45 minute read
Abuse or Misuse of Powers of Attorney
Perspective and the Law
A presentation by the Hon John McKechnie QC
Presented to the Piddington Society - Perth Town Hall, 19 March 2021
Why do I dare to stand before you today and presume to lecture you about the rule of law and a judicial perspective?
There are 2 answers to that. First, I was admitted to practice in December 1974 before many of you were born. So I have longevity if not wisdom on my side. Secondly, I do not propose to lecture you at all. My dear friend Justice Kenneth Martin refers to himself as a law school survivor. He like me endured 4 years of talking head mind numbing lectures, leavened all to rarely by a scintillating lecture on a subject of interest. As someone forced to absorb Crossley Vanes on personal property, I wonder how we learned much at all. Of course, our soon to be employers when we became articled clerks, accepted that we really didn’t know very much law anyway. As an aside, in the 60’s and 70’s many textbooks were English texts, sometimes adapted by Australian academics for local law. Even today, Cross on evidence remains a go to text, though edited and written by Dyson Heydon. So although I do have some pearls to cast, I am much more intent on harnessing the wisdom of the room.
Conferences like this are a good opportunity to stand apart from the day to day pressures of practice, family, relationships, job insecurity, zoom meetings, and spend a bit of time on reflection.
Why did I become a lawyer? Do I still enjoy being one? Am I trapped? Did I choose my speciality or did circumstances choose it for me?
These are deeply personal questions and it is not my intention to run a therapy session – wrong generation. Rather, we will engage in a more general round table discussion about the rule of law and some perspectives. And along the way I will share some of my observations gained over a lifetime in the law.
A judicial perspective.
I spent 16 years as a judge. In addition to the work of a primary judge, until the establishment of the Court of Appeal I also served from time to time on the Full Court/CCA. I describe the establishment of the Court of Appeal as the day I got my life back. To some, the work is interesting and it is true that occasional cases do indeed raise novel and difficult questions. The majority of the work however is tantamount to marking other people’s homework. Where a primary judge’s role is to search for a solution, it often seems that an appellate judge’s role is to search for error – necessary but stultifying. Besides, as Crown Counsel and later as DPP I had argued enough cases in the Full Court or the High Court to last a lifetime. Trying to get 3, or 5 or 7 to see your very reasonable point of view can be tricky on occasion. So most of a primary judge’s work in civil matters is problem solving and arbitration. Bear in mind that these days, cases do not get to trial until mediation has been attempted and of course most cases settle with mediation. But sometimes it is necessary for an independent umpire to say “you win and you lose”. I found this particularly to be true in inheritance cases over wills and family provisions. As Kirby P once remarked, the law is interested only in dollars and cents, not in hurt feelings. Very few of the cases I tried in that area were really about money – they were about family dynamics. Very often the best efforts of good lawyers to talk sense to their clients were unavailing. Some people would prefer to squander their inheritance – and others – on legal fees rather than let their relative have a red cent.
There is a perception that commercial cases are all about money. This is a false perception. Behind most commercial cases, there is often an undercurrent of bitterness and vengeance, fuelled by a feeling of betrayal. Or a commercial case may present as a dry legal argument on the construction of a statute or a building contract when in reality the subtext is about power and domination. Lawyers have a special role in such cases to act for the legitimate aims of the client but to resist the collateral damage that the client might seek to inflict on a weaker or more vulnerable opponent. I once tried a case about rocks and Atterberg limits. One of the most interesting things about being a lawyer or judge is what you learn along the way. You become a temporary expert in a perhaps narrow field of speciality. Personal injuries lawyers may be minor experts on the physiology of a back but know nothing about the appendix. On its face, the case was as dry as the dust of the rocks – actually a bad analogy because the soil was too wet in fact. A liquidator was suing a head contractor for work done. Hardly John Grisham material. But in reality the case breathed human drama. Reputations were at stake. A sense of betrayal as to the suitability of the rocks for the work at hand – to provide a base course for a power station - was palpable. People felt let down and their reputations under threat. Land resumption cases are another group where raw human emotion is overlooked, apart from a modest – usually 10% solatium paid to soothe the person whose property has been compulsorily acquired. A forced business relocation might destroy the business even if new premises appear suitable. A childhood home may be paid for by the state but nothing can reimburse the memories of a lifetime.
