any device that uses the same network. To the average person, it lists ‘captured’ data/packets which would have no meaning or value. However, to a trained professional, this data could reveal 25

some potentially harmful information. For example, it could show the source of who sent the data; the destination of where the data is going; the protocol used; how big each packet is; and an option to investigate more information depending on the type of packet.10 In other words, there is enough data to create a profile for the next target. On the flip side, however, there are many businesses that knowingly collect data. In the case of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, Cleeson J recognised that businesses often use information for the purpose of income.11 Sales, after all, are the life blood of a business, and the best way to increase sales is by truly knowing your customer. This can be achieved through a strategic marketing campaign.12 Ironically, cybercriminals are using similar tactics to gather information about their customers.13 Target’s statistician, Andrew Pole, found out that they could learn a great deal about their customers just from their purchases. Every time a customer used their ‘loyalty card’ a significant amount of data would be collected. After analysing the data, Target was able to determine who was pregnant just from the products they purchased. Notably, many may feel that this type of information would not be invasive. However, the father of a teenage daughter would disagree.14 Target's revenue grew by over $20 billion just by cornering the ‘baby business.’15 Oddly, cybercriminals are applying similar tactics in the form of phishing emails.16 26 | BRIEF FEBRUARY 2021

Limitation in Legislation It could be argued that the Australian Privacy Act is more of a guideline to how businesses should collect, store, and share information. The Act focuses on businesses that fall within the definitions of the Australian Privacy Principles (APP). Any business, which does not have a turnover of $3 million or more, does not have to follow this legal instrument.17 Unlike European Union’s GDPR, the Privacy Act could be argued as a toothless tiger. There is yet to be a penalty imposed on a business for a data breach.18 In July 2020, highly sensitive information was compromised in one of WA’s biggest privacy breaches.19 This breach was associated with the use of a 3rd party pager server. According to the Privacy Act a business could face up to 2000 penalty points depending on the infringement.20 However, since the amendments in 2018, there are no records of any penalties or fines imposed on any business. The GDPR, however, takes a data breach extremely seriously. They actively fine companies for breaching the regulations. In the Tietosuojavaltuutettu case, the courts found that Jehovah Witnesses had breached the GDPR because they collected information about individuals during door-to-door preaching.21 This measure would be completely ignored under the current Australian legal system. The gaping hole within legislation, together with the lack of definitions for technical terms, leaves Australians and Australian businesses vulnerable

to privacy breaches. Due to these limitations, data can be shared with many entities without consent. Thus, any person can collect, store, and share data legally.

Data Breach & the Legal Impact Notably, the lack of legislation is not the only ‘hole in the legislative wall’. A data breach could impact a business’ brand and possibly lead to a class action lawsuit. In November 2018, the Marriot International Inc. faced a significant data breach.22 Customers information was kept in plain text format. In other words, sensitive information such as credit card and passports were not encrypted.23 Cybercriminals accessed the system through a trojan. Trojans require user interaction before it can be installed into a system.24 This can easily be achieved if enough information is gathered about a target and they are lured to react to an attack like a phishing email. Marriot International Inc experienced a 16% drop in the stock market within 3 months after the breach occurred.25 Unfortunately, this was not the only thing they lost. Apart from the obvious cost in repairing the damage, Marriott International Inc recently faced a class action lawsuit.26 In unprecedented COVID-19 times, where Marriott International Inc. saw stock prices plummet by over 59%, a class action law suit could quite easily close doors to several of Marriott’s struggling venues.

Protecting Your Brand Public Wi-Fi is probably one of the most notorious areas for gathering data. Lawyers, and other professionals, who are obligated to protect sensitive information could be exposed to ethical violations and ‘malpractice liability’.27 Data gathered through this type of medium could impact a firm’s brand and ultimately a lawyer’s career. It should be policy that lawyers should not be using their work computers/ devices on any public Wi-Fi. Here are some tips one can adopt when traveling or working out of the office: •

Use your personal hotspot or a portable ‘wireless modem’

•

Ensure each device password protected with the potential of being erased if the device is stolen or lost.

•

Ensure you delete networks you may have used through your computer settings.

Lawyers, and professional, should be vigilant about the information they collect; how they store it and how they share it. According to ECU and the Law Society, 94% of lawyers send confidential data via email. Fifty three percent send confidential data to non-business accounts.28 According to the Legal Professions Rules 2010 (WA), lawyers have a responsibility to keep their client information confidential.29 Here are some simple measures you can take when collecting, sharing, and storing sensitive information: •

Ensure your data is encrypted and backed up.

•

Do not send word processing formatted documents as this may reveal changes and comments found within the document.

• • •

Encrypt all documents before sending them. Do not send the encryption key/ password within the same email. Make sure that all your data is stored in a local and secure locations. Your IT team, or IT Service Provider, should be able to assist in this matter.

Conclusion Data can be retrieved easily through several malicious methods. Ironically, cybercriminals use similar methods, that businesses use, to collect data. This makes it increasingly difficult for businesses, and individuals, to recognise the differences between those with genuine intent and those with malicious

intent. There should be a vested interest to ensure the term ‘data’ is incorporated into legislation. This, in turn, could help courts interpret the difference between data and information. Ironically, data has been proven to be more damaging than information itself. Data is, understandably, needed both legally and business-wise. However, with the increase of data breaches, customers are becoming frustrated with the lacklustre approach to protecting their privacy. A class action lawsuit would most definitely impact the future of a business and, indirectly, the economy. Professional businesses that owe an obligation to keep their client’s information confidential owe a duty of care to ensure that this data is secured and protected. These businesses should go beyond reasonable care to protect data and sensitive information. There should be a company policy on how data is collected, stored, and shared especially in areas that place a business, and an individual’s privacy, at risk. Bibliogrpahy Articles/Books/Reports Allen, Jeffrey, Techno-ethics and the Practice of Law (2011) 24 American Journal of Family Law 4 Dumeresque, David, ‘The Corporate Digital Footprint: Exactly Who Owns and Controls It? The Emergence of the Digital Director.’ (2013) 29 Strategic Direction 7 Hadnagy, Christopher, et al, ‘Phishing Dark Waters: The Offensive and Defensive Sides of Malicious E-mails (2015 John Wiley & Sons, Incorporated)

Hill, Kashmir, How Target Figured Out A Teen Girl Was Pregnant Before her Father Did Forbes (London, 2012) Market Watch (Web Page) < https://www.marketwatch.com/ investing/stock/mar> Moses, The Hack of Marriott hotels Exposed 5 Million Passports in Plain Text, Invest in Cyber (Web Page, 2019), <http://invest-in-cyber.com/the-hack-of-marriott-hotelsexposed-5-million-passports-in-plain-text/> Insurance Specialists, List of Data Breaches in Australia and Overseas (Web Page, 2020) < https://www. insurancespecialists.com.au/data-breach-list/> O’Flaherty, Kate ‘Marriott CEO Reveals new Details about mega Breach’ Forbes (Web Page, 2019) < https://www. forbes.com/sites/kateoflahertyuk/2019/03/11/marriott-ceoreveals-new-details-about-mega-breach/#39e8ae07155c> Peters, Jeff, How to Use Wireshark, (Web page, 2020) < https://www.varonis.com/blog/how-to-use-wireshark/> Scroxton, Alex, Marriott Slapped with Class Action Lawsuit over 2018 Breach, Computer Weekly (Web Page, 2018) < https://www.computerweekly.com/news/252487841/Marriottslapped-with-class-action-lawsuit-over-2018-breach>

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

13 14

Kohl, Uta and Andrew Charlesworth, Information Technology Law (Taylor and Francis, 4th ed. 2013)

15 16

Sanaei, Mohamad Reza and Farzad Movahedi Sobhani, Information Technology and E-Business marketing Strategy (2018) 19 Information Technology and Management

17 18

Schmitt, Michael, Tallinn Manual on the International Law Applicable to Cyber Warfare (Cambridge University Press, 2013)

Shneble, Christopher, et al., The Cambridge Analytica Affair and Internet Mediated Research (2018) 19 EMBO Reports 8 Ramalho-Santos, Joao, ‘Data’ (2008) 555 Nature 7696 Rountree, Derrick, Security for Microsoft Windows System Administrators (Syngress, 2010) Tanner, Nadean ‘Wireshark, Cybersecurity Blue Team Toolkit’ (John Wiley & Sons, 2019)

20 21 22

Cases Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63. Giller v Procopets [2008] VSCA 236

Proceedings against Tietosuojavaltuutettu(Jehovantodistajat– Uskonnollinenyhdyskunta,Intervening) [2019]1 C.M.L.R.5 Legislation Legal Professions Rule 2010 (WA) Privacy Act 1988 (Cth)

24 25 26

Other ECU, Client Data Potentially at Risk Due to Lawyer’s Lack of Cybersecurity, ECU (Web Page, 2018) < https://www.ecu. edu.au/news/latest-news/2018/05/client-data-potentially-atrisk-due-to-lawyers-lack-of-cybersecurity> Haywood, Kelly, and Gary Adshead, ‘Unforgivable’: The Privacy Breach that Exposed Sensitive Details of WA’s Virus Fight, The Age (Web Page, 2020) < https://www.theage. com.au/national/western-australia/unforgivable-the-privacybreach-that-exposed-sensitive-details-of-wa-s-virus-fight20200720-p55dsm.html>

27 28

David Dumeresque, ‘The Corporate Digital Footprint: Exactly Who Owns and Controls It? The Emergence of the Digital Director.’(2013) 29 Strategic Direction 7. Christophe Oliver Shneble, et al., The Cambridge Analytica Affair and Internet Mediated Research (2018) 19 EMBO Reports 8. Privacy Act 1988 (Cth). Giller v Procopets [2008] VSCA 236. Privacy Act 1988 (Cth) s 6. Joao Ramalho-Santos, Data (2008) 555 Nature 7696. Michael Schmitt, Tallinn Manual on the International Law Applicable to Cyber Warfare (Cambridge University Press, 2013). Privacy Act 1988 (Cth). Nadean H. Tanner, ‘Wireshark, Cybersecurity Blue Team Toolkit’ (John Wiley & Sons, 2019) Jeff Peters, How to Use Wireshark, (2020 Web Page) < https://www.varonis.com/blog/how-to-usewireshark/>. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63. Mohamad Reza Sanaei and Farzad Movahedi Sobhani, Information Technology and E-Business marketing Strategy (2018) 19 Information Technology and Management. Uta Kohl and Andrew Charlesworth, Information Technology Law (Taylor and Francis, 4th ed. 2013). Kashmir Hill, How Target Figured Out A Teen Girl Was Pregnant Before her Father Did (2012) Forbes. Ibid. Christopher Hadnagy, et al, ‘Phishing Dark Waters: The Offensive and Defensive Sides of Malicious E-mails (2015 John Wiley & Sons, Incorporated). Privacy Act 1988 (Cth). Insurance Specialists, List of Data Breaches in Australia and Overseas (Web Page, 2020), https:// www.insurancespecialists.com.au/data-breach-list/>. Kelly Haywood and Gary Adshead, ‘Unforgivable’: The Privacy Breach that Exposed Sensitive Details of WA’s Virus Fight, The Age (Web Page, 2020) < https://www. theage.com.au/national/western-australia/unforgivablethe-privacy-breach-that-exposed-sensitive-details-ofwa-s-virus-fight-20200720-p55dsm.html>. Privacy Act 1988 (Cth). Proceedings against Tietosuojavaltuutettu(Jehovanto distajat–Uskonnollinenyhdyskunta,Intervening) [2019]1 C.M.L.R.5. Kate O’Flaherty, ‘Marriott CEO Reveals new Details about mega Breach’ Forbes (Web Page, 2019) < https://www.forbes.com/sites/ kateoflahertyuk/2019/03/11/marriott-ceo-reveals-newdetails-about-mega-breach/#39e8ae07155c>. Moses, The Hack of Marriott hotels Exposed 5 Million Passports in Plain Text, Invest in Cyber (Web Page, 2019), http://invest-in-cyber.com/the-hack-of-marriotthotels-exposed-5-million-passports-in-plain-text/>. Derrick Rountree, Security for Microsoft Windows System Administrators (Syngress, 2011). Market Watch (Web Page) < https://www.marketwatch. com/investing/stock/mar>. Alex Scroxton, Marriott Slapped with Class Action Lawsuit over 2018 Breach, Computer Weekly (Web Page, 2018) < https://www.computerweekly.com/ news/252487841/Marriott-slapped-with-class-actionlawsuit-over-2018-breach>. Jeffrey Allen, Techno-Ethics, and the Practice of Law (2011) 24 American Journal of Family Law 4. ECU, Client Data Potentially at Risk Due to Lawyer’s Lack of Cybersecurity, ECU (2018, Web Page) < https://www.ecu.edu.au/news/latest-news/2018/05/ client-data-potentially-at-risk-due-to-lawyers-lack-ofcybersecurity>. Legal Professions Rule 2010 (WA).

The Corruption and Crime Commission: its beginnings, purpose and effectiveness by Tse Chee Loo Senior Lawyer, Corruption and Crime Commission ‘Western Australians deserve a Police Service and a public sector that are free from the scourge of corruption’.1

The solution to the ‘scourge’ proposed by former Attorney General Jim McGinty in 2003 was the Corruption and Crime Commission. The Commission was touted as ‘one of the most powerful crime and corruption fighting bodies in Australia’,2 that would be able to investigate Western Australian Judges, Ministers, Members of Parliament, Police and other public officers. Since its inception, the Commission has turned its attention to a diverse range of allegations of misconduct and, more recently, unexplained wealth allegations. In its early days, the Commission made headlines by probing into the proposed Smiths Beach Development in Yallingup - focussing on the attempts of former Premier, Brian Burke, and former Labor Government minister, Julian Grill, to influence public service officers involved in the development proposal.3 The Commission became associated in the public consciousness with Mr Burke wearing his signature panama hat.4 The Commission has since dealt with thousands of misconduct allegations, such as vehicle examiners accepting cash

28 | BRIEF FEBRUARY 2021

bribes to certify vehicles as roadworthy without examining them,5 senior executives at the North Metropolitan Health Service accepting bribes from contractors,6 and the use of electorate allowances by former Member of Parliament Mr Phillip Edman to fund visits to strip clubs, travel and entertainment for female companions, speeding infringements and expenses associated with Mr Edman’s private yacht.7 In 2019, the Commission’s identification of multiple, dubious payments authorised by the Acting Director-General of the Department of Communities led to an investigation of one of the largest cases of public sector fraud in Australia’s history. Following a cooperative investigation between the Commission, the WA

Police Force and the Department of Communities, the WA Police Force charged Mr Paul Whyte with over 500 corruption offences, totalling in excess of $22 million. Mr Whyte pleaded guilty to 530 corruption charges and is yet to enter pleas in relation to further charges. The Commission’s remit extends beyond investigating individual wrongdoing, to reporting on broader issues of public importance - such as the use of Taser weapons by the WA Police Force8 and misconduct risks in WA prisons.9 In 2018, the Commission took on a much greater role in tackling organised crime when it was granted additional powers to investigate unexplained wealth and criminal benefits, and to apply to the courts to freeze and confiscate assets. This significant change has assisted the Commission to fulfil its statutory functions and purposes as a ‘Crime Commission’ to combat and reduce the incidence of organised crime and illicit activity in WA. In October last year, the Commission resolved its first unexplained wealth matter in the Supreme Court. The matter had been referred to the Commission by

investigatory purposes are much broader. In a misconduct investigation, for example, the Commission must also seek to ascertain how the misconduct came about, why it was not prevented or detected, whether it extends beyond the individual agency, whether it is the result of systemic flaws and what organisation or policy or procedural changes are necessary to prevent or deal with such conduct in future.15 Commission examinations are conducted in private unless, having weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements, the Commission considers it is in the public interest to conduct a public examination.16 The Commission is not bound by the rules of evidence and can inform itself on any matter in such manner as it thinks fit.17

What happens when the Commission concludes an investigation? Following a serious misconduct investigation, the Commission may prepare a report to Parliament which may include statements as to its assessments, opinions and recommendations.18 Before reporting any matters adverse to a person or body, the Commission must give the person or body a reasonable opportunity to make representations concerning those matters.19 the WA Police Force after an investigation by the Organised Crime Squad into activities of three persons, which did not lead to criminal charges by the Police. The Commission was successful in obtaining freezing orders over assets including cash, a Ferrari and Rolex watches. The Supreme Court made an unexplained wealth declaration for almost $630,000 and ordered the confiscation of cash and assets.

of performing its unexplained wealth function.

