53 minute read
Freedom of Information - from the Age of Enlightenment to the Digital Age, and Beyond
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 ‘arcana imperii’ (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.
With the advent of the Information Age in the mid twentieth century freedom of information (FOI) law emerged as a 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. 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
In their most basic form, such laws generally provide a right to access government documents, subject to certain 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?
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 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
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.
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 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. 2 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). 3 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. 4 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. 5 The Freedom of information Act 1982 (Cth); and the Official Information Act 1982 (NZ) 6 The Freedom of Information Act 2000 (UK) 7 Source: https://www.article19.org/issue/access-toinformation/ accessed on 14.10.2020. 8 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. 9 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 10 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. 11 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. 12 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. 13 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 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. 14 Official Information Act 1982 (NZ) 15 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. 16 ‘In confidence’ cabinet submission papers for decisions taken as recently as last week are marked “proactively released”. 17 Ricketson, M 1996, ‘Freedom from Information’, Freedom of Information Review, 63, pp.26 – 28. 18 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 19 Right to Information Act 2009. (Qld) 20 Government Information (Public Access) Act 2009 (NSW) 21 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. 22 Note that the Freedom of Information Act 1982 (Cth) has been partially modernised in this way since it was amended in 2009/2010. 23 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. 24 The Royal Commission was established in 1990 to examine, inter alia, the commercial dealings of the Brian Burke Labor Government. 25 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. 26 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.” 27 At [2.1.10] of the COG Report. 28 Recommendations 1 and 2 of Chapter 2 of the COG Report on ‘Open Government’ 29 These measures included the creation of the Public Sector Management Act 1994, a public sector standards commissioner and public sector commission and later enhancements to the Auditor General’s Act 2006. 30 The FOI Act also informs the way that FOI and information access is practiced by agencies. 31 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. 32 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. 33 Hansard 28 November 1991, at p. 7170. 34 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. 35 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. 36 See n.14 above. 37 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 38 Information about the progress of this project is available at https://www.wa.gov.au/government/ privacy-and-responsible-information-sharing. 39 See n.14 above. 40 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. 41 Opening Government – Transparency and Engagement ion the Information Age published by ANU Press, 2018, edited by Wanna J. and Vincent, S. at page 14. 42 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. 43 For example see the WA Open Data Portal at https:// data.wa.gov.au/Blog/open-data-portal.
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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 judgement 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’ 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 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 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 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
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
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 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 a 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 Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27 [34(1)]. 2 Above no. 1 [13.3], [23], [24]. 3 Above no. 1 [13.3]. 4 Explanatory Memorandum to the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill 2017 1. 5 Above no. 1 [19(j)]. 6 Above no. 1 [19(K)]. 7 Above no. 1 [178]. 8 Above no. 1 [179]. 9 Above no. 1 [179]. 10 Above no. 1 [33]. 11 Above no. 1 [66], [82]. 12 Above no. 1 [68]; Citing the Explanatory Memorandum to the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill 2017 3. 13 Above no. 1 [89]. 14 Above no. 1, at [84-89]; Citing Mathews B, New International Frontiers in Child Sexual Abuse: Theory, Problems and Progress (2019) 79-80. 15 Above no. 1 [87]; Citing Western Australia, Parliamentary Debates, Legislative Assembly, 20 February 2018, 335 - 336 (Mr J R Quigley, Attorney General). 16 Above no. 1 [99]-[102]. 17 Above no. 1 [102]. 18 Above no. 1 [90]-[93]. 19 Above no. 1, [209]. 20 Above no. 1, [217]. 21 Above no. 1, [216]; see also Above no. 1 [99]. 22 GMB v Uniting Care West [2020] WADC 165, [97] – [106]. 23 GMB v Uniting Care West [2020] WADC 165, [100]. 24 GMB v Uniting Care West [2020] WADC 165, [105]. 25 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. 26 Western Australia, Parliamentary Debates, Legislative Assembly, 20 February 2018, 335 - 336 (Mr J R Quigley, Attorney General). 27 Above no. 1 [70]; Citing Western Australia, Parliamentary Debates, Legislative Assembly, 20 February 2018, 335 - 336 (Mr J R Quigley, Attorney General). 28 Above no. 1 [85]; Citing Mathews B, New International Frontiers in Child Sexual Abuse: Theory, Problems and Progress (2019) 79-80. 29 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. 30 De Brouwer, Anne-Marie, Supranational Criminal Prosecutions of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR (2005), 10. 31 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). 32 De Brouwer, Anne-Marie, Supranational Criminal Prosecutions of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR (2005), 10. 33 ActionAid, Hate crimes: The rise of ‘corrective’ rape in South Africa (2009), 3. 34 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>. 35 ActionAid, Hate crimes: The rise of ‘corrective’ rape in South Africa (2009), 3. 36 See GMB v Uniting Care West [2020] WADC 165 as an example of a case with a in which the alleged perpetrator is female. 37 Above no. 1 at [85]; Citing Mathews B, New International Frontiers in Child Sexual Abuse: Theory, Problems and Progress (2019), page 79 - 80. 38 Western Australia, Parliamentary Debates, Legislative Assembly, 20 February 2018, 335 - 336 (Mr J R Quigley, Attorney General).
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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 Society’s Facebook page: facebook.com/LawSocietyWA
Sponsored by:
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1. Nick Van Hattem, President, The Law Society of Western Australia 2. 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 3. Sol Wright, Sceales Lawyers, Heidi Gan, Clifford Chance, Georgia Pickering, Law Access Limited 4. Matthew Plint, Plint Legal, Adam Ebell, Office of the Director of Public Prosecutions - State 5. 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 6. Glen McLeod, Glen McLeod Legal, Maryann Mattinson, Focused Legal 7. Taniea Sym, Curtin University, Monica Choi, Ashley Fan, Jackson McDonald 8. 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 9. 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. 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.
YLC Mixed Netball Competition 2020
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 year’s winners Clayton Utz! Will they ever be beaten? We will have to wait until next year to find out!
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. “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.”