Judges swear to do right to all manner of people according to law. Note that the oath does not bind a judge to do justice. Justice is an abstract concept that may change according to the circumstances. Law at least is certain. What when law and justice diverge? Sometimes judicial officers will craft remedies that allow justice and law to coexist. Years ago, problems arose with the breakdown of de facto relationships and the need to distribute property. A de jure relationship – marriage – was well catered for under family law. Until constitutional and other hurdles were overcome, the law extended concepts of resulting and other trusts and equity to allow fair distribution of assets. It wasn’t a perfect solution and involved considerable straining of the purity of a trust but until Parliaments legislated for de facto arrangements, the law delivered some form of justice. This I would argue is an example of the rule of law in action. Generally, law and justice do coincide but not always. Many years ago I had a case where a mother and sister had advanced money to a drug dealer whose property was subsequently confiscated. They tried to claim the money back. Justice suggested they should succeed. I tried to write a judgment with that outcome, only to fail each time. Finally, I let it write the way it should and the legal result, which I had been fighting, was that they lost. Although my perception of justice wished for a different outcome, by faithfully following the rule of law, the result was clear, notwithstanding personal opinions. The lesson which all judicial officers learn is that the discipline of writing and justifying your decision is all important in following the rule of law. I doubt that a judicial officer gets up each morning and thinks – “How will I advance the rule of law today?” But it is certainly there in the subconscious. Of course, judicial officers, like the rest of the world, have good days and bad days. In a landmark study 10 years ago, judges’ decisions on parole in Israel were examined. A person was far more likely to get parole if one of the first in the morning or one of the first after lunch. The chances of getting parole diminished as the day wore on. What a judge has for breakfast does seem to matter. Perhaps before a difficult hearing you should tempt the judicial palate with a muffin. Judicial officers generally contain themselves and I have a plea to be a bit generous when a normally placid judicial officer is a bit abrupt or rude. I am not here talking about bullies. They are incorrigible. But a magistrate with a pleas list of 80 might be forgiven in keeping counsel to the point. Lawyers are privileged to play a part in other people’s stories. Whether offering advice and counsel, representing a person at a meeting or tribunal we enter someone’s narrative, perform our part, and then quietly leave to take part in someone else’s story. It is an honour to be allowed to act in this way. If we are motivated solely by the fees the contact may generate, we diminish ourselves as human beings. If we view our clients
solely on the basis of billable hours, we run the risk of missing out on the great tapestry of human experience and ignoring the drama that is around us. My friend, noted author and good judge, Nick Hasluck used to say that the best thing about being a judge is witnessing the whole panoply of the human condition. As judge Peter Williams often remarked, a judge has the best seat in the house.
I am getting to the end of my legal career – perhaps not quite the end just yet. I started as a young articled clerk, doing title and company office searches. I joined crown law to advance a career in advocacy as it was obvious to everyone including the long-suffering partners of Jackson McDonald that the world could probably do without another conveyancer of my calibre. The Crown was a great place to work because the range of cases was wide – administrative law, constitutional law, insurance and personal injury law, workers compensation and of course, crime in all its forms.
I remember vividly shortly after becoming Chief Crown Prosecutor that a problem came across my desk and for the first time, I knew the answer. Up to that point, every issue was new and required research.
My 16 years as a judge flew past. Being a judge is personally satisfying so long as you have one indispensable quality – the ability to make a decision. I expect we have all come across otherwise admirable judges who were bedevilled by an inability to decide. They are difficult for counsel, but their own lives are full of stress. While it is good of course to make the right decision, often even a wrong decision will do good and settle a quarrel. Probably the most important judicial skill is decisiveness. As a judge, you have no control over the type of case you are allocated or the counsel who will argue it. When I joined the bench the late David Ipp – there was a decisive judge – gave me some advice. He said that as a silk I was used to being opposed by first class advocates of similar ability. At the court, we got all types and have to do justice sometimes despite the quality of the advocate. While I did have some shockers appear before me, on the whole I had pleasant and rewarding experiences with counsel. If I was trying a criminal case and I had confidence in counsel, life was easy. They would not lead me astray. And this was generally the case. Allowances have to be made by judicial officers for advocates who are new or less experienced. As long as their client is properly represented judicial officers sometimes just have to sit patiently. This does not apply to the Court of Appeal. That Court is quite entitled to insist on high standards from those who appear before it. It is not a learning environment but the highest state court with a large workload and those appearing before it should be competent and experienced. Even counsel with a fearsome reputation in practice often proved less difficult than their reputation. Colin Lovitt, who passed away in January this year was one such. On him I practiced a trick I had perfected as counsel before Justice Terry Franklin. As they got grumpy, I just started smiling. For some reason this disarmed them.