How does the Commission investigate allegations? The Corruption and Crime Commission has significant powers of investigation in the Corruption, Crime and Misconduct Act 2003. If the Commission determines that a matter should be investigated, it can execute search warrants,10 apply for telecommunications service warrants and surveillance device warrants,11 conduct controlled operations,12 and compel persons to produce documents and other things.13

The Commission’s functions do not include prosecuting individuals for offences arising from a Commission investigation, as the Court of Appeal made clear in A v Maughan [2016] WASCA 128. However the Commission can assemble evidence that may be admissible in a prosecution and furnish it to a prosecuting authority or recommend that consideration be given to prosecuting a particular person.20 In performing its unexplained wealth function, the Commission has authority to apply for unexplained wealth and criminal benefits declarations. To satisfy liabilities that arise from such declarations, the Commission applies to the court for property confiscation orders. These are key steps taken by the Commission to disrupt criminal activity by removing the financial motivation for it.

In the same month, the Supreme Court made a criminal benefits declaration against Mr Paul Whyte. The criminal benefit acquired by Mr Whyte, to the exclusion of others who benefitted from the commission of his confiscation offences, was assessed as over $11 million. The Commission obtained orders to confiscate assets including two Mosman Park properties, Mr Whyte’s interest in a government superannuation fund and his interest in his father’s deceased estate, as well as monies connected with his interest in horses.

The Commission may conduct an examination for the purposes of an investigation.14 An examination is inquisitorial; that is, it is an inquiry conducted by the Commission to ascertain facts. It is not an adversarial contest between parties trying to prove or disprove a case.

Has the Commission freed Western Australia from the scourge of corruption?

In 2020 the Commission had $13-15 million in assets subject to Supreme Court freezing orders in the course

Whilst the purpose of a police investigation is to obtain evidence about an alleged offence, the Commission’s

Unsurprisingly, given the extraordinary coercive powers the Commission has under the Act and the nature of the

conduct it uncovers, the Commission is not without its adversaries and vocal opponents. Commissioner John McKechnie QC, who applied for reappointment after being the only Commissioner to last a full five year term, observed, ‘Anyone who becomes Commissioner to earn the love and respect of their fellow human beings, had a poor choice of career adviser’.21 Given its purpose, the success of the Commission will never be measured by how many persons are convicted of criminal offences or have property confiscated as a result of its investigations. In terms of its unexplained wealth function, the true measure of its success is the extent to which it disrupts crime, particularly organised crime, by reducing the profitability of illegal activities - in turn, reducing harm to the community. In terms of its serious misconduct function, the measure of the Commission’s success is the extent to which it helps foster a culture of integrity in the public sector of Western Australia.22 Back in 2008, former Parliamentary Inspector Malcolm McCusker AC CVO QC, was asked to look forward to the year 2020. He expressed hope that the Commission would eventually come close to “working itself out of a job” by establishing a culture within the public service where there is a heightened awareness and consciousness of what is “misconduct”, and of the high standards expected in public office.23 It is trite to observe that ‘culture’ is a

30 | BRIEF FEBRUARY 2021

nebulous concept that is difficult to measure. Nevertheless, I put forward one figure for consideration. In the last financial year, the Commission assessed 5,743 allegations of serious misconduct, half of which were from members of the public, and 28 referrals of potential unexplained wealth matters.24 By way of comparison, the Commission assessed 2,410 allegations in the 2004-2005 financial year. This may demonstrate improvement in public confidence in the Commission’s work, greater understanding of what misconduct entails and more willingness to report suspected misconduct. It is fitting to end with the words of the Commission’s longest serving Commissioner, John McKechnie, QC, speaking on International Anti-Corruption Day in 2016: My message today, is for everyone in the community to express their abhorrence of corrupt behaviour, in any form they encounter, by reporting it to the Commission, or the Police, or the Public Sector Commissioner. Make it too uncomfortable for the public officer who may be tempted to stray from their duty. This is not a responsibility that just falls on the Commission or other official body. Everyone who loves this State of ours, has a responsibility not to stand by but to stand up to corrupt activity. Anyone can make a difference.

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

Endnotes 1 2

Western Australia, Hansard, Legislative Assembly, 15 May 2003, 7861 (JA McGinty, Attorney-General). Western Australia, Hansard, Legislative Assembly, 15 May 2003, 7861 (JA McGinty, Attorney-General).

Corruption and Crime Commission, Report on the Investigation of Alleged Public Sector Misconduct Linked to the Smiths Beach Development at Yallingup, 5 October 2007; Corruption and Crime Commission, Supplementary Report on the Investigation of Alleged Public Sector Misconduct Linked to the Smiths Beach Development at Yallingup, 27 August 2009. Mr Burke was convicted of giving false evidence during a Commission examination and fined $25,000. Mr Burke, Mr Grill and former ministerial staffer Nathan Hondros were acquitted of corruption charges in the Supreme Court. The DPP’s appeal was successful but the retrial was abandoned when the DPP determined it was no longer in the public interest to continue. Corruption and Crime Commission, Report on the Investigation of Alleged Public Sector Misconduct by Employees of the Department for Planning and Infrastructure in Relation to the Inspection, Licensing and Registration of Motor Vehicles, 16 September 2010; Corruption and Crime Commission, Report on the Activities of Certain Vehicle Examiners Contracted by the Department of Transport, 24 January 2017. Corruption and Crime Commission, Report into bribery and corruption in maintenance and service contracts within North Metropolitan Health Service, 16 August 2018. Corruption and Crime Commission, Misconduct risks in electorate allowances for Members of Parliament, 17 December 2019. Corruption and Crime Commission, The Use of Taser Weapons by Western Australia Police, 4 October 2020. Corruption and Crime Commission, Report into misconduct risks in WA prisons, 26 October 2018. Corruption, Crime and Misconduct Act 2003 (CCM Act) s 101. Pursuant to the Telecommunications (Interception and Access) Act 1979 (Cth) and Surveillance Devices Act 1998. CCM Act s 121. CCM Act ss 9 4 and 9 5. CCM Act s 137. The Hon. Len Roberts-Smith RFD, QC, The Role of the Corruption and Crime Commission in the Constitutional System of Western Australia, 19 August 2010. CCM Act s 140. CCM Act s 135. CCM Act s 84. CCM Act s 86. CCM Act s 18(2)(h) and s 43. Transcript of speech by John McKechnie QC for International Anti-Corruption Day 2016. CCM Act s 7A; The Hon. Len Roberts-Smith RFD, QC, The Role of the Corruption and Crime Commission in the Constitutional System of Western Australia, 19 August 2010. Malcolm McCusker AO QC, Parliamentary Inspector of the Corruption and Crime Commission, Public Accountability of the CCC, Vista Public Lecture Series: 2008 Theme: “20/20 Vision”, 18 June 2008, https://sat. justice.wa.gov.au/_files/Malcolm_McCusker_Lecture. pdf Corruption and Crime Commission Annual Report 2019-2020.

Freedom of Information from the Age of Enlightenment to the Digital Age, and Beyond

by Catherine Fletcher Information Commissioner, Office of the Information Commissioner (WA) This paper provides an overview of the origins and operation of information access laws that apply to government-held documents. It discusses some contemporary issues and challenges that face such laws in the digital age and beyond, with particular reference to the Freedom of Information Act 1992 (WA).

A defining characteristic of most governments that prevailed well into the twentieth century was the tendency to protect, rather than share, information. This was the concept of â&#x20AC;&#x2DC;arcana imperiiâ&#x20AC;&#x2122; (state secrets) whereby information in the hands of government was not routinely shared with those outside government.1 However, unwarranted secrecy surrounding government policy, decision or action has long been regarded as the antithesis of good government, with moves to address it dating from the eighteenth-century Enlightenment Age.

key antidote to excessive state secrecy. FOI law is alternatively, more recently, sometimes called right to information (RTI) or right to know (RTK) law, and generically such laws are referred to as information access laws. Such laws are frequently promoted in functional democracies as a key mechanism for ensuring government accountability and transparency. Some information access laws explicitly state that government-held information and data are public assets, to be managed for public purposes.2 A strong correlation between access to information and trust in government also underscores the accelerated growth in information access laws, particularly in the final two decades of the twentieth century.

With the advent of the Information Age in the mid twentieth century freedom of information (FOI) law emerged as a

In their most basic form, such laws generally provide a right to access government documents, subject to certain

The United States was the first modern democracy3 to enact FOI law in 1966.4 Australia and New Zealand followed in 1982.5 WA enacted an FOI Act in 1992. Britain did not overturn official secrecy until the new millennium.6 In 2020, over 120 countries across the world now have some form of information access law.7

exemptions and/or exceptions, and often include a right to amend or correct personal information in government documents.8 Reformed or recently enacted laws also place significant emphasis on pro-active disclosure of government information and data. Most information access laws seek to balance the right of citizens to information whilst also providing protection for some documents and/or information so that government can function effectively. Today governments operate in an environment that is increasingly information rich and digitally enabled. This is often accompanied by, or leads to, changing citizen expectations of government services. It is now commonly understood that information and its control play a critical role in the relationship between governments and their citizens9. Considering the role and significance of information access laws in a functional democracy, this raises the issue of whether reforms are needed for such laws to remain relevant and effective in the digital age? 31

The development of information access laws across the world During the eighteenth-century Enlightenment Age, Sweden and Finland enacted laws requiring their governments to provide citizens with the right to access official information and related rights to publish such information.10 The impetus for FOI laws in the US began in earnest in an era of increasing government secrecy during the Cold War with the Soviet Union. Senator John Moss, elected to Congress in 1952, began advocating for greater government openness following mass sackings of federal employees accused of being communists during the McCarthyism period. When Moss asked to see the records associated with the dismissals, the administration refused to hand them over. After Moss became chairman of a congressional subcommittee on government information in 1955, he held hearings about government transparency and conducted investigations into federal agencies withholding information. Newspaper editors, journalists, educators and scientists were among those who supported Moss’s campaign against government secrecy, while many federal agencies and their leaders opposed it as being detrimental to their work. In 1966, after more than a decade of effort, Moss was able to gather enough support in Congress to pass the first United States FOI law. President Lyndon Johnson, the US President at that time, initially believed the proposed FOI law would limit the ability of government officials to communicate and function effectively. Ultimately he agreed to the law and, upon signing the Bill, said that “I sign this measure with a deep sense of pride that the United States is an open society”. 11 However the initial US FOI Act lacked the necessary force to oblige federal government agencies to comply. It wasn’t until 1974 (after the Watergate Scandal involving the Nixon administration and increasing public concern over the Vietnam war which peaked with the release of the Pentagon Papers) that Congress amended the FOI Act with a series of laws designed to promote greater accountability and transparency in government decision making.12 Despite these ground breaking developments in the US, a global tendency to default to state secrecy persisted for a long time, particularly in Britain which did not repeal its broadreaching Official Secrets Act 1911 until 1989.13 In 1989, there were still only 13 national information access laws in the 32 | BRIEF FEBRUARY 2021

world. Britain finally enacted an FOI Act in 2000 but the government delayed its implementation so that it only became fully operational in 2005. New Zealand was an early adopter of modern information access laws in 1982.14 The NZ law provides that all government information is to be open unless there is “good reason” to protect it. Absolute exemptions or exclusions are minimal, and mostly relate to national security which must be established by those claiming such an exemption. Although the laws were initially met with alarm by some politicians and a large number of public servants, the prevailing contemporary view is that they significantly changed the culture of government to one of openness under which a great deal of information is now made public as a matter of routine and open government is now deeply ingrained.15 In 2018 NZ took a significant step reforming the cabinet confidentiality exemption so that most cabinet records are now released after only 30 days unless there is a good reason not to.16 This is in stark contrast to the decades of protection for cabinet records under state and federal information access laws in Australia. As a world leader in FOI laws, this factor plays into a consistently high rating for New Zealand on various international indices that rank countries on transparency measures. The development of federal FOI laws in Australia has been described as follows: It was the passing of freedom of information legislation in the United States in 1966 and the growth of the consumer rights movement there that prompted a push for FOI legislation in Australia. It is a measure of the entrenched assumption of secrecy within government and bureaucracy (inherited, no doubt, from England) that it took a decade and half before FOI became law in Australia in December 1982. 17 Across Australia, FOI laws were often driven by major political events that raised significant public concerns about lack of transparency and corruption. Ricketson explains this as follows: Federally, although the Act was eventually introduced by the Fraser Coalition Government, the initial impetus came from the Whitlam Labor government, which had spent 23 years in opposition during the Menzies era and beyond. In Victoria, FOI was introduced by John Cain (in 1982), whose Labour Party had been in opposition since 1955 and who was trenchantly critical

of purportedly corrupt ‘land deals’ by the Liberal government in its final years. In New South Wales, Nick Greiner brought in FOI in 1989 after railing about endemic corruption within Neville Wran and Barrie Unsworth’s Labor governments the 1970s and 1980s. In Western Australia, FOI was passed in 1992 in the wake of the Royal Commission into WA Inc, and in Queensland, Labor’s Wayne Goss came to power after his party had been in opposition for 32 years. In the furore surrounding the institutionalised corruption revealed by Tony Fitzgerald QC, in his exhaustive inquiry (which concluded in 1989), Goss promised to unflinchingly implement Fitzgerald’s wideranging reforms, which included freedom of information. In Tasmania, the independent Green MP Bob Brown seized the opportunity of the Green-Labor accord Government to push through FOI in the early 1990s.” Changes in the field of administrative law during the 1970s and early 1980s also contributed to the development of Australian information access laws. The ‘new administrative law’ served to increase openness and transparency in government while also supporting public administration and the rights of individual citizens.18 First generation information access laws are often characterised by adoption of a ‘pull model’ in which the public must pull information out of the government system through an FOI request, subject to any relevant exemptions/exceptions applied by a government agency. Second generation information access laws more commonly adopt a ‘push model’ because they encourage or require agencies to push information out to the public through proactive release rather than discretionary access. Qld,19 NSW20 and the ACT21 have clear ‘push model’ style laws which support broader pro-disclosure public sector information regimes.22 Despite jurisdictional differences, Australian information access laws share similar objectives that, at a minimum, provide a right of access to governmentheld documents that is intended to enhance government transparency and accountability.

WA FOI Laws In Western Australia the Freedom of Information Act 1992 (WA) (FOI Act) is regarded as a hybrid of the push and pull models. It operates to provide a discretionary right of access to documents of state and local government

subject to a valid access application being made (i.e. documents must be pulled out). However it also requires state and local government agencies to regularly publish an information statement describing i) what kinds of documents the agency usually holds and how they can be accessed; and ii) information that enables members of the public to participate in the agency’s policy formulation and performance of its functions. The FOI Act also requires that an agency’s internal manuals are to be made available to the public.23 The origins of the FOI Act lie in the 1992 seminal report of the WA Royal Commission into the Commercial Activities of Government and Other Matters which dealt with various political and financial scandals of the 1980s (commonly referred to as the ‘WA Inc. Report’).24 In addition to numerous findings and recommendations that were particularly scathing of the lack of proper documentation for government decision-making and associated poor record keeping, the Commission referred to several fundamental principles of good government, including the ‘trust principle’.25 The Commission identified three goals necessary to safeguard the credibility of democracy and provide an acceptable foundation for public trust and confidence in our system of government: •

government must be conducted openly;

•

public officials and agencies must be made accountable for their actions; and

•

there must be integrity both in the processes of government and in the conduct expected of public officials.

One of the key recommendations was that FOI laws be enacted in WA as a matter of priority. Other recommendations included a review of secrecy laws, establishment of an Administrative Appeals Tribunal and an anti-corruption body, implementation of whistleblowing procedures, increased powers for the Auditor-General, a limitation of confidentiality agreements in commercial dealings with government, and the establishment of an independent Archives Authority (which ultimately became the State Records Office). A subsequent Commission on Government (COG) was established in response to the recommendations of the Royal Commission. COG delivered a report in 1995, Part 2 of which addressed topics of open government, accountability and the administrative

system. In connection with ‘open government’ the COG Commissioners noted the importance of public access to information in the democratic process.26 In the Commissioners’ view, information is the key to accountability and, to fulfil that purpose, information of or about government must be made optimally available or accessible to the public and it must have integrity. 27 The emphasis on ‘optimally’ available recognised that official secrecy does have a place in the conduct of government. However, openness should be the norm, with secrecy as the exception. Regarding the ‘integrity’ of information, the Commissioners explained that government information must give a proper picture of the matter to which it relates. It must not aim to mislead or to create half-truths. 28 The WA Inc. and COG Reports significantly enhanced government accountability and transparency by championing the introduction of the FOI Act, the State Records Act 2000 (WA) and other measures.29 The FOI Act became operative in 1993. The Preamble says it is “(A)n Act to provide for public access to documents, and to enable the public to ensure that personal information in documents is accurate, complete, up to date and not misleading, and for related purposes”.30 The objects of the FOI Act are to enable the public to participate more effectively in governing the state, and make the persons and bodies that are responsible for state and local government more accountable to the public.31 The WA Supreme Court has stated that these objects: “form the essential bedrock of open, democratic government. Their policy importance … cannot be overstated.” 32

The FOI Act creates a general right of access to government-held documents, subject to limitations in the Act including exemptions for documents containing certain types of information. During the second reading speech in 1991 the Hon. David Smith, the then Minister for Justice, explained how the exemptions and, more broadly, the Act were intended to work: “Although the public has an interest in access to information, they also have an interest in the proper functioning of government and in protecting the privacy of individuals and the commercial interests of business organisations. The Bill is intended to strike a proper balance between competing interests. Schedule 1 contains a limited number of clearly defined exemptions necessary to protect certain essential public and private interests. However, even where an exemption may apply, it is not a prohibition on disclosure; where they can properly do so, Ministers and agencies are free to make that information available. In addition, most exemptions incorporate a public interest test which specifically requires a consideration of the public interest in disclosure. The Bill further protects the privacy of individuals and the commercial interest of businesses about whom the Government hold information by ensuring that documents containing personal or business information about third parties is not given out without the third party being consulted.” 33 After almost 30 years since its enactment, the FOI Act remains largely unchanged. Access to thousands of government documents has been given both within and outside of the FOI process over that time. During 12 months over the 2019/20 financial period there were more than 18,000 access applications made to WA 33

state and local government authorities. Over half of these access applications were for personal information held by health-related agencies (a trend similar to that seen in many other jurisdictions). Almost 90% of all access applications resulted in the applicant receiving full or partial access to the requested documents. Only less than one per cent of those agency access decisions were reviewed by the Information Commissioner. On those measures, the FOI Act appears to serve the community reasonably well. However, recent national data provided by Australian Information Commissioners and Ombudsmen administering FOI/RTI laws about how such laws are used also reveals some other interesting trends.34 Since 2014 WA has consistently had the highest rate of formal access applications per capita, one of the highest rates of full or partial access to requested document/s and the lowest rate of external review application in Australia. Whilst no published commentary is yet available to explain these trends the possibility exists that the high rate of use of the FOI Act to successfully obtain noncontentious information may be due to an overdependence on the formal processes of giving access to documents pursuant to the FOI Act as opposed to simpler, less costly and more timely, administrative or informal access obtained outside of the FOI Act.

Information access laws in the Digital Age and beyond A 2018 survey highlights rising levels of e-government internationally.35 Governments are, increasingly, large collectors and repositories of digital data. The use of big data for automated decision making is also becoming more common. Australia is no exception to this global digital trend. Accompanying digital transformation there is a growing demand for transparency around government use of technologies - particularly in respect of artificial intelligence (AI) or machine learning - and accountable management of vast data pools particularly those containing personal or private information. The increasing proliferation of digital records and data also raises the issue of how we readily locate useful and relevant data. These are just some of the contemporary challenges for information access laws. Many years ago Marie Shroff, a former NZ Privacy Commissioner, forecasted that information access laws must keep pace with, and embrace the development 34 | BRIEF FEBRUARY 2021

of, new and emerging technology as society moves into the digital age. She suggested that the challenge is to harness these new technologies to better serve the democratic ideals that underpin information access laws. 36 The increasing relevance of information access and privacy laws in this digital paradigm was also the subject of a 2019 article examining how trust in government can be maintained at a time of significant digital disruption. The author observed: As digital government begins to take shape, the public sector is entering a new era of citizen expectations. Emerging technologies offer opportunities for collaboration, information sharing and data analysis, all of which can support better policy and services. But there are growing public concerns about privacy and security; questions about ownership and appropriate use of personal information. Is open government still relevant? Governments worldwide are striving to maintain public trust at a time of significant disruption. Agencies are under pressure to be more transparent about their actions and decision-making processes. 37 The author went on to consider some of the challenges and opportunities in this changing environment: Open government has never been more critical for meeting customer expectations, building confidence and delivering public value. … Information governance by-design can play an important role in overcoming challenges and supporting reform, reducing the cost and complexity associated with both proactive and responsive information release. All Australian states and territories, other than Western Australia and South Australia, have privacy legislation governing the handling of personal information. Some also have data-sharing legislation. While the FOI Act provides some limited protection for personal information and a right to amend personal information in government records, it is not a comprehensive privacy framework. Proposed privacy and data-sharing legislation for WA appears to be on the government’s agenda. It was the subject of a public discussion paper developed by the Department of Premier and Cabinet in 2019. To date the Government has yet to decide upon the timing and form of those proposed laws.38 So, even with the prospect of enhanced protection for personal and private

information in WA, the issue arises whether the FOI Act can continue to fulfil its democratic objectives at a time when most, if not all, documents will be ‘borndigital’? Marie Shroff considered the possibility that digital technology has the potential to open up and facilitate information access to achieve a truly participative democracy. She suggested that future FOI reform must focus on the digital environment and practical problems of compliance, such as multiple versions of a document and the administrative burden of FOI requests.39 Proliferation of digital records is already an issue of significance. That trend will only continue such that questions about what records we create, retain and make accessible will assume far greater importance than ever before. It therefore seems obvious that document governance must be at the front of mind in the digital age if we are to make sense of, and hold accountable, government decision-making.40 Others also point out that when the opportunities of the digital age combine with a willingness to be more transparent that this allows for a more authentic and deeper form of engagement with the community and citizens.41 Some countries, like Taiwan for example42, have already seized upon these opportunities with significant success particularly in response to the challenges presented by the current Covid-19 pandemic. While proactive information and data disclosure occurs in some parts of the WA public sector43 the concept of ‘open by design’ - in which non-sensitive government information and data is, by default, made open and accessible from creation – is not embedded in any statewide information management policy or information access law. Whatever legislative or policy reforms emerge in the future, it would be in keeping with the current objects of the WA FOI Act for the public sector to further embrace open and transparent government by proactively pushing out (at no or low cost) more administrative and scientific data, and other nonsensitive digital information, which is both interactive and searchable. The availability of such information would have numerous benefits. It would assist in the legibility and accountability of government decisions thereby engendering public trust; and provide opportunities for new insights, new services and even other benefits that the most enlightened and creative thinkers have yet to imagine.

In that environment, a formal FOI access request to access government - held documents would be a last resort reserved for the more contentious or sensitive information where a balancing of the applicable exemptions and public interest factors under the FOI Act is required. Endnotes 1

‘Too much of a good thing? Balancing transparency and government effectiveness in FOI public interest decision-making’, Danielle Moon and Carolyn Adams, AIAL Forum no. 82, at pp. 28 – 39.

For example, see clause 1 (b) in the Preamble to the Right to Information Act 2009 (Qld) and the Objects clause in section 3(3) of the Freedom of Information Act 1982 (Cth).

The US laws were preceded by a much earlier law enacted in Sweden in 1766 that required government to make information available to the press to enable it to report on the affairs of State to its citizens.

The Public Information Act 1966 (US) - When the twopage bill was signed into law, it was enacted July 4, 1966, but had an effective date of one year later being July 4, 1967.

The Freedom of information Act 1982 (Cth); and the Official Information Act 1982 (NZ)

Paper presented to the FOI Live 2005 Conference in London, 16 June 2005, entitled ‘The Official Information Act and Privacy: New Zealand’s Story’ by Marie Shroff (former Cabinet secretary and NZ Privacy Commissioner) accessed at https://www. humanrightsinitiative.org/programs/ai/rti/international/ laws_papers/newzealand/official_info_act_privacy_ newzealand_story.pdf.

‘In confidence’ cabinet submission papers for decisions taken as recently as last week are marked “proactively released”.

Ricketson, M 1996, ‘Freedom from Information’, Freedom of Information Review, 63, pp.26 – 28.

G Terrill, Secrecy and openness: the federal government from Menzies to Whitlam and beyond, Melbourne University Press, Melbourne, 2000; and M Paterson, Freedom of information and privacy in Australia: Government and information access in the modern state, Lexis Nexis, Chatswood, 2005, p. 4.cited in Dr Mark Rodrigues, Cabinet Confidentiality (28 May 2010) at: https://www.aph.gov.au/About_Parliament/ Parliamentary_Departments/Parliamentary_Library/ pubs/BN/0910/CabinetConfidentiality

Right to Information Act 2009. (Qld)

Government Information (Public Access) Act 2009 (NSW)

The FOI Act also informs the way that FOI and information access is practiced by agencies.

Section 3(1) contains the objects section. Section 3(2) provides for how the objects of the Act are to be achieved. See also further s.3(3) which provides that nothing in the Act is intended to prevent or discourage the publication of information, or the giving of access to documents, or the amendment of personal information, otherwise than under the Act if it can properly be done or is permitted or required by law to be done.

Martin J in Water Corporation v McKay [2010] WASC 210 at [38] available online at http://www8.austlii.edu. au/cgi-bin/viewdoc/au/cases/wa/WAICmr/2009/35. html.

Hansard 28 November 1991, at p. 7170.

Refer to Metrics 2, 3 and 6 in the National Metrics on FOI Use sourced on 15.10.20 at https://www.oic. wa.gov.au/Materials/OpenGov/OpenGov_Metrics5. PDF#page=5.

United Nations E-Government Survey 2018 Report of the UN Department of Economic and Social Affairs, Gearing E-Government To Support Transformation Towards Sustainable And Resilient Societies, accessed at https://publicadministration.un.org/egovkb/ Portals/egovkb/Documents/un/2018-Survey/EGovernment%20Survey%202018_FINAL%20for%20 web.pdf on 16.10.19.

See n.14 above.

S. Sherman, ‘How Can The APS Maintain Trust At A Time Of Significant Disruption?’, Mandarin Online, https://www.themandarin.com.au/103784-opengovernment/ 11 February 2019

Note that the Freedom of Information Act 1982 (Cth) has been partially modernised in this way since it was amended in 2009/2010.

Information about the progress of this project is available at https://www.wa.gov.au/government/ privacy-and-responsible-information-sharing.

See n.14 above.

These are manuals used by the agency in connection with the performance of its functions that affect or are likely to affect rights, privileges or other benefits, or obligations, penalties or other detriments, to which members of the public may be entitled or otherwise subjected to.

See the WA State Records Office 2018 publication ‘Born Digital – Managing Government Information and Data’ available online at http://www.sro.wa.gov.au/ sites/default/files/born_digital.pdf.

Opening Government – Transparency and Engagement ion the Information Age published by ANU Press, 2018, edited by Wanna J. and Vincent, S. at page 14.

The principal proponent of the Swedish laws was Anders Chydenius (1729-1803), a member of the political establishment, who advocated for openness and good governance in government.

The Royal Commission was established in 1990 to examine, inter alia, the commercial dealings of the Brian Burke Labor Government.

In his signing statement LBJ attempted to downplay the new FOI law by focusing on the exemptions for national security and the Act’s scope for interpretation. However the last sentence of his statement is the most enduring: sourced from https://www.history.com/ topics/1960s/freedom-of-information-act on 15.10.19.

The ‘trust principle’ was described by the Commissioners as being the principle that the institutions of government, and the officials and agencies of government, exist for the public to serve the interests of the public.

See Hacking the pandemic: how Taiwan’s digital democracy holds COVID-19 at bay https:// theconversation.com/hacking-the-pandemic-howtaiwans-digital-democracy-holds-covid-19-atbay-145023 accessed on 22.1.21.

The COG Commissioners referred in this regard to the 1980 High Court case of Commonwealth of Australia and John Fairfax & Sons Ltd (1980) 32 ALR 485 at 493 in which the then Chief Justice said: “…. it is unacceptable, in our democratic society, that there should be a restraint on the publication of information relating to government when the only vice in that information is that it enables the public to discuss, review and criticise government action.”

For example see the WA Open Data Portal at https:// data.wa.gov.au/Blog/open-data-portal.