There was only one occasion when I feared counsel. As a new judge I was dealing with a chamber summons about interrogatories. It was a simple issue and the answer was pretty clear. Normally I would have ruled on the spot but counsel was so belligerent to his opponent and to me, that I exercised discretion and announced that I would reserve my decision. When I delivered it a week later, counsel had calmed down. As I say, I was a new judge. That did not happen again. David Ipp to whom I confided, told me in no uncertain terms that I was a wimp. The takeaway from this brief meander into my past is that obedience to the rule of law becomes engrained from an early age. We do not often speak of it because, like gravity, it is just there. As counsel then as a judge, I unconsciously modelled the rule of law in everything I did. I was not alone. I think every judicial officer is the same and the vast majority of practising lawyers, whatever your field. We are now so used to the rule of law in Australia that certain features have become unremarkable. No one now questions that courts and tribunals should be independent. No one questions the principle of equality under the law even though in many areas, particularly with our indigenous citizens, there is a great gap between principle and reality. The notion of law administered in public is so entrenched that when a court sits in private, it often becomes a matter of comment.
In 1770 the great Irish lawyer and advocate John Philpot Curran said “The condition upon which God hath given liberty to man is eternal vigilance”. It behoves every lawyer, indeed every citizen, to ensure that Australia remains a country with an unswerving belief in the rule of law.
John Philpot Curran, by unknown artist
Italian Magistrate Mario Palazzi
How do you Interview the New Mafia of Rome?
By Christopher A. Bonnici - Deputy Public Interest Monitor
Most people have heard of the traditional mafia organisations in Italy.1 However, there are other Italian criminal groups operating in a similar way that can be declared by the courts to be mafia type organisations under Italy’s Criminal Code. I recently spoke to Judge Mario Palazzi, who successfully investigated and prosecuted the Spada clan as a mafia type organisation under the Criminal Code, to find out what he thought were important principles of investigative interviewing. This is one of a series of conversations I have had with experienced anti-mafia magistrates who have successfully conducted interviews during investigations into organised crime and related corruption.2 Unsurprisingly, he, like the other magistrates, thought that good preparation, building trust with interviewees, a flexible approach to questioning and keeping an open mind were fundamental for effective investigative interviews. Judge Palazzi particularly emphasised the importance of maintaining flexibility during the interview process and adapting his interviews to his interviewees and the needs of the investigation. I suggest that these principles are equally important for effective coercive examinations in Australia.
Judge Palazzi, an experienced investigative interviewer, is currently attached to the Antimafia District Directorate (DDA) in Rome. Whilst at the DDA, he has specialised in investigating and prosecuting organised crime in the Roman seaside town of Ostia3 where the Spada Clan had been based. As an Australian, there is something very familiar about Ostia. Its 1970’s style apartment blocks; a commercial strip close to the beach; a broad beachside promenade and a seasonally fluctuating population are reminiscent of the older parts of the Gold Coast and other large seaside towns in Australia. Like many such towns, Ostia has its criminal opportunities not the least of which is the exploitation of its lucrative beachside infrastructure.
Mafia type organisations are typically associated with southern Italy rather than Rome. It may be useful to briefly describe the recent history of how the Spada clan came to control criminal activity in Ostia and what makes it a mafia type organisation. Initially the Neapolitan Camorra and the Sicilian Cosa Nostra from Catania (Sicily) had conducted criminal activity in that area. They didn’t control the territory but imported drugs for distribution by local criminals and conducted other criminal activity such as ‘loan sharking’. There was then a succession of three criminal groups who exercised greater territorial control over Ostia culminating in the Spada clan. The first was the Triassi group from Catania. The media has suggested that this group was affiliated with the Caruana-Cuntrera Cosa Nostra clan based in Siculiana (Sicily). Its leaders were arrested, charged and convicted so the group lost territorial control in Ostia. The second was the Fasciani clan who were also arrested, prosecuted, convicted and lost territorial control. They were, apparently, one of the first non-traditional groups to be declared by a court to be a mafia type organisation under the Italian Criminal Code.