At [2.1.10] of the COG Report.

Recommendations 1 and 2 of Chapter 2 of the COG Report on ‘Open Government’

These measures included the creation of the Public Sector Management Act 1994, a public sector standards commissioner and public sector commission

The Freedom of Information Act 2000 (UK) Source: https://www.article19.org/issue/access-toinformation/ accessed on 14.10.2020.

In WA, s. 10 creates a right to access documents of an non-exempt agency (subject to and in accordance with the FOI Act) and s.45 of the FOI Act creates a right to apply to amend personal information in documents of an agency if the information is inaccurate, incomplete, out of date or misleading.

Official Information Act 1982 (NZ)

Freedom Of Information Act 2016 (ACT) – this is the most recent FOI law but it only became fully operative in 2018. It has a clear emphasis on open access and pro-disclosure of government information in the ACT.

and later enhancements to the Auditor General’s Act 2006.

information began when FOI bills were introduced into the Parliament in 1978, 1981 and 1992 but which were either defeated or fell away on each occasion. In 1997 the government published a white paper on Your Right to Know.

Freedom of Information and Privacy in Australia: Information Access 2.0, Patterson Moira, 2015, Reed International Books Australia Pty Ltd trading as LEXISNEXIS at p. 1

The Government in the Sunshine Act 1976 was one of these amending acts that provided, with ten specified exemptions, that ‘every portion of every meeting of an agency shall be open to public observation’. It applied to the operations of the federal government, Congress, federal commissions, and other legally constituted federal bodies.

The Official Secrets Act 1911 made the unauthorised disclosure of any information on any subject an offence. This remained the law until the early 1970s. Very piecemeal progress towards granting citizens access to certain or select kinds of government

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Defining ‘Sexual Abuse’ under the Civil Liabilities Act: An Opportunity to Consider Our Approach by Lillian Robb

In March 2020, Herron DCJ handed down his judgment in the case of Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27 (‘Lawrence’). This case required Herron DCJ to enter into a challenging discussion; what distinguishes sexual abuse from physical abuse? The decision in Lawrence is the first to be handed down in WA since the 2018 amendment of the Limitation Act 2005 (WA) (‘Limitation Act’) to remove the statutory limitation period on historical sexual abuse matters. Mr Lawrence was subject to a number of abuses over a period of many years. Of these, most are clearly and without exception to be considered as ‘sexual abuse’. However, there are two instances that brought into dispute the meaning of ‘child sexual abuse’ and ‘sexual abuse’

36 | BRIEF FEBRUARY 2021

for the purposes of the Civil Liability Act 2002 (WA) (‘CLA’).1 The defendant argued that the conduct in both of these instances did not constitute child sexual abuse,2 and in so doing singled them out from the other incidences.3 The recent amendments to the Limitation Act and the CLA are the first stage in implementing legislative reform in WA to reflect the recommendations of the Royal Commission into Institutional Sexual Abuse.4 In this climate, with the door open for further cases, Lawrence presents the

food for a timely consideration of how we define ‘sexual abuse’ in the context of civil claims in Western Australia. The jurisprudence that arises will have longstanding impacts on sexual assault cases in WA. The first incidence in which sexual nature of the abuse was in question involved the following: “[o]n one occasion at Clontarf, then the Plaintiff was about 12, Brother Foley took the Plaintiff to the gym and then made the Plaintiff lift weights while naked with Brother Foley watching”.5 The second is a series of incidents over a period of years during which “Brother Doyle would call the Plaintiff to his office, strip the Plaintiff naked from the waist down, questioned the Plaintiff about whether he had been engaged in sexual activity with other students, and then beat the Plaintiff across his bare backside with a cane whilst rubbing his bare hands

on the Plaintiff’s bare backside.”6 This incident was accompanied by various acts of physical abuse including refusing to give Mr Lawrence a parcel sent by his family,7 hitting him for no reason,8 and caning him or striking him with a strap.9

other than the physical abuser: “If the physical abuse is not connected to or associated with conduct for sexual gratification, the physical abuse does not fall within the meaning of the term sexual abuse.”17

At issue in relation to these incidents was whether either conduct comes within the meaning of ‘sexual abuse’ for the purposes of s 15A of the CLA and s 6A of the Limitation Act.10 ‘Sexual abuse’ is not defined in either Act, thus Herron DCJ turns to construing the term according to its ordinary, grammatical meaning having regard to the statutory context.11 On this point, Herron DCJ cites the explanatory memorandum to the CLA amendment which explains: “Sexual abuse’ is intentionally left undefined. The court will have latitude to determine the application of the term ‘sexual abuse’ in accordance with the ordinary meaning and common understanding of the term. A court will not be confined to acts or omissions that are criminal offences. Consistently with the focus of the Royal Commission and its Report, the Bill deals only with child sexual abuse and does not cover physical or emotional abuse or neglect which occurred during childhood.”12

Ultimately, Herron DCJ did not resolve the issue of whether ‘sexual abuse’ need always be for the purpose of sexual gratification, citing to Department of Health and Human Services v County Court of Victoria [2018] VSC 322 in which such a finding was not necessary to a finding of sexual abuse.18 Herron DCJ did find that both the instances for which the sexual element was disputed did constitute ‘sexual abuse’. In doing so, his honour relied heavily on the element of sexual gratification. As regards the first incident, Herron DCJ states: “For a person having the care of a young child to order the child to strip naked and lift weights while the person stood watching can only have been done for sexual gratification and because Brother Foley had a sexual interest in a young boy.”19 As regards the second: “the way in which Brother Doyle caned Mr Lawrence on his bare backside while questioning him about sexual activity with other boys, was a sexual act because it was done for mental sexual gratification.”20 For the second incident, his honour also made the finding that the act increased Mr Lawrence’s vulnerability to sexual assault stating that “The canings certainly impressed upon Mr Lawrence that nothing would be achieved if he reported the sexual abuse being perpetrated upon him. The manner of the canings reinforced in his mind from what he had seen or heard had happened to other boys reporting sexual abuse the fear that he would be beaten if he reported the sexual abuse being perpetrated upon him.”21

Herron DCJ interprets the ‘ordinary meaning’ of ‘sexual abuse’ by building upon both the parliamentary debates and relevant literature. One of the central authorities to which Herron DCJ refers13 is a book titled ‘New International Frontiers in Child Sexual Abuse’ written by Ben Mathews; former Professorial Fellow to the Australian Government’s Royal Commission into Institutional Responses to Child Sexual Abuse.14 From this source, together with others, Herron DCJ places the sexual gratification of the Perpetrator as a central element distinguishing physical abuse, not covered by the amendments, from sexual abuse. Referring to the definition used by Ben Mathews, Herron DCJ states: “Mr Mathews’ view that the concept of what is ‘sexual’ must involve sexual gratification reflects and is consistent with the explanation given by the Attorney General in the Parliamentary debates that physical abuse has not been included in the amending legislation when it does not involve an element of sexual stimulation.”15 Herron DCJ also extends the definition of ‘sexual abuse’ to acts which allow sexual abuse to occur by increasing the child’s vulnerability to sexual abuse, such as physical abuse arising out of the reporting of sexual abuse.16 This situation may arise only if the physical abuse is connected to the sexual gratification of the perpetrator, even where that perpetrator is someone

Bowden DCJ went on to consider Herron’s DCJ’s definition in GMB v Uniting Care West [2020] WADC 165.22 His honour made the finding that “sexual gratification by the abuser is not an element of the definition of child sexual abuse” however, the sexual gratification of the perpetrator can form the necessary ‘sexual connotation’ to render the abuse sexual.23 His honour went on to state that if the sexual gratification of the perpetrator was a requirement, it could be inferred from the areas of the body touched, frequency of the behaviour, and unusual nature of the acts performed.24 Placing the sexual gratification of a perpetrator as a factor in the definition of ‘sexual abuse’ is both challenging to prove and problematic as a requirement. This is the case whether it is a necessarily

element of the definition, or merely a factor given weight. To begin with the challenge, sexual stimulation or gratification is difficult as a matter of proof.25 This challenge was raised in the parliamentary debates accompanying the CLA amendments and addressed by the Attorney General when asked, hypothetically, if a victim of beating may be able to bring a claim under the legislation: Not without difficulty because it would require fact-finding. I do not want to hypothecate some weird scenarios of how we would evidence that it was sexually stimulating the abuser. I can think of a number now, but I do not think it helps the chamber. However, if there is an element of sexual excitement and the person is doing it for sexual gratification, yes. We recognise that it would have to involve a finding by a judge that that was the purpose. There may be ways of proving it because he may have done it to other children with sexuality attached to it; that tendency evidence could be brought in.26 This passage brings up two issues: first, it relies, in part, on evidence of other sexual offending. This may not always be available, particularly with historical claims. Second, what is sexually stimulated is wide ranging and hard to identify from a distance. For example, the Attorney General references sadomasochism in the parliamentary debates stating: “People who are into sadomasochistic practices might derive sexual stimulation from the application of pain to another. The way would be open for the court to find that to be sexual abuse because we have not confined the enlivening aspect of abuse that would involve some sexual stimulation of another.”27 This challenge is not insurmountable, as refenced by the Attorney General, but it does add a layer of complexity. The central placement of the sexual gratification of the perpetrator is also problematic. First, not all sexual offending involves sexual gratification. An example of this is provided by Ben Mathews in the definition cited by Herron DCJ: that of female genital mutilation.28 This is an act that involves no sexual element for the perpetrator, nor does it have the purpose of sexually gratifying another. However, the act of female genital mutilation has a lasting and severe sexual impact on the victim born of a denial of her ability to experience sexual pleasure. Another example, consider the use of rape as a weapon of war. In Rwanda, for instance, leaders from a range of armed forces

and military groups ordered their men to commit mass rape.29 Rape was also used in the former Yugoslavia where “Many Serb rapists acted on official orders to rape women as part of the ethnic cleansing”.30 This is a crime in which there is a person ordering rape, a rapist, and the rape victim. These crimes are ordered for reasons far removed from the sexual gratification of the ordering party, in Rwanda they were committed with the intent to destroy a group of people,31 and in the former Yugoslavia they were committed as a tool of ethnic cleansing.32 Similar considerations, those being intent behind rape and the act of forcing someone to rape another, may apply in a domestic context. An individual may force someone to rape another in the context of hazing. In this instance, again, the crime constituted a sex act which was forced onto both parties for a purpose other than the gratification of the perpetrator; the person forcing the rape. Rape may also be committed purely for the purpose of sexual humiliation or harm to another. For example, cases of ‘corrective rape’ in South Africa,33 including the case of Eudy Simelane,34 in which “men rape women in order to ‘cure’ them of their lesbianism”.35 This is a form of rape committed for reasons other than sexual gratification. These examples illustrate that acts may be sexual in nature, in these instances they constitute the act of forced sex or acts having a sexual impact, though they do not involve a connection with the sexual gratification of a perpetrator. Incorporating sexual gratification into the definition of ‘sexual abuse’ is also problematic because it imports with it subjectivity and invites social assumptions or norms. For example, in the first instance mentioned above, Mr Lawrence is a 12-year-old boy being watched naked by an older man who holds power. This brings with it a slay of conscious and subconscious associations that may play a part in the mind of the victim in deciding whether his claim is worth pursuing, in the way his claim is treated, and, crucially for the proof aspect, it may have affected whether other victims reported their abuse. However, what if the victim were 15 and the incident had occurred in a rowing locker room? What if the perpetrator were a female coach?36 It is difficult to quantify or foresee the impact that our assumptions about who is sexually stimulated by what may have. Further, it is difficult to deny that in our society some bodies are more sexualised than others. A female stripped naked may be more readily sexualised than a male stripped naked. An older person may be less readily sexualised than a younger person. These elements play a part in our 38 | BRIEF FEBRUARY 2021

assessment of whether the perpetrator was sexually stimulated or not. So how should ‘sexual abuse’ be identified as sexual? We can address the above challenges with a shift away from the sexual gratification of the perpetrator and focus instead on the experience of the victim. Did the victim experience the act as sexual? A victim centred approach is not a drastic shift from the definition used by Herron DCJ, and such an approach is readily open in the definitions used in Lawrence. Herron DCJ refers to the definition provided by Ben Mathews who, while including sexual gratification of the perpetrator in his definition, also states: “the acts are sexual (being contact or non-contact acts done to seek or obtain physical or mental sexual gratification, whether immediate or deferred in time or space, or otherwise legitimately experienced by the child as a sexual act)” (emphasis added).37 Placing the experience of the victim at the centre is a shift in emphasis with the potential for a powerful impact. The victim centred approach has the potential to include a wider range of sexual crimes, such as those addressed above, by allowing abuse to qualify as sexual either because it was sexual to the perpetrator or because it had a sexual impact on the victim. The victim centred approach assists by lessening the weight placed on the challenge of proving sexual stimulation. First, the sexual impact or experience of a victim does not face the same challenges of proof in a courtroom. Second, it reframes the relevance of sexual stimulation for the perpetrator in cases where it exists. In some cases, the perpetrators gratification may be what makes the victim’s experience of a crime sexual. This can be illustrated by a further statement of the Attorney General in the debates which relates to his own experience of corporal punishment at school: “It was not a Christian Brother who applied this corporal punishment; it was a married teacher, and he was laughing. It never occurred to me at the time that there was an element of sexual stimulation. By today’s laws, the application of 24 heavy straps to the hands of a year 9 child would be child abuse. Back then, corporal punishment of children was accepted in the community.”38 The Attorney General, as the person in the room with his teacher, being aware of the social norms at the time, and experiencing those acts, is the best placed to determine whether sexual gratification was a part of the motivation. It did not occur to him that it was, and he never experienced that act

as sexual abuse. However, there is no way to say that spanking never provides sexual gratification, the same situation with a different older man striking a different school child could amount to sexual abuse. Seeing the event through the victim’s eyes, by way of centring the experience of the victim, is a way to make the distinction between those two cases without reference to other reported instances of abuse by the same perpetrator. What is further beneficial about a victim centred approach is the voice it offers to victims. Sexual abuse, especially child sexual abuse, is born, by its very nature, of a vast imbalance of power. The judicial process seeks to return that balance in some way, and is powerfully placed to do so. Basing the definition on the perpetrators experience, stimulation or no, plays further into this power imbalance. The act of basing our definition on the experience of the victim lifts a voice and vests just a little of the power back to the victim. It also refocuses our view. In general, other civil claims or crimes do not require an element of gratification, nor is the existence of gratification given any weight. A robbery is robbery, even if not satisfying. The criminality is unaffected. Why? Because acts are criminalised, or civil remedies allowed, because these acts have a negative impact on a person or on society. Sexual abuse is complicated, but it is not distinguishable on this fundamental point. That impact, and experience, should not only be central in the case, but also to our definitions. The 2018 amendments to the CLA raise definitional questions that have been left to the Courts to determine. In so doing, the amendments present an opportunity for careful consideration of the definition of ‘sexual abuse’. Incorporating sexual gratification of the perpetrator into that definition as a requirement does not serve to cover all incidences of sexual offending, nor does it assist in differentiating ‘physical abuse’ from ‘sexual abuse’ with any clarity. The difficulties in proving sexual gratification introduce a challenge that does not serve the aim of removing the impediments to justice that exist for survivors of child sexual abuse, especially in cases where no previous incidences of sexual offending by the same perpetrator have been reported. A definition that places the experience of the victim at the centre would strengthen the definition by: lessening the weight given to prior reported abuse by the same perpetrator; covering a broader range of sexual offending; and mitigating the impact of

subjectivity and social assumption. Giving weight to the victim’s experience, and diverting focus away from the experience of the perpetrator, not only improves the definition of sexual abuse, but also lessens the vast imbalance of power that exists between victims and abusers in child sexual abuse matters. Endnotes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

16 17 18 19 20 21 22 23 24 25

26 27

28 29

30 31

32 33 34

35 36 37 38

Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27 [34(1)]. Above no. 1 [13.3], [23], [24]. Above no. 1 [13.3]. Explanatory Memorandum to the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill 2017 1. Above no. 1 [19(j)]. Above no. 1 [19(K)]. Above no. 1 [178]. Above no. 1 [179]. Above no. 1 [179]. Above no. 1 [33]. Above no. 1 [66], [82]. Above no. 1 [68]; Citing the Explanatory Memorandum to the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill 2017 3. Above no. 1 [89]. Above no. 1, at [84-89]; Citing Mathews B, New International Frontiers in Child Sexual Abuse: Theory, Problems and Progress (2019) 79-80. Above no. 1 [87]; Citing Western Australia, Parliamentary Debates, Legislative Assembly, 20 February 2018, 335 - 336 (Mr J R Quigley, Attorney General). Above no. 1 [99]-[102]. Above no. 1 [102]. Above no. 1 [90]-[93]. Above no. 1, [209]. Above no. 1, [217]. Above no. 1, [216]; see also Above no. 1 [99]. GMB v Uniting Care West [2020] WADC 165, [97] – [106]. GMB v Uniting Care West [2020] WADC 165, [100]. GMB v Uniting Care West [2020] WADC 165, [105]. See, for example, GMB v Uniting Care West [2020] WADC 165 at [91]-[96] in which evidentiary issues relating to the sexual gratification factor were raised by the defendant. Western Australia, Parliamentary Debates, Legislative Assembly, 20 February 2018, 335 - 336 (Mr J R Quigley, Attorney General). Above no. 1 [70]; Citing Western Australia, Parliamentary Debates, Legislative Assembly, 20 February 2018, 335 - 336 (Mr J R Quigley, Attorney General). Above no. 1 [85]; Citing Mathews B, New International Frontiers in Child Sexual Abuse: Theory, Problems and Progress (2019) 79-80. De Brouwer, Anne-Marie, Supranational Criminal Prosecutions of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR (2005), 13; Merry, Sally Engle, Gender Violence: A Cultural Perspective (2008), 166. De Brouwer, Anne-Marie, Supranational Criminal Prosecutions of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR (2005), 10. De Brouwer, Anne-Marie, Supranational Criminal Prosecutions of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR (2005), 66; See generally The Prosecutor v. JeanPaul Akayesu (Trial Judgement) ICTR 96 4 T (2 September 1998). De Brouwer, Anne-Marie, Supranational Criminal Prosecutions of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR (2005), 10. ActionAid, Hate crimes: The rise of ‘corrective’ rape in South Africa (2009), 3. David Smith, Life for Man in Rape and Killing of Lesbian South African Footballer (Sep 2009), <https://www. theguardian.com/world/2009/sep/22/eudy-simelanegangrape-and-murder>. ActionAid, Hate crimes: The rise of ‘corrective’ rape in South Africa (2009), 3. See GMB v Uniting Care West [2020] WADC 165 as an example of a case with a in which the alleged perpetrator is female. Above no. 1 at [85]; Citing Mathews B, New International Frontiers in Child Sexual Abuse: Theory, Problems and Progress (2019), page 79 - 80. Western Australia, Parliamentary Debates, Legislative Assembly, 20 February 2018, 335 - 336 (Mr J R Quigley, Attorney General).

EVENT WRAP UP

End of Year Celebration On Thursday, 10 December 2020, the Law Society was delighted to welcome over 160 guests to our End of Year Celebration. Law Society members, members of the judiciary and friends came together at the Metro Bar & Bistro to enjoy the festivities. On a warm evening, it was the perfect opportunity to catch up with colleagues, toast the year that was and share optimisms for the new year. Thank you to everyone who joined us for delicious food, drinks and great conversation in our final event for 2020. Thank you to our valued sponsors Glen McLeod Legal and McKenna & Associates Legal Recruitment, for their support. You can view more photographs from the evening at the Law Societyâ&#x20AC;&#x2122;s Facebook page: facebook.com/LawSocietyWA 40 | BRIEF FEBRUARY 2021

Sponsored by:

11 1.

Nick Van Hattem, President, The Law Society of Western Australia

Georgina Molloy, Consumer Credit Legal Service WA, Georgia Turco, Consumer Credit Legal Service WA, Gemma Mitchell, Consumer Credit Legal Service WA, David Ryan, Consumer Credit Legal Service WA, Tse Chee Loo, Corruption and Crime Commission

Sol Wright, Sceales Lawyers, Heidi Gan, Clifford Chance, Georgia Pickering, Law Access Limited

Matthew Plint, Plint Legal, Adam Ebell, Office of the Director of Public Prosecutions - State

Joseph McCormack, JDK Legal Services, David Bruns, Francis Burt Chambers, Craig Slater, Councillor, The Law Society of Western Australia, Anna Di Camillo, Thomas Moorhead, The Law Society of Western Australia

Glen McLeod, Glen McLeod Legal, Maryann Mattinson, Focused Legal

Taniea Sym, Curtin University, Monica Choi, Ashley Fan, Jackson McDonald

His Honour Judge Ron Birmingham QC, District Court of Western Australia, Alex Makore, Legal Practice Board, Victoria Branson, Stephen Browne Lawyers, Paul Evans, Quinn Emanuel Urquhart & Sullivan

Matthew Plint, Plint Legal, Hayley Cormann, Quayside Chambers, Her Honour Judge Charlotte Wallace, District Court of Western Australia, Adam Ebell, Office of the Director of Public Prosecutions - State

10. Rebecca Lee, Junior Vice President & Treasurer, The Law Society of Western Australia, His Honour Judge John Staude, District Court of Western Australia 11. Justin Wall, McKenna & Associates, Maryann McKenna, McKenna & Associates, Nick Van Hattem, President, The Law Society of Western Australia

2020 Practical Advocacy Weekend

The Law Society’s popular Practical Advocacy Weekend took place over 14 and 15 November at the Children’s Court of Western Australia. An enthusiastic group of 35 lawyers took part in the immersive twoday course, some new to advocacy and others keen to hone their skills. The weekend got off to an energetic start on the Saturday morning with vocal warmups, where participants got the chance to put the skills they learned during their pre-weekend session with professional voice and performance coach Julia Moody into practice. It was then time to get down to some scenario-based learning with our eager lawyers heading off to their assigned court rooms for the injunction applications, followed by cross examination of witnesses in a criminal trial and closing submissions. All exercises were recorded, and participants had the opportunity to receive advice and feedback on their performance from the coaches, made up of senior members of the legal profession. 42 | BRIEF FEBRUARY 2021

A productive Saturday concluded with refreshments and attendees were treated to a mini mock trial with inspiring closing addresses delivered by Her Honour Judge Troy Sweeney and Paul Yovich SC. On Sunday, delegates returned to the Children’s Court for another day of engaging and practical tasks including a second round of cross examinations and closing submissions where each participant had the opportunity to draw on feedback from the previous day. The weekend concluded with closing comments from Head Coach Paul Yovich SC and a collegial and relaxed group lunch providing participants the chance to reflect on the weekend’s learnings. Emma Lawton of Taylor Smart sums up her experience at the Practical Advocacy Weekend below:

“As a junior lawyer the Practical Advocacy Weekend provided the perfect opportunity to practise my advocacy skills in a friendly and collegiate environment. I found it to be a fun and engaging learning experience.

Over the course of the weekend there was a strong emphasis on professional development. The opportunity to receive constructive feedback from Judges and Counsel was truly invaluable. The exercises performed were recorded and I was able to see first-hand how simple things, like changes in posture and pace of speech, can make all the difference.” A special thanks to our esteemed coaches for their commitment and expertise; The Hon Justice Darren Jackson, The Hon Justice John Vaughan, Her Hon Judge Mara Barone SC, Her Hon Judge Troy Sweeney SC, The Hon John Chaney SC, Amanda Forrester SC and Patricia Cahill SC, led this year by Head Coaches Paul Yovich SC and Bill Keane, Francis Burt Chambers. Thank you to our YLC volunteers who dedicated their time to assist over the weekend.

020 2 n io it t e p m o C ll YLC Mixed Netba

On Friday, 20 November, over 110 keen lawyers hit the courts at UWA for the 2020 YLC Mixed Netball Competition. The popular sporting event is always a fun evening and this year did not disappoint with 12 teams battling it out over four fast-paced rounds, all eager to take home the trophy. Four teams gave it all they had and made it to the semi-finals, with Clayton Utz facing off against King & Wood Mallesons and HWL Ebsworth competing against The Policy Makers, a combined a-team representing a mix of small firms and the Law Society for a spot in the grand final. In the end it was first-time competitors HWL Ebsworth that went head-to-head with reigning champions Clayton Utz in a very close final game but for the third year in a row Clayton Utz proved they are unstoppable and claimed the top prize once again. It was a great evening with good vibes as participants enjoyed some well-earned wood-fired pizza after the games before heading off to Varsity Bar in Nedlands for some much-needed refreshments and for one team, some celebration. Thank you to everyone who took part in the competition and a special thanks to our YLC volunteers who came down to help on the night. Congratulations to this yearâ&#x20AC;&#x2122;s winners Clayton Utz! Will they ever be beaten? We will have to wait until next year to find out! 43

Mentoring Matters The Law Society’s Mentoring Programme for Junior Practitioners (1-5 years PAE) and Aboriginal and Torres Strait Islander Law Students has been available to members annually since 2008 and in 2021 will commence in March and run through until November 2021. This programme will be available to practitioners of all levels of practice post admission. Originally funded by 10 law firms, the Law Society in recent years has recognised the importance of mentoring and now funds the Programme as a member benefit. The programme had its largest intake of mentees in 2019/2020 and as a result the induction programme for mentees in 2021 will take place in smaller focus groups to allow for the optimal matching with mentors.

Is mentoring for me? Busy lives, heavy workloads, navigating the legal profession and making effective career decisions are common sentiments from prospective mentees. Yet one to two hours every four to six weeks with a mentor can provide welcome conversation, links to networks, and advice from someone that understands the highs and lows of the profession. Being matched with an independent legal professional supports career development discussions and professional development direction advice. The Programme ensures career direction can be safely discussed with an objective yet experienced practitioner. The range of issues can range from a difficult situation or general workplace query and the options for managing them can be discussed in an informal environment. Apart from career direction, the benefits of mentoring are numerous and range from increasing mentee’s confidence in practice competencies and potential, developing greater appreciation of the complexities of decisions to be made, providing opportunities to network, increasing understanding of a professional perspective – the norms, standards, values, ideology, history and politics of the profession. It may surprise you to hear that our mentors also talk of benefits in participating in the Programme. Comments range from providing exposure to fresh ideas, gaining personal satisfaction in teaching and sharing experiences and improving skills of counselling, listening, modelling and leadership as well as being informed of the issues confronting young practitioners in entering the profession at a time of rapid change.

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“It felt most rewarding to provide positive assistance to a young member of the profession taking the next step up in her career.” “Rewarding to help others’ plan, action and reach their goals.” “Remembering what it is like to be a junior; process assists me with my supervision of junior lawyers.” Some mentors have been with the Programme from its inception, some mentoring relationships extend way beyond the assigned programme and we have been delighted to have mentees return to the Programme in consecutive years to connect with another esteemed member of the profession. In the last five years the number of mentors has increased to reflect a broader cross section of the profession complementing the very experienced mentors that continue to participate in the Programme. The broader base of mentors, including senior women practising in the private and public sector, at the bar or as senior in-house counsel, provides the Programme with greater choice when pairing mentees and mentors and thereby enabling the Programme to address the increasingly changing legal environment. We are also seeing interest to be a mentor coming from practitioners who have transitioned from senior roles in law to senior executives, including chief executives and non-executive directors.

How does it work? Supported through the Advocacy and Professional Development team at the Law Society of Western Australia, the Programme utilises the services of an independent Coordinator, with a background in training, facilitation, mentoring and coaching. The Coordinator runs the annual introductory sessions for new mentors and mentees, takes time to get to know new participants and gauge interests for the Programme and works closely with the team to make suitable matches – mentee and mentor. The Coordinator keeps in touch with mentees throughout the Programme to ensure successful matches are sustained and provides regular reports to the Law Society through the relevant Committees and Council. Monitoring of the Programme by contact with participants aims to encourage mentees to discuss concerns with the Programme – “I find it difficult to set aside time” or “I lack confidence” and provide a consistent point of contact for mentors from one year to the next. The Coordinator speaks of the Programme as a truly rewarding experience, “The number of mentees and mentors who thank the Law Society for the privilege of being matched with their particular mentor/mentee is nothing short of astounding.”

Recent mentee feedback has included:

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“Joining the mentoring programme was one of the best career decisions I have made especially as a junior lawyer.” “It's nice to be able to talk to someone objective from within the legal industry about 'general' career matters.” “I signed up for the mentoring programme primarily so I could get an insight into life at the bar and advocacy work more generally. (My mentor) has provided me with very valuable insights into how he moved to the bar, what his practice involves, how he developed his advocacy skills and how the bar works more generally.” “(My mentor) helped me to clarify career aims/ objectives and helped me in breaking down some of the preconceptions I had about working in larger firms while also overcoming the trepidation I felt in looking for alternative jobs.”

Expressions of Interest must be received by the Law Society by 5.00pm on Friday, 19 February 2021. Please visit lawsocietywa.asn. au/careers-in-law/mentoringprogramme/ to complete an Expression of Interest form.

Lawyers and ‘alternative facts’ Gino Dal Pont Professor, Faculty of Law, University of Tasmania Ethics Column

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In an era of ‘alternative facts’, truth appears to have become a casualty.

other party or witnesses for which there is no sufficient basis in the information in his possession’.

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As officers of the court, lawyers must nonetheless not lend themselves to false or misleading conduct.

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This involves, inter alia, avoiding the making of serious allegations or aspersions without a proper evidential foundation.