The Spada clan then took over control in Ostia. They had been an Italian ethnic Romani (Gypsy) sub-group of the Fasciani clan who announced their takeover with the murder of two drug dealers from an opposing criminal group in the main square of Ostia in broad daylight.4 They controlled criminal activity including drug
The Roman seaside town of Ostia where the Spada Clan had been based.
trafficking, extortion and ‘loan sharking’ until its leaders were arrested, convicted and the clan was declared a mafia type organisation as a result of the Spada trial (il Processo Spada). Why was the Spada clan a Mafia type organisation? Article 416 of the Italian Criminal Code defines a mafia type organisation as one that uses intimidation and subjugation resulting in omertà (silence).5 Judge Palazzi described it as a criminal organisation that operates within a specific territory or sector and behaves like a traditional mafia.
That is, unlike an ordinary criminal group, which simply pursues a criminal strategy, a mafia type organisation relies on the power of its association to instill fear and subjugation in the affected population. Everyone knows who they are (and what they can do) even if they don’t say it. The result is reluctance to speak about the group. The fact that society is subject to their power, according to the Judge, is what makes a mafia type organisation more dangerous than an ordinary criminal group. Judge Palazzi also described the difference between the traditional and new mafias. The former, he said, have roots in a particular territory and have spread worldwide whereas the latter have less tradition, are not linked to traditional mafias and operate in limited areas. The latter don’t really define themselves according to their territory of operation but rather their ethnic group. They still, of course, interact with the traditional mafia. For example, in the Lazio region (where Rome is located), the traditional mafias import the drugs, make investments and have representatives there to monitor activity but they are not directly involved in selling drugs on the streets. How then did he prepare and conduct his interviews during the investigation into the Spada clan?
Preparation
Judge Palazzi emphasised the fundamental importance of having a good knowledge and understanding of the group under investigation. His knowledge of the Spada clan allowed him to understand the significance of what interviewees were saying, what they were leaving out and to pick up on the ‘signals’ (subtle clues/signs) given by interviewees. In addition, it gave him a solid basis on which to assess whether interviewees were telling him the truth. He also gathered as much information as he could about his interviewees prior to their interviews because it informed his interview approach and strategy. The police conducted investigations and spoke to interviewees before they were referred to the Judge so he had the opportunity to get that information from the police, including interviewee’s ‘emotional reactions’ (as relevant information included more than just what was ‘in the papers’). Judge Palazzi planned his interviews based on that information but he stressed the importance of maintaining flexibility. He would routinely alter his plans in response to investigative developments and to the person he was interviewing. His flexible approach to planning carried over into his interaction with interviewees and his approach to their questioning.
Building and Maintaining Trust
Interviewee co-operation, he said, was built on trust. This, in turn, was based on empathy/making a connection with interviewees. The authority of the judge was a secondary element. In order to make that connection and manage his interviews he would tailor his interaction to each particular interviewee. For instance, if he assessed that people were reluctant to provide information because they were scared, he would lower his authority and ease them into the interview so as to make them feel more confortable. If, on the other hand, he assessed people were not willing to provide information because they were looking after their own interests, he was more authoritative in his approach. Another way he made that connection was to let interviewees know he was familiar with their background. For example, if an interviewee said they were in a particular city at a particular time he would respond by telling him/her what business they were in at that time. This would, he said, reassure cooperative interviewees and unsettle resistant ones (who were then unsure how much was known about them) thereby mitigating the risk they would mislead the Judge. The type of questioning the Judge used during interviews depended on the stage of the investigation and on the person he was interviewing. He would generally ask open questions6 early in an investigation because they allowed him to gather more information and get an understanding of what was going on. Towards the end of an investigation, on the other hand, he would usually ask closed questions7 as more specific information was likely to then be required. The type of questioning, though, mostly depended on the person he was interviewing. You had to, he said, "read the person who is sitting in front of you" and adjust your questioning accordingly. He would resort to more open questions to calm an interviewee down and make them feel more relaxed. He would do so to lead an interviewee to give the information he was actually looking for without having to ask the questions directly. The narrative responses to open questions allowed him to better assess the person sitting in front of him and to inform his interview strategy. For example, he would ask an interviewee about his/her job or professional career and the nature and extent of their answer gave him a better understanding of the interviewee, how willing they were to provide information and where they were likely to take him.8 Judge Palazzi used open questions and their narrative responses for tactical purposes. He gave the example of an interviewee who had been recorded during telephone conversations bragging about the fact he had promised to pay off a public official. Knowing the interviewee had a big ego, and anticipating what the interviewee would say to justify these conversations (always an important thing for an interviewer to do), he just let the interviewee speak about how important he was, how many important people he knew and how competent/reliable he was. When confronted with the recorded conversations, the interviewee predictably responded that he was just bragging. That explanation, however, lacked credibility because it was inconsistent with his previous narrative of self-importance. In other words, the Judge let the interviewee ‘hang himself’ with his narrative response. The Judge’s general approach to questioning also depended on the person ‘sitting in front of him’. Some interviewees wanted to get straight to the point, some had to be taken slowly to where the Judge wanted to go and yet others had to be reined in by the Judge so that they focused on relevant information.
His investigative questioning differed from his questioning in court (even in an inquisitorial system). His court questioning was narrower because it is focused on proving a charge and relied on information already known to the Judge. Whereas his investigative questioning was broader because it is attempting to find out what happened. This reinforces the notion that relatively narrow court style questioning with its greater emphasis on closed questions will not always be appropriate as investigative questioning.
Keeping an Open Mind
Judge Palazzi stressed the importance of keeping an open mind during interviews. It is natural, he said, to make assumptions and deductions from known information to fill in gaps. However, you have to allow for the fact that your assumptions and deductions may be wrong when confronted with apparently credible new information.
The Judge’s observations mainly relate to voluntary interviews rather than to coercive examinations.9 However, in my experience, they are also applicable to the latter as coercive examinations have a significant voluntary component. There is a difference, for example, between interviewees who do no more than answer the questions they are compelled to answer and those who go further and provide full information in answer to those questions. That difference can depend on the way interviewees are treated and the way they are questioned. In my experience, interviewing lawyers/ investigators in Australia too readily default to an ‘adversarial’ approach in coercive examinations, particularly where they encounter resistance from interviewees. That approach is variously characterised by taking a partisan position; using narrow questioning techniques in an inflexible manner; aloof detachment; resorting to being unnecessarily authoritarian, accusatory and confrontational (by word or attitude); and being prepared to condemn an interviewee as a liar based on an untested case theory.10 That approach limits the effectiveness of coercive examinations because it does not create
Conclusion
Judge Palazzi’s experience has taught him that good preparation, building a relationship of trust with interviewees, using appropriate questioning techniques, keeping an open mind and applying all of these principles in ways that adapted to his interviewees and the needs of the investigation were effective for investigative interviews into serious organised crime. I have argued that these principles are equally applicable to coercive examinations in Australia because, despite their compulsion, their effectiveness also relies on interviewers/ examiners creating an environment that is conducive to providing information. Chris Bonnici is a Deputy Public Interest Monitor for Victoria. He has previously conducted over 1300 counterterrorism and organised crime coercive examinations as counsel assisting the Australian Criminal Intelligence Commission. He has also been trained in the PEACE model of investigative interviewing in Australia and the United Kingdom to interview adviser level and has taught that model to the staff of a number of government agencies.
Endnotes
1 The term ‘Mafia’ is an exonym originally used to describe the Sicilian Cosa Nostra. It has later also been used to describe the Campanian Camorra, the Calabrian N’drangheta and the Apulian Sacra Corona Unita (United Sacred Crown). 2 Chris Bonnici, ‘How do you Interview the Mafia? A conversation about investigative interviewing with an anti-mafia magistrate: Judge Antonino Di Matteo’ (2018) 40(4) Bulletin (Law Society of South Australia) 26 and Chris Bonnici, ‘Come si Intervista la Camorra? (How do you interview the Camorra?) A conversation about investigative interviewing with anti-mafia Magistrate Cesare Sirignano’ (December 2020) 40 QLS Proctor. 3 Ostia is a district (Municipio X) within the municipal area of Rome. 4 An example of their violence can be seen on Youtube where Roberto Spada head butted and then struck a reporter completely unconcerned about being filmed by a TV camera right in front of him. 5 The consequences of a declaration are that it is likely to result in longer prison sentences and a stricter prison regime; it makes the confiscation of the proceeds of crime easier; and it opens up the offence of mafia association. There are also a number of additional investigative tools. 6 Open questions are those with limited parameters that invite an extended or narrative response, for example, what happened? 7 Closed questions are those that invite a yes/no or short narrowly confined answer, for example, what time did it happen? 8 Interestingly, Hong Kong ICAC investigators told me they do the same thing when I previously spoke to them about investigative interviewing. 9 Witnesses were required to answer his questions but suspects were not. The Judge commented that some interviewees did not clearly fall into either of these categories and were difficult to manage because different legal rules applied to their questioning and what use could be made of their information. 10 As I pointed out in the second article referred to in endnote 2.