There may be a tightrope a lawyer must walk in this context. A client may demand the making of those very aspersions, which, although justifiable in his or her own mind, may be difficult to substantiate. In the New Zealand case of Y v M5 a solicitor argued that he was justified in filing an affidavit in the Family Court attacking the reputation of the other party (in that case, involving allegations of child sexual abuse) without good cause solely upon the basis that the client instructed to that effect. The argument, which was rejected, was mounted on the uniqueness of Family Court proceedings, which are conducted in private and the paramount concern is the interests of the child. Reflecting the goal of truth-seeking, Temm J observed that ‘[i]t is just as important for the Family Court to be correctly informed as it is for any other court or tribunal, perhaps particularly so when the welfare of a child is at stake’.6

We appear to live in an era of ‘alternative facts’, where notions of what is, and what is not, true lie within the realm of the beholder. In the political arena, in particular, it seems that ‘the truth’ is capable of being twisted, massaged or even downright ignored. Even so, we remain seekers of truth, viewing it as a societal virtue. Recent high-profile defamation claims pursued by celebrities aggrieved by the media’s allegedly untrue imputations illustrate the point. More generally, discovery of the truth is foundational to our legal system. And what is punctuated by dishonesty or conduct that is otherwise misleading, we assume, cannot be consistent with (finding) the truth. It is no surprise that lawyers, in playing an integral role in legal processes, should be subject to stringent standards when it comes to truth-telling. Indeed, lawyer dishonesty or misleading conduct presents as a principal ground for severe disciplinary sanction.1 It stands to reason that lawyers cannot knowingly be parties to presenting false or misleading evidence. But aside from the spectre of perjury (and contempt), it is well established that participants in the curial process enjoy an immunity from liability, expressed by the High Court as follows:2 No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts. For lawyers, though, this does not translate to a blanket immunity from professional discipline. Evidently, making outright false statements comes within the disciplinary umbrella as noted above. But the spectre of discipline is more encompassing. Making an allegation or suggestion that cannot be substantiated by the evidence misaligns with the lawyer’s role in the administration of justice, which rests on, as an officer of the court, being engaged in ascertaining truth. While made explicit in professional rules,3 this point has long been acknowledged in the case law. In Rondel v Worsley,4 for instance, Lord Reid wrote that counsel ‘must not lend himself to casting aspersions on the

It is unsurprising, then, that attacking the reputation of another person without adequate foundation, including by alleging fraud or criminality, can expose a lawyer to disciplinary sanction. After all, as a Victorian judge has remarked, ‘[l]oose allegations of fraud are a blot on the adversarial system’.7 In a recent example, the respondent barrister, on the instructions of the wife in contested family law property proceedings, prepared and relied upon written submissions in which he alleged fraud and criminal conduct by the husband. The Queensland Civil and Administrative Tribunal found ‘scant basis for making allegations of impropriety against the husband, and no independent evidence to support the serious charges of criminality advanced’.8 As a result, the barrister was reprimanded for unsatisfactory professional conduct. In other nondisciplinary cases, the same type of behaviour may generate a personal costs order against the lawyer involved.9 The upshot is that lawyers’ role as officers of the court should not be utilised for the purposes of creating an unsupported alternate reality. NOTES: 1 2 3 4 5 6 7 8 9

See G E Dal Pont, Lawyer Discipline, LexisNexis Butterworths, Sydney, 2020, Ch 10. Cabassi v Vila (1940) 64 CLR 130 at 140 per Starke J. Legal Profession Conduct Rules 2010 (WA) r 36. [1969] 1 AC 191 at 227. [1994] 3 NZLR 581. Y v M [1994] 3 NZLR 581 at 589. NIML Ltd v MAN Financial Australia Ltd (No 2) [2004] VSC 510 at [6] per Harper J. Legal Services Commissioner v Wrenn [2020] QCAT 210 at [46]. See, for example, Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134.

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

Consumer Law Australian Consumer Law – statutory guarantees – unconscionable conduct – misleading or deceptive conduct

(3)

was repair; and unfairly obstructing the Consumers from obtaining a refund or replacement RV from the Jayco dealer that sold the RV, to which they were entitled under the ACL”.

In Australian Competition and Consumer Law v Jayco Corporation Pty Ltd [2020] FCA 1672 (20 November 2020) the Court determined the liability phase of an enforcement action brought by the applicant (the ACCC) against the respondent (Jayco Corp).

The ACCC also alleged that Jayco Corp made false or misleading representations to the Consumers as to their entitlement to a remedy, and as to Jayco Corp’s own role in relation to the Consumers’ rights or ability to obtain a replacement RV, or a refund of the purchase price.

Jayco Corp is a manufacturer of caravans, campervans, camper trailers and other recreational vehicles (the RVs). The ACCC alleged that Jayco Corp engaged in unconscionable conduct and misleading or deceptive conduct, and made false or misleading representations to four consumers (the Consumers) in relation to claimed defects in their RVs. The RVs were sold to the Consumers by Jayco dealers, which are companies and businesses independent of Jayco Corp.

Accordingly the main issues for determination were as follows (at [10]):

The conduct of Jayco Corp was alleged to have arisen in connection with claims by the Consumers that the RVs each bought had defects that entitled them to a refund of the purchase price, or replacement goods, pursuant to rights under the Australian Consumer Law (ACL). The issues in the proceeding concerned the interaction between Jayco Corp’s obligations under its warranty (the Jayco warranty), and the Consumers’ statutory entitlements under the ACL against the suppliers of the RVs. The ACCC alleged that Jayco Corp considered the Consumers’ claims about defects in their RVs against its obligations under the Jayco warranty rather than with full reference to the Consumers’ rights under the ACL, and thereby engaged in conduct that was unconscionable. In summary, the impugned conduct was as follows (at [5]): “(1) refusing to exercise its discretion under the Jayco warranty to provide a replacement RV; (2) pressing the position that the only remedy available to the Consumers

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“(1) Did the RVs have manufacturing defects that led to a failure to comply with a statutory guarantee that was to be characterised as a ‘major failure’ for the purposes of the ACL? (2) In consequence, were the Consumers entitled to reject the RVs and obtain a refund or a replacement RV? (3) Were the representations alleged by the ACCC made, and if so were they misleading or deceptive, or likely to mislead or deceive, or did they otherwise constitute false or misleading representations made in contravention of the ACL? (4) Was Jayco Corp’s conduct, in relation to the claims made by the four Consumers, to be characterised as unconscionable for the purposes of s21(1) of the ACL?”

The statutory guarantees Issues (1) and (2) involved a consideration of statutory guarantees under Part 3-2, Division 1 of the ACL, in particular the guarantees as to goods being of “acceptable quality” (s54), reasonably fit for a disclosed purpose (s55) and other express warranties (s59(1)). The Court considered the provisions providing for remedies between a consumer against a supplier (at [34]-[52]), a consumer against a manufacturer (at [53]-[55]) and a supplier against a manufacturer (at [56]). In respect of each of the Consumers, the Court made detailed findings about

the purchases, concerns and defects with and multiple repairs to their RV. This involved an assessment by the Court as to whether each RV would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure. In the circumstance of this case, this required the Court to consider whether many defects, all or most of which were individually repairable, collectively were such that a reasonable consumer’s level of tolerance was stretched to the point that the goods would not have been acquired (at [199], [379] and [500]). The Court held that three of the four RVs in question had manufacturing defects that resulted in a major failure to comply with a statutory guarantee (at [11], [196], [379] and [500]; cf [588]). Further, three of the four Consumers were entitled to reject their RV, and to obtain a refund or a replacement RV from the supplier, being the selling dealer. However that was not Jayco Corp, who was the manufacturer. The relevant Jayco dealers were not parties to the proceeding.

Alleged contraventions of ss18(1) and 29(1)(m) of the ACL The ACCC’s case that Jayco Corp engaged in misleading or deceptive conduct, and made false or misleading representations, towards the Consumers relied heavily on alleged oral statements, as well as some written statements. Wheelahan J referred to the well-known authorities about the difficulties of proof of words alleged to have been spoken (at [604]-[606]). Ultimately, the Court held that only one of the various alleged representations made by an employee of Jayco Corp to only one of the Consumers was made in contravention of ss18 and 29(1)(m) of the ACL. That was a representation in an email to Consumer RH (at [533], [652] and [861]). Wheelahan J held that the email contained a representation that was misleading or deceptive, and was false or misleading, because “it conveyed that the only remedy to which Consumer RH could ever be entitled was repair, because that was the claimed effect of the Jayco warranty. This was not the case

because the Jayco warranty did not affect the rights of a consumer under the ACL” (at [649]). However, the Court rejected the other alleged contraventions of ss18(1) and 29(1)(m) of the ACL in relation to this consumer and the other three consumers (at [617]-[620], [627]-[640] and [643][644]).

Alleged contraventions of s21 of the ACL While there were some common components of the ACCC’s case in relation to the four Consumers, the ACCC did not allege that Jayco Corp engaged in a system of conduct or a pattern of behaviour (at [3] and [790]). The Court set out a summary of the main appellate authorities on the operation of s21 of the ACL and the analogous provisions in the Australian Securities and Investments Commission Act 2001 (Cth) (at [654]-[683]). Further, Wheelahan J discussed features of the statutory matrix of rights and obligations under the ACL between consumers, suppliers and manufacturers which was relevant to an evaluation of conduct of Jayco Corp alleged by the ACCC (at [712]-[725]). The Court held that Jayco Corp’s conduct in relation to the claims made by the four Consumers was not to be characterised as unconscionable for the purposes of s21(1) of the ACL (at [11] and [797]-[857]). The Court rejected central elements of the ACCC’s case. In particular, Wheelahan J explained that the ACCC’s case failed for

three principal reason: (1) The first was the rejection of the ACCC’s claim that Jayco Corp required its dealers to obtain its approval before agreeing to replace an RV, or to refund the purchase price pursuant to an obligation under the ACL to do so (at [794][795] and [858]). (2) The second reason related to the close attention to all the factual circumstances that is required by the judicial technique referred to in Jenyns v Public Curator (Qld) (1953) 90 CLR 113 at 118. The Court explained at [859]: “That technique required that regard be had to the information that the relevant employees of Jayco Corp possessed at the material times in relation to each individual Consumer’s RV, and to the evaluation of Jayco Corp’s conduct in the circumstances existing at the material times having regard to that information. When close attention was given to Jayco Corp’s conduct in this way, it was clear that the conduct could not be characterised as unconscionable”. (3) The third reason, which was said to probably be the most important reason, concerned the statutory framework of rights and liabilities established by the ACL in relation to the supply of goods and services. Wheelahan J said at [860]: “. . . But standing back, one of the difficulties that the ACCC’s claim

faced was that it was tantamount to alleging that Jayco Corp was required to assume a direct liability to a consumer to replace goods as if it were the de facto supplier of the goods, in circumstances where the legislation made the supplier so liable. The legislation then had the effect of establishing a commercial setting in which the supplier and the manufacturer might then work out between themselves how the consequential burden of that liability to the consumer would ultimately be borne. Good conscience did not require that Jayco Corp accept additional direct liabilities to consumers which were otherwise not supported by the legislative scheme”.

Next steps There is to be hearing on relief (including any penalty for the single contravention of s29(1)(m) of the ACL) and costs on 3 May 2021. Following final orders at first instance, it will be interesting to see if the ACCC appeals to the Full Court about the dismissal of its case for unconscionable conduct under s21 of the ACL.

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.

HIGH COURT JUDGMENTS Dr Michelle Sharpe Castan Chambers, Melbourne

Real Property Torrens system In Deguisa v Lynn [2020] HCA 39 (4 November 2020) the High Court was required to consider whether the registered proprietors of a property had notice of, and were bound by, certain restrictive covenants in a common building scheme. The issue lies at the heart of the operation, and purpose, of the Torrens system of land. The Torrens system is a matter of great pride for every South Australian property lawyer (and this South Australian born writer). Robert Torrens, an Irish immigrant who settled in South Australia, pioneered the system that bears his name – a system of land title by registration. The Torrens system is distinguished by a state guarantee that the certificate of title, produced by it, contains an accurate and comprehensive statement of the state of the title to that land. A person interested in a parcel of land need only look to the certificate of title, and the interests notified on it, to ensure that his or her dealing with the property does not miscarry. The Torrens system brought order to chaos and came to be adopted across Australia and even overseas by several countries. Fittingly, the facts in this case also took place in South Australia. In 2008 the appellants became the registered proprietors of a property on Henley Beach Road in Fulham (Fulham Property). They later successfully applied for planning approval to subdivide the Fulham Property into two lots and build two townhouses. The first and second respondents were the daughters of the original owner of a large parcel of land, Betty Fielder, which was subsequently subdivided into 54 smaller parcels of land and sold, in the mid-1960s, to a common building scheme. The Fulham Property was one such parcel of land (and had two previous owners prior to the appellants). The third respondent was the registered proprietor of two other parcels of land in the common building scheme. The respondents argued that the appellants were restrained by the

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restrictive covenants in the common building scheme from building multiple dwellings on the Fulham Property. The appellants relied on s69 of the Real Property Act 1886 (SA) (RPA) which relevantly provides: “The title of every registered proprietor of land, shall subject to such encumbrances, liens, estates, or interests as may be notified on the certificate of title of such land, be absolute and indefeasible . . .” The appellants argued that they had no notice of and, as such, were not bound by the restrictive covenants in the common building scheme. Although there is no provision in the RPA for the registration of a common building scheme, the respondents argued that the appellants did have sufficient notice of the restrictive covenant and were bound. The respondents pointed to the notation on the certificate of title to the Fulham Property which read (under the heading “Schedule of Dealings”) “Dealing Number / 265722” and “Description / ENCUMBRANCE TO KEITH OLIVER AYTON AND BETTY JOAN FIELDER AS JOINT TENANTS”. A Memorandum of Encumbrance was filed by land broker A & HF Gaetjens Pty Ltd which stated “This encumbrance forms portion of a common building scheme”. All 54 lots, subject to the common building scheme, were depicted on a document described as the “Gaetjens Plan”. The Gaetjens Plan was not available on a search of the Lands Titles Office. Instead, it was found by one of the respondents after searching through Ms Fielder’s personal items after her death. The certificates of title issued for each of the 54 lots was also recorded on the “grandparent” certificate of title for the original large parcel of land. At first instance the primary judge found in favour of the respondents. The primary judge considered that the respondents did have standing to issue proceedings in their capacity as caveators to enforce the caveats. The primary judge also considered that the notation on the certificate of title to the Fulham Property gave the appellants sufficient notice and that the appellants should then have made further searches to ascertain the nature and extent of the common building scheme. The primary judge

held that the restrictive covenants were binding on the appellants as part of the common building scheme with respect to the 52 allotments on the Gaetjens Plan (which didn’t include two further, subsequent, allotments). The appellants appealed unsuccessfully to the Full Court of the Supreme Court of South Australia. Peek J (with whom Hughes J agreed) considered that the “governing principle” was stated by Windeyer J in Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73 (Bursill) at 93 as “What is ‘notified’ to the prospective purchaser by the vendor’s certificate of title is everything that would have come to his or her knowledge if a prudent conveyancer had made such searches as ought reasonably to have been made by him as a result of what appears on that certificate of title”. Peek J asserted that the appellants, having inspected the Memorandum of Encumbrance referred to in the certificate of title for the Fulham Property, would have been put on notice of the possible existence of a common building scheme and a prudent conveyancer would have conducted a search to identify other lots with mutually enforceable covenants. Kourakis CJ, in dissent, considered that the appellants were not notified because, he reasoned (referring to the reasons of Windeyer J and Barwick CJ in Bursill), that s69 of the RPA did not contemplate a search for other certificates of title not referred to in the Memorandum of Encumbrance. The appellants appealed again and, this time, were successful. The High Court unanimously allowed the appeal and, in a joint judgment, favoured the reasoning of Kourakis CJ in the Full Cout decision. The High Court noted at [53] that the facts in Bursill concerned the misdescription of rights said to have been granted under “Transfer No 7922”. And, at [54], that both Barwick QC and Windeyer J held that the purchaser was, nonetheless, sufficiently notified of the effect of Transfer No. 7922 because the true effect of transfer was immediately apparent on reading the instrument. The High Court at [55] and [59] cited passages from the reasons of both

Barwick CJ and Windeyer J in which each judge expressed the view that it was incumbent on the purchaser to search for and inspect the registered dealing. The High Court considered at [56] and [60] that, in expressing such views, what their Honours both meant was that it was incumbent on the purchaser to search for, and inspect only those registered instruments notified on the certificate of title. The High Court observed at [66]-[71] that this reading of Bursill is consistent with the approach taken by the court in the subsequent decision of Westpac Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528 (Westpac) which approved of the reasons of both Barwick QC and Windeyer J in Bursill. The Court in Westpac accepted that, consistent with the objects of the Torrens system, only instruments notified by entry or memorial on the certificate of title are sufficiently notified on the certificate of title to defeat the otherwise unqualified title of the registered proprietor. The High Court, in the present case, reasoned at [72] that, consistent with the objects of the RPA, it would be necessary to have all of the lots benefiting from a restrictive covenant, in a common building scheme, identified on a certificate of title: “Such identification ensures that a potential purchaser is able to make fully informed decisions in relation to the concerned land”. It follows

that the High Court concluded at [73]-[87] that the appellants were not notified and so were not bound by the restrictive covenants in the common building scheme.

Criminal practice Directions to jury In GBF v The Queen [2020] HCA 40 (4 November 2020) the High Court was required to determine whether a trial judge had misdirected a jury by instructing the jury to “bear in mind that [the complainant] gave evidence and there is no evidence, no sworn evidence, by the defendant to the contrary of her account. That may make it easier” (the impugned statement). The defendant had been charged with seven counts of sexual offences against the complainant, the defendant’s halfsister. The conduct was said to have occurred in the period 1 December 2012 to 24 August 2013 when the defendant was 33 and 34 years of age and the complainant was just 13 and 14 years of age. The jury found the defendant guilty of all but two of the charges. The defendant unsuccessfully appealed to the Queensland Court of Appeal. Boddice J, in the leading judgment, recognised that the impugned statement conveyed

a suggestion that the jury were entitled to, but deprived of, the defendant’s testimony. But Boddice J concluded there was no real possibility that the jury misunderstood the trial judge’s directions given that earlier, before making the impugned statement, the trial judge had given specific directions as to the presumption of innocence and neither counsel had made an application for any redirection at the time. The High Court unanimously overturned the Court of Appeal’s decision finding that the trial judge’s direction was an irregularity amounting to a miscarriage of justice. In a single set of reasons, spanning 27 short paragraphs, the High Court ruled that, just as in Azzopardi v The Queen (2001) 205 CLR 50, the trial judge’s impugned statement contradicted his earlier direction on the onus of proof and invited the jury to engage in a similar false process of reasoning.

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

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

Property – High Court sets aside stay order – Full Court misapplied res judicata and Anshun estoppel In Clayton v Bant [2020] HCA 44 (2 December 2020) the High Court (Keifel CJ, Bell, Gageler, Gordon & Edelman JJ) allowed with costs an appeal where the Full Court permanently stayed a wife’s application for property and spousal maintenance as she had failed to contest divorce proceedings in Dubai. A citizen of the United Arab Emirates, the husband issued divorce proceedings in Dubai in 2014. The wife did not appear, such that a Dubai court granted the husband an “irrevocable fault based divorce” ([8]) and ordered the wife to repay an amount of an advanced dowry and costs. The husband then sought a permanent stay of the wife’s property and spousal maintenance proceedings in the Family Court of Australia, arguing res judicata. Although unsuccessful at first instance, the Full Court stayed the proceedings, finding that the Dubai proceedings had determined the same cause of action and the wife’s failure to pursue her claim in Dubai meant she was estopped from pursing a spousal maintenance claim in the Family Court. The majority of the High Court (Kiefel CJ, Bell and Gageler JJ) said (at [26]): “Once it is appreciated that the rights in issue in the property settlement proceedings and in the spousal maintenance proceedings are the statutory rights of the wife to seek orders under 50 | BRIEF FEBRUARY 2021

ss 79(1) and 74(1) of the Act, it is apparent that the ruling made by the Dubai Court cannot give rise to a res judicata in the strict sense in which that term continues to be used in Australia. The rights created by ss 79(1) and 74(1) cannot ‘merge’ in any judicial orders other than final orders of a court having jurisdiction under the … The rights of the wife to seek orders under ss 79(1) and 74(1) continue to have separate existence unless and until the powers to make those orders are exercised on a final basis and thereby exhausted.”

Costs – Husband wins appeal of costs order – Wife’s settlement offer did not conclude all matters in issue In Paradin [2020] FamCAFC 245 (7 October 2020) Strickland J, sitting in the appellate jurisdiction of the Family Court of Australia, set aside an order that the husband pay the wife’s costs of $62,000. The wife, sought an interim release for $40,000, a child support departure order and spousal maintenance of $600 per week; and sent a settlement offer to the husband titled “property matters” where she proposed a transfer and refinance of properties and a payment to her of $40,000. At trial, the wife’s applications for child support and spousal maintenance were dismissed, but she was to receive a cash adjustment of $146,672, which primarily formed the basis of the subsequent costs order against the husband.

On appeal, the husband argued that the wife’s offer could not have been reasonably accepted by him at the time, particularly where the offer was silent as to the child support and spousal maintenance issues. Strickland J said (from [33]): “There is ample authority to the effect that an offer must be expressed ‘with precision’ and ‘in terms which are objectively capable of being clearly understood’ (Harris and Harris [1987] FamCA 7) ( …) [40] The proceedings had only commenced on 26 October 2017, and the wife, both at that time, and when she filed her Amended Initiating Application at the same time as the offer … was unable to identify for the court the order for property settlement she was seeking. (…) [57] … I am reminded … of what the Full Court said in Pennisi [ed. full citation: Pennisi & Pennisi [1997] FamCA 39], namely, it is critical to consider the context in which an offer is made … And, as was said by the Full Court in Cross & Beaumont [2008] FamCAFC 68 … at [51] that context can be that ‘[i]f the recipient of the offer is demonstrably unable to comply with his or her obligations under the proposed settlement, it is difficult to see how the offer could be relied upon in support of an application for costs’.”

Children – Single expert – General child and family psychiatrist preferred over specialist perinatal psychiatrist

In Lambard & Lambard and Ors (No. 2) [2020] FamCA 858 (14 October 2020) McClelland DCJ considered a disagreement over the appointment of a single expert psychiatrist where the proceedings concerned the parties’ 19 month old daughter. Post-birth, the mother suffered an acute mental health episode which resulted in her attempting to take her own life and then while hospitalised, she sustained further injuries which resulted in her being confined to a wheelchair ([5]). The mother contended that any mental health concerns had been treated and were in remission, the father contending that the mother’s behaviour pre- and post-birth presented concerns as to the mother’s parental capacity and posed an ongoing risk to the child. Where the parties agreed that a single expert psychiatrist should be appointed, the Court was asked to determine whether such expert should be the specialist perinatal psychiatrist sought by the mother and maternal grandmother or any of the three general psychiatrists sought by the father and the paternal grandmother. The Court said (from [26]): [26] Having regard to the … issues, it can be seen that the postnatal aspect of the mother’s mental health is but one aspect of many issues to be considered …. It may be that a psychiatrist with specialty in perinatal psychiatry may not necessarily have expertise in respect to other potential issues including, for instance, the post-traumatic consequences of the mother’s attempted suicide and ongoing injuries and disabilities. ( … ) [34] … I am of the view that the appointment of a single expert from among the list of names of the three qualified psychiatrists proposed by the father and paternal grandmother is the appropriate course of action to pursue in this matter. That is despite the fact that it is

acknowledged that none of those three psychiatrists are specialists in perinatal psychiatry. … [I] am satisfied that they each have the required training, study and experience that qualifies them as having specialised knowledge on the issue of the mother’s mental health and to provide a prognosis in respect to that issue.”

Property – Wife fails in her attempt to have a related company pay partial property settlement In Russo and Russo & Ors [2020] FCWA 182 (15 October 2020) O’Brien J dismissed a wife’s interim application for an order that third parties make payments totalling $1.1 million to enable her to fund her litigation costs and purchase a property. The second respondent, Company A, was the trustee of Trust A. The husband and his parents were directors of Company A. The husband and his parents were shareholders of the third respondent, Company B, which operated a business on a farm of which the husband’s parents were the registered proprietors. Company B paid Company A rent for the use of farming land, such funds forming the majority of Company A’s income. The rental paid was highly inflated with the intention to quickly reduce Company A’s indebtedness. The wife deposed that Company A owed the husband and wife’s family trust $5,517,696. The wife sought payment of $1.1 million from Company A to the family trust. She also sought that Company B continue to pay the inflated rent. The Court said (from [75]): “The application of the broad terms of s 90AE(2) is expressly limited by the conditions in s 90AE(3), and by reference s 90AE(4).

[77] The limitation … in s 90AE(3)(a) … requires the court to be satisfied that the making of the order is either reasonably necessary to effect a division of property between the parties to the marriage, or reasonably appropriate and adapted ( … )” The Court continued (from [142]): “The … difficult question is whether an order made on an interim basis can properly be said to be reasonably necessary, or … appropriate and adapted, to ‘effect a division of property between the parties to the marriage’. [143] The power under s 79, … is to make orders ‘altering the interests of the parties to the marriage’ in property; … ‘division of property’ is not used. [144] An interim order made pursuant to s 79 must be capable of variation or reversal without resort to s 79A or an appeal, … Gabel & Yardley [2008] FamCAFC 162 ( … ) The Court concluded (at [198]): “… [T]he order … may only be made if it is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; on the wife’s own case, the order is sought for the purpose of increasing the property … The distinction is … fatal to this aspect of the wife’s application (B Pty Ltd & Ors & K and Anor [2008] FamCAFC 113).”

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.

[76] The limitations … in s 90AE(3)(b) and (c) are selfexplanatory …

WA Case Notes By Tom Lettenmaier Solicitor

Patrick Stevedores Holdings Pty Ltd v CFMMEU (No 2) [2020] FCA 1093 Justice Lee has reiterated that lawyers must exercise “imagination and lateral thinking”.1 Patrick Stevedores Holdings Pty Ltd v CFMMEU (No 2) concerned a dispute between Patrick Stevedores and QUBE Logistics2 (for convenience both applicants will be referred to as Patrick) and the Construction, Forestry, Maritime, Mining and Energy Union. In Patrick Stevedores Holdings Pty Ltd v CFMMEU,3 Lee J upheld the Patrick’s claim that the Union had engaged in unprotected industrial action. Given that liability had been determined, the next step was to determine the quantum of compensation and any pecuniary penalties. However, the relief sought by Patrick was “bewildering and complex”, relating to the loss they had suffered operating a waterfront freight terminal during the unprotected industrial action (at [16]). It became apparent that quantum and penalty would require the resolution of a significant number of factual issues and any hearing was likely to exceed one week. The Court’s caseload meant that any hearing would not occur until late 2021.4 On that basis, Lee J proposed to refer the matter to an external referee, however, the Union objected on the basis that they would:

(being the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible) should be taken into account in deciding whether to make the referral.6 In particular, his Honour considered the following factors: “(a) the just determination of all proceedings before the Court (s 37M(2)(a)) (Justice Factor); (b) the efficient use of the judicial and administrative resources available for the purposes of the Court, and the efficient disposal of the Court’s overall caseload (ss 37M(2)(b) to (c)) (Efficiency Factor); (c) the disposal of the proceedings in a timely manner (s 37M(2)(d) (Timeliness Factor); and (d) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute (s 37M(2)(e)) (Cost-effectiveness Factor).”

The Union argued that because they had filed expert evidence specifying deficiencies in Patrick’s evidence and that they failed to quantify any loss, Patrick would be able to use the referral process to “fill in the gaps” identified in their case, and that they would lose their right to make hearsay objections to Patrick’s evidence if there was a referral (at [20]-[21] and [26]).

Justice Lee reiterated7 that the Efficiency Factor would be well served by the profession if they gave increased attention to the use of external referees (at [11]). And that such a course was consistent with their obligation to conduct their client’s proceedings in a manner consistent with the overarching purpose.8 His Honour then commented that there seemed to be resistance to referrals, notwithstanding repeated calls by the Court, including from the Chief Justice. Justice Lee stated that whilst referrals had been common in New South Wales, they had been rarely ordered in other jurisdictions, unless by consent. Commenting that such a state of affairs should be in the past, repeating the then Chief Justice of New South Wales Gleeson CJ’s comments (made nearly 30 years ago), that parties were not entitled to have a judge decide all issues of fact and law that arise in any litigation (at [11]).9 Ultimately, Lee J, found that no litigation was immune from consideration of whether a referral could be appropriate. However, it was relevant that Fair Work matters were generally a “no cost” jurisdiction.10

Justice Lee, referring to his previous decision, Kadam v MiiResorts Group I Pty Ltd (No 4),5 considered that the “overarching purpose” of civil litigation

His Honour commented that there was little scope to argue that the Timeliness, Efficiency, and Cost-Effectiveness Factors could weigh against the referral given the

•

suffer a forensic disadvantage (Forensic Argument); and

•

be deprived of the ability to exclude various aspects of affidavit evidence filed by Patrick (Hearsay Argument).

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length of the hearing and that it would have to be in late 2021 (at [13]). Further, the disadvantage of the costs associated with the referral was outweighed by the fact that proceeding to a hearing would likely cost substantially more. In relation to the Forensic Argument, Lee J considered that it had a superficial attraction but ultimately making procedural orders to constrain “gapfilling” would ameliorate any concerns (at [21]-[25]). Similarly, Lee J considered the Hearsay Argument had limited merit. This was because if the matter did proceed to a hearing, then any objections would have been dealt with in advance, and an opportunity provided to Patrick to cure any defects. Justice Lee commented that it was long past that litigation could be thought of as a game where, subject to procedural fairness, technical evidentiary points would prevent a valid claim from being made out (at [26]). Further, given that the rule against hearsay evidence was predicated on such evidence being unreliable, there would be no doubt the referee would consider such matters in regards to their assessment of the weight to be given to any evidence (at [26[-[27]). Accordingly, Lee J concluded that it was appropriate to make the referral (at [28]). Overall, the decision provides insight into the ever increasing need to consider the “overarching purpose” of civil litigation, and the scope for the Court’s rules and enabling legislation to facilitate “imaginative and lateral thinking”. https://www.judgments.fedcourt. gov.au/judgments/Judgments/fca/ single/2020/2020fca1093 Endnotes 1

2 3 4 5 6 7 8 9

See: Justice Lee, ‘Case Management & Insolvency: Matching Rhetoric & Reality’ Key Note Speech at the Association of Independent Insolvency Practitioners Annual Conference, 28 June 2019. In two separate proceedings heard together. [2019] FCA 451 Patrick Stevedores Holdings Pty Ltd v CFMMEU (No 2) [2020] FCA 1093 at [6] 2017] FCA 1139; (2017) 252 FCR 298 at [57]-[58] Federal Court of Australia Act 1976 s 37M(1) See Kadam v MiiResorts Group I Pty Ltd (No 4) [2017] FCA 1139; (2017) 252 FCR 298 at [4]-[5] Federal Court of Australia Act 1976, s 37N See Seehan v Lloyds Names Munich Re Syndicate Ltd [2017] FCA 1340; (2017) 19 ANZ Ins Cas 62-158 at 76,024; Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 at 558 Fair Work Act 2009 (Cth) s 570

WA Case Notes By Dianne Caruso Senior Associate, HHG Legal Group

Case Note by Dianne Caruso of HHG Legal Group – Molloy & Foust [2020] FCWAM 66 In this decision, his Honour Magistrate Glass sentenced the Respondent to 18 months imprisonment as a result of two contempts of Court admitted to by the Respondent in property settlement proceedings. The two contempts were as follows: 1. An Order was made restraining the Respondent from alienating, encumbering or otherwise disposing of a property. He subsequently entered into a contract for sale of the property and transferred it to an unrelated third party. 2. An Order was subsequently made for the Respondent to deposit the sale proceeds from the sale of the property into the Applicant’s solicitors’ trust account. The Respondent failed to do so. The Respondent proceeded to dispose of over $450,000 in cash and $200,000 worth of diamonds. His evidence was that he owed an underground gambling syndicate over $500,000 and that he had been charged $100,000 in interest by that syndicate. The Court found that there were inconsistencies in the Respondent’s evidence as to the disposition of assets, and any excuses for the inconsistencies lacked credibility. In rejecting the Respondent’s evidence as to the disposition, the Court did not accept his purported motive for contempt. The Court instead accepted the Applicant’s submission that it was more likely his course of contemptuous conduct was intended to defeat her claim for property settlement. In addition, the Court found that the contempts of Court had the effect of substantially defeating the Applicant’s overall claim for property settlement. If the Applicant were to retain all of the parties’ non-superannuation assets they would have had a value of approximately $129,000, rather than the amount claimed by her of approximately $552,000. Having found the two contempts, the

issue for determination by the Court was what was the appropriate punishment. The Court stated at paragraph 3: “Part XIIIB of the Family Law Act 1975 (Cth) is a complete code and state and federal sentencing law has no application. It affords the Court the widest possible discretion to mould the sanction to the circumstances of the individual situation within the overall principles and philosophy of the Family Law Act”. The Court then referred to the Full Court decision of Abduramanoski & Abduramanoska (2005) FLC 93-215 which considered the following criteria to be of potential relevance in determining punishment for contempt of an order involving property or fiscal provisions: (i) the seriousness of the contempt proved; (ii) whether the contemnor was aware of the consequences to himself of what he proposed to do; (iii) the actual or potential consequences of the contempt on the proceedings in which the contempt was committed; (iv) whether the contempt was committed in the context of a proceeding alleging crime or conduct seriously prejudicial to the public interest: see, for example, Von Doussa v Owens (No 3) (1982) 31 SASR 116; (v) the reason or motive for the contempt; (vi) whether the contemnor has received, or sought to receive, a benefit or gain from the contempt; (vii) whether there has been any expression of genuine contrition by the contemnor; (viii) the character and antecedents of the contemnor; (ix) what punishment is required to deter the contemnor and others of like mind from similar disobedience to the orders of the Court; (x) what punishment is required to express the Court’s denunciation of the contempt.

In considering whether a term of imprisonment was appropriate the Court cited the Full Court decision of Tate & Tate (No 3) (2003) FLC 93-138 at paragraph 57, as well as Borrie and Lowe The Law of Contempt (3rd Ed) in which the following principle is stated: “Blatant and aggravated contempts particularly when repeated by a person who has clearly been warned as to the possible consequences of defying an order, will quite properly attract an immediate custodial sentence as a mark both of the gravity of the contempt and the court›s disapproval and to deter contemnors and others who might be tempted to breach such an order.” The Court held at paragraphs 41 and 42: 41 [The Respondent] has engaged in a course of conduct both in defiance of Court orders and comprising a flagrant challenge to the Court’s authority. That course of conduct involved multiple transactions over a period of several months. I have rejected his evidence of the purported reason for doing so. He was made aware at Court appearances in May and June 2020 of the possibility of imprisonment should he be found to be in contempt. Those warnings did nothing to modify his contemptuous behaviour and did not result in the desired coercion. 42 I consider that neither a fine, nor a suspended term of imprisonment, appropriately reflects the objects of coercion and punishment. Although a sanction of last resort, I consider there to be no alternative but to sentence [the Respondent] to a period of immediate imprisonment.” The Court accepted that an indefinite period of imprisonment was however too severe and sentenced the Respondent to 18 months imprisonment. The Court retained a discretion to discharge the sentence including if the Respondent purged his contempt.

The Tale of the boy Who Was Stolen By John McKechnie QC

The Rev John West was a formidable force for good in 19th century Australia. The Rev John West was a formidable force for good in 19th century Australia. Born in England in 1809, at the age of 20 he was ordained as a Congregational minister and sent to Launceston with his young family as a missionary. He helped found a newspaper, a school, a mechanics institute as well as being an active preacher. He even wrote a history of Tasmania. But his real passion was a campaign to abolish transportation to Tasmania. The movement spread to the mainland and John West was at the forefront. In 1854 he accepted an invitation from his friend and fellow abolitionist, John Fairfax, to become Editor of the Sydney Morning Herald. This enhanced, rather than diminished his zeal for righteous causes. And so he came to hear of the plight of Tommy, an aboriginal boy. Discovering that Tommy was in the custody of a squatter, Alexander Collins, and sceptical of the circumstances, Rev West applied for a writ of habeas corpus, calling on Mr Collins to produce Tommy to the court. Habeas Corpus is an ancient remedy dating from the reign of Henry II and is still available. An application for a writ of habeas corpus was so serious that a court would set aside all other business to deal with it promptly. Mr Collins complied with the writ and produced Tommy to the court. He told the court that Tommy was in his care with his

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father’s consent and of his own free will. But he had told another story to Mr Barber who swore an affidavit. Mr Collins said he had stolen Tommy from his parents and that he would never see his tribe again. Chief Justice Stephen was scathing. In words that should have been emblazoned in every public institution: “It might be admitted that the boy had been kindly treated but no end could justify an act such as was alleged to have been committed. It was a moral wrong – an outrage – an act of gross cruelty which no man of common feeling could hear described without an expression of strong indignation. It was not a light matter, but the infliction of an insufferable wrong… These people were British subjects and if held responsible for crime on one hand, should be protected from outrage on the other” Instead, those words were soon forgotten and in due course governments across Australia began removing children from their parents, oft times by stealth. Not until one of Western Australia’s finest jurists, Sir Ronald Wilson, as President of the HREOC released “Bringing them Home” in 1997, did the true effects of the programme of removal enter the collective conscience. Sir Ronald was the first President of the Uniting Church in Australia, a union that included the Congregationists. The Rev John West would have been proud. (Adapted from Ex Parte West [1861] NSWLeggeSC 32)

Law Council Update Release of National Action Plan to Reduce Sexual Harassment in the Australian Legal Profession Eliminating sexual harassment in the legal profession is part of the Law Council’s long-running commitment to inclusion and diversity in the legal profession. Today’s release of the National Action Plan to Reduce Sexual Harassment in the Australian Legal Profession (NAP) heralds the start of a united and coordinated process to address the issue. Law Council President, Pauline Wright said that the NAP is aimed at addressing the regulatory and cultural change factors necessary to facilitate better experiences for legal professionals. “Sexual harassment is unacceptable in the legal profession and the Law Council and its Constituent Bodies are committed to its elimination,” Ms Wright said. “One way of achieving this, is to outline specific law reform proposals as policy positions of the Law Council. “The NAP also includes measures that the legal profession can implement to drive cultural change,” Ms Wright said. Recommendations include: • Advocating for federal law reform amendments to the Sex Discrimination Act 1984 (Cth) (SDA). • Supporting the work of the Australian Human Rights Commission, particularly in relation to the establishment of a Workplace Sexual Harassment Council, amending the SDA, the harmonisation of federal and state and territory discrimination laws; and the establishment of education and training programs for judicial officers and tribunal members. • Driving cultural change in the legal profession through a proposed reformulation of Rule 42 of the Australian Solicitors’ Conduct Rules; the development of national model sexual harassment policy and guidelines and a centralised source of information and suite of educational tools; the facilitation of a 56 | BRIEF FEBRUARY 2021

consistent complaints process; the consideration of bystander provisions; and supporting those who have experienced sexual harassment. • Advocating for the establishment of a Federal Judicial Commission. “The NAP and the measures proposed will not solve every problem relevant to sexual harassment,” Ms Wright said. “It is important to note that this is a living document, setting out a framework for change, the specifics of which will continue to evolve as each measure is developed. “The NAP is just the start of a united and coordinated process that will continue to be reviewed and refined as the measures are developed and implemented in consultation with the Law Council’s Constituent Bodies.

Human Rights Day: Isn’t it time to reconsider our mandatory, long-term immigration detention regime? On International Human Rights Day, the Law Council of Australia is calling on government to reassess its mandatory, indefinite detention of non-citizens who do not hold a valid visa. This policy, originally intended as a temporary and exceptional measure, has now been in place for decades and has resulted in prolonged periods of detention for far too many individuals who do not pose a risk to community health or safety. Law Council President, Pauline Wright, says that such detention is arbitrary and contrary to Australia’s international human rights obligations. “The recent release of the Australian Human Rights Commission’s (AHRC’s) Inspections of Australia’s immigration detention facilities report has provided a stark reminder of the harms associated with Australia’s closed immigration detention regime,” Ms Wright said. “While in many respects, Australia is a healthy, functioning democracy which embeds respect for the rule of law, there are key areas in which successive

Australian governments have failed to make progress on realising human rights – with its record even worsening, rather than improving, over time. “Australia’s offshore processing regime for asylum seekers who arrive by boat also breaches international human rights and refugee law norms,” Ms Wright said. “The Law Council considers that such deprivation of liberty should not be considered routine and detention of people outside the criminal justice system should not be normalised. “Australia needs to ensure international human rights and refugee law principles are fully observed, including using detention only as a last resort and for the minimum possible time. Australia must further establish long-term, durable solutions for all refugees, including those in offshore processing and those within its territory. “The AHRC’s report disclosed that in 2019, the average period that an individual was held in Australian immigration detention was 581 days - the highest ever recorded, and far beyond the averages of comparable countries which face similar challenges to Australia. “Many Australians have recently, for the first time, experienced the realities of being in lockdown. An average of 581 days – separated from family and friends with no certainty of the future – is for many of us unimaginable,” Ms Wright said. Human Rights Day is the day the United Nations General Assembly adopted the Universal Declaration of Human Rights in 1948 and is an important moment for all persons across the globe to reflect on progress made in realising human rights in law and in practice.

Professional Announcements Panetta McGrath Lawyers Panetta McGrath Lawyers has announced the promotions of David McMullen and Natalie Zurita, effective 1 January 2021.

David McMullen

David is promoted to Principal Lawyer - Practice Leader, Commercial. David is a commercial and property lawyer with a focus on aged care, education, health and retirement villages. He has been named in Doyleâ&#x20AC;&#x2122;s Guide as Leading Health & Aged Care Lawyer in Western Australia since 2017. Natalie is promoted to Special Counsel in the Employment and Workplace Relations team. Her experience includes acting for clients across a range of sectors including aged care, construction, education, health and resources.

Natalie Zurita

Panetta McGrath Lawyers congratulates David and Natalie on their promotions.

Arundel Chambers Personal Injury and Insurance Lawyer Roger Sands is now practising solely as a barrister at Arundel Chambers, Unit 5, 17 Arundel Street, Fremantle. He has meeting rooms in Perth when needed. Roger Sands He can be contacted by phone at 0401 697 900, by email at roger@arundelchambers.com, by mail at PO Box 1138, Fremantle 6959 or via website www.arundelchambers.com

New Members

Classifieds Missing Will

Missing Will

GRAEME EDWARD HOPE (Estate). Would any lawyer holding a will for the above-named, late of Conginup, WA, born in Dunedin NZ in 1959 who died on 21/02/1998, please contact Cindy Thom, Wain & Naysmith Lawyers, email cindy@wainlaw.co.nz, tel 0064 3 520-6103, PO Box 11, Blenheim, New Zealand

Any person holding or knowing the whereabouts of the last Will and Testament of the late JULIAN PATRICK McCARTHY of 25/88 Lakeside Drive, Joondalup, Western Australia who died in May 2020, please contact Williams & Hughes Lawyers (ref: CO:36596) of 25 Richardson Street, West Perth, Western Australia Tel: 08 9481 2040 or email: chris.osborn@whlaw.com.au within 21 days of the publication of this advertisement.

Alex Salvaris, Eric Ross-Adjie and Andrea Keri are currently seeking a Senior Commercial Practitioner with their own client base to join us as Principals of the Firm. The position is largely autonomous offering the ability to practise as you choose in a full service office environment in the company of other Senior Practitioners. Contact Alex Salvaris on (08) 9435 9435 for a confidential discussion.

New members joining the Law Society (January 2021)

Associate Membership

Mr Craig Martindale

Mr Brandon Boyd The University of Western Australia

Miss Eileen Melendez The University of Western Australia

Mr Joshua Choo The University of Western Australia

Miss Claudette Rizzi University of New England

Miss Rhianna Dehne The University of Western Australia

Mr Nathan Sexton Clifford Chance

Mr Jolyn Loh The University of Western Australia

Miss Juanita Spedding Edith Cowan University

Mrs Elena Lucassen Edith Cowan University - Business & Law

Mr Gavin Tay Fernandez The University of Western Australia

Tender for the Provision of Legal Services The Insurance Commission of Western Australia will be seeking tenders from legal services providers to establish a panel arrangement for the provision of legal services. The legal panel arrangement will provide legal services for the Insurance Commissionâ&#x20AC;&#x2122;s insurance and non-insurance needs. It is planned that the Tender will be issued on the Tenders WA website, visit tenders.wa.gov.au, in early March 2021.

In memory and honour of HYMAN (Hymie) TOUYZ Passed away peacefully 13 November 2020. Barrister & Solicitor and member of the Law Society of Western Australia 1986 -2002.

Hyman (Hymie) Touyz

+ 30 years prior practice as Attorney & Notary Public in South Africa including a term as President of the Law Society - East London. Respected always by colleagues and clients alike. May his dear soul rest in peace.

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

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

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

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

Brief February Edition

Articles inside

Defining ‘Sexual Abuse’ under the