The Regulator and Sexual
Harassment in the Legal Profession
By Libby Fulham Executive Director Legal Practice Board
There is no doubt there are a number of participants when it comes to addressing sexual harassment in the legal profession. As the regulator of the legal profession in Western Australia the part the Board has to play is more than simply being reactive to individual complaints, and there are clear steps the Board can take when it comes to proactive engagement with a view to long term behavioural change. The Board’s purpose is to protect the public and advance the administration of justice by regulating the competence and behaviour of legal practitioners and importantly by promoting the integrity of the Board and its Committees.
Sexual harassment in the profession is behaviour not to be tolerated. If a matter of this kind comes before the Board it will be considered and addressed, and where appropriate investigated by the Legal Profession Complaints Committee. It seems fairly obvious to say that sexual harassment by a legal practitioner is a breach of professional obligations and may impact on fitness to practice, and can also amount to professional misconduct or unsatisfactory professional conduct. Though the message is somewhat worn, particularly when there are further reports of the embedded norms regarding this type of unwanted and unwelcome behaviour in the legal profession1 and little traction in eradicating it. New, or more, rules are not, on their own, going to change attitudes or be the catalyst for systemic cultural change, nor will they help substantiate a complaint. Some attitudes towards sexual harassment in the profession require a significant shift. While various recommendations being implemented in relation to our laws and behaviours in our courts and tribunals will contribute, these should not be the only tools in our armoury to compel change. As a regulator all too often our role starts too late and finishes too early and does not offer satisfaction. When we do receive complaints, of which there are very few, they have been dealt with on an individual basis. In other words we are left to consider the alleged conduct on a case-by-case basis that is all too often either inconclusive or so anonymous or not-attributable as to cripple any possibility of a finding. This system relies on punishment for individuals so few in number some may ask if the game is worth the candle.
In relation to an issue considered rife in our profession why don’t we as the regulator receive more complaints of sexual harassment? For a number of well-known reasons, that include: • The complainant fears retribution or persecution, becoming a victim all over again, and the prospect of facing other legal consequences, all for no outcome if the complaint is not upheld. • The complainant is embarrassed and fears being ultimately disadvantaged. • The complainant considers there will be a high evidentiary burden. • There has been an agreement of ‘silence’ after a workplace investigation has taken place. • The complainant fears a risk of reputational damage. What we can do is to take the onus from the individual as a complainant and make the universal problem one that the wider profession can own and be instrumental in the solution. For the Board’s part it is being proactive in: 1. Calling out sexual harassment as an embedded issue in our profession, and not an individual’s problem. 2. Improving awareness of sexual harassment – what it is, how it can be identified, and the action to take when it is identified.
3. Promoting the utmost ethical and professional responsibilities of members of the profession. 4. Providing resources to practitioners to understand the issues surrounding sexual harassment and other inequality behaviours. 5. Promoting best practice policy and procedure to support the prevention, identification, reporting, and resolution of sexual harassment complaints. 6. Promoting cultural excellence in stamping out sexual harassment in our profession. Calling perpetrators out goes a long way to ensuring that as a profession we are united in upholding our professional obligations. 7. Promoting our credibility as a regulator so the profession is confident in our capability to equip them with an appropriate response to this issue and with the means to bring about effective change. 8. Working with other regulators in this jurisdiction and nationally to challenge accepted bad behaviours in the legal profession. So where are we at? There is still a long way to go, but together the Board and Legal Profession Complaints Committee have started the processes set out above, in particular through: • The establishment of a dedicated hub with an email address harassmentreport@lpbwa.com accessible through our website so harassment reports can be made, anonymously or otherwise, and showing we are ‘open for business’ and can provide guidance through the complaint process. • A collaboration with the Law Society of WA and the College of Law to develop a dedicated CPD activity using the platform of experiential learning, to be delivered in August 2021. • Training our staff to take information about, address and where appropriate investigate this conduct, and to be active in the education and promotion of cultural change. The Uniform Law will also assist by allowing the Board to consider the management of a law practice and issue management system directives, which not only require remedial action but include regular review and education to reinforce positive culture. The ongoing focus will be on long term behavioural change and strengthening the profession by promoting excellence in standards and expectations on equality.
Endnotes
1 See the report from the South Australian Equal Opportunity Commission ‘Review of Harassment in the South Australian Legal Profession’ April 2021, and the report and recommendations of the Review of Sexual Harassment in Victorian Courts and VCAT March 2021 by Dr Helen Szoke AO.
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Magistrate Wendy Hughes’s
Magistrate Wendy Hughes delivered a powerful speech at the Asian Australian Lawyers Association Lunar New Year 2021 Dinner, which was held at The Melbourne Hotel in Perth on Friday, 12 March 2021. Her Honour has kindly given permission to Brief to publish it.
I would like to begin by acknowledging the Whadjuk people of the Noongar nation on whose land we meet tonight, and pay deep respect to elders past, present and emerging. I will take you back to August 2019. I decided to apply to be a Magistrate in the Children’s Court. I was 37 at the time. There hadn’t been an appointment in the Children’s Court for 13 years. I was confident I could do the job. I work hard and most importantly I genuinely like kids and teenagers in particular. But would they want me? Am I too young? Am I too different? There are not a lot of people who look like me. Fast forward to the interview three months later. I was in the middle of prosecuting one of the worst sex trials I had ever prepared. I was distracted. I had to close to the jury the same morning as my interview. Before the interview I had anticipated the worry in the room would be if we appoint you now, how will you be in 5, 10, 30 years? That’s a lot of busy lists, trials and selfrepresented litigants. And, as I anticipated the question came to me during my interview. Truth time. Do I share who I am as person? Or do I take the safe route and list my rigorous self-care routine. This is the law after all. We don’t share personal things about ourselves. It’s all business. There are people I know who proudly worked through the death of a family member without anyone in the office knowing. In that split second I decided to share. At least if I didn’t get the job I would know why. So I said “because I am adopted it means I am always grateful and expect nothing. It’s just not in my nature to become unhappy”. I then went on to explain that in all my time prosecuting and defending, having come across many big dogs in trials, I have never once come close to losing my temper. It’s just not who I am as a person. The panel seemed to accept my answer. You see I am adopted. I was adopted from South Korea as an 8 month old baby. My birth mother was 37 when she gave me up for adoption and my birth father is unknown. I have never searched for my birth mother because I don’t want joke for some people. I had an insensitive Uncle who came to visit when I was 8 who kept calling me my sister’s name and vice versa. When my sister and I challenged him he said “I am sorry, it’s just you are both so alike I can’t tell you apart”. So as an adult today the effect of all that is I am actually a pretty resilient person. I don’t take myself too seriously. I have a pretty good sense of humour. I am not an angry person. I always try to give people the benefit of the doubt. Because as a child, I couldn’t get angry every time someone said something that was wrong or insensitive. Put me in a leadership position and I am naturally calm, empathetic and fair. Even at times of high stress I have never shouted at anyone or thrown a video record of interview at anyone’s head. All good attributes that make an effective leader in my view. My adoption has humbled me. You see what my life story is an example of is how you can’t make a judgement about what kind of a leader a person will be without getting to know them first and understand their strengths and weaknesses. Organisations all over the world are starting to see that there is a whole body of research that tells us if we want to get the best out of people who work for us we need to understand what connects us and motivates us. For example Eric Mosley who wrote the book Making Work Human1 argues the importance of bringing humanity and connection to the workplace in order to increase performance. My hope is, gone are the days when you experience the loss of a parent or family member and you simply power through without anyone in the office knowing or acknowledging your grief. I now wish to consider the ‘bamboo ceiling’.2 Asian people make up 12 percent of our total population but hold only around 3 percent of senior leadership positions in our public institutions and ASX 200 companies.3 The law is no different. The Race Discrimination Commissioner Chin Tan, the first Chinese Australian Barrister to be admitted to the NSW bar, said at an Asian Australian Lawyers event in Sydney in June 2019 there is a gross under representation of Asian Australians in the legal system. “Asian Australians account for 9.6 percent of the Australian population, but only 3.1 percent of partners in law firms, 1.6 percent of barristers and 0.8 percent of the judiciary.4 And this is despite Asian students dominating high school and university results. It is important for us to explore the reasons preventing Asian people from entering into leadership positions. Some argue it can be attributed to outright racism. Such examples include the reported anxiety about having too many Asian students being accepted into academically selective schools,5 or the suggestion that medical schools changed their admission process to accepting post graduate students, seeking “more rounded applicants” rather than high scoring Asian students straight from high school.6 I personally have not formed a firm view on this argument either way. However, I believe a more likely scenario may be a general stereotyping of Asian people. Stereotypes such as Asian people being viewed as model migrants who are reluctant to challenge authority, desirous of harmonious relationships, being well suited for hard labour but not decision making.7 In other words, introverted, meek, not assertive, nerdy, no gravitas. So what is the answer? Do we encourage Asian people to be more like the stereotypical leader? Confident, charismatic, has swagger, commands others, stands out. Which is a very male model. It is a very seductive model. Just look at some of the world leaders we currently have or have had. Or do we start to challenge ourselves on what actually makes a good leader. And the interesting thing is we already know what makes a good leader. If you think about it from your own perspective, there are people in our professional careers, both men and women, who were or are incredible leaders. What qualities did that person have that made it a joy to work with them? Professor Tomas ChamorroPremuzic who wrote the book Why do so many incompetent men become leaders (and how to fix it)8 argues what makes a good leader are people who are competent, rational, curious – i.e. they know what they don’t know, humble, empathetic, altruistic, ethical and honest. I pause to note that Professor ChamorroPremuzic is clear in his book that his argument equally applies to both women and men who don’t fit a stereotypical male model of a leader. It follows, if we know what makes a good leader why is it that we as a society continue to seek the same type of leaders? Because same is safe and different is dangerous. So if we want to see innovation and get the best from our teams, then we must challenge ourselves to look for diversity in our leaders. To find those leaders who are competent, humble and consider the needs of others.
So in conclusion, I firstly encourage everyone not to make any assumptions about a person and to get to know them first. To try to understand what motivates them and what connects them to their work. Secondly, I challenge everyone to consider what actually makes a good leader. To look for those new and emerging leaders who are competent, rational, curious, humble, empathetic, altruistic, ethical and honest. And finally, encourage all the Asian lawyers in the room to see their Asian culture and experience of being from a migrant family as an incredible strength that provides a great foundation to be a successful leader in the law, now and in the future.
to shame or embarrass her. Because my mother was 37 when she gave me up, I feel like there may be a story there. I may be the product of rape, abuse or an affair. South Korea remains a deeply conservative country and there may be many reasons why she may not want me to turn up on her doorstep. Fortunately for me my life in Australia has been ace. I grew up in white middle class Australia. I have a sister who is my parents’ biological daughter and is 10 months younger than me and has blonde hair and blue eyes. Notwithstanding always feeling different, feeling different in my own family, amongst my friends and at school I had an idyllic childhood. Being a child of the 90’s life was great. We never had to drink plain water and were always allowed green cordial whenever we wanted. And the snacks were awesome.
But as I reflect on my childhood as an adult I realise there were a series of small micro experiences that have shaped me. Like when my sister and I were toddlers and my Mum had us both in the shopping trolley and a man commented, “I’d like to know how that happened”. Or the first day of year 1 when the teacher remarked I was “very confident” because she thought I had attended the first day of school without a parent. Mum was actually in the back of the classroom with the other parents. Doctors always asking me for my family medical history. A university lecturer accusing me of cheating because my surname is Hughes and not an Asian surname. Then in the 1990’s during the Pauline Hansen era, which I appreciate was an unsettling time for many Asian Australians, I had people reassuring me that Ms Hansen was not referring to Asian people like me. There were even times when my adoption was a
Endnotes
1 Mosley E, 2020, Making Work Human-How HumanCentred Companies are Changing the Future of Work and the World, published by McGraw-Hill Education, United States of America. 2 “The “bamboo ceiling” refers to a multitude of cultural factors impeding the rise of Asian Australians to the upper levels of the professional world”. Xiao, B and Handley E, 2019, How Asian-Australians are struggling to break through the ‘bamboo ceiling’, ABC, 2 November 2019, available at https://www.abc.net. au/news/2019-11-02/asian-australians-struggling-tobreak-bamboo-ceiling/11665288. 3 Evans G, 2019, Opinion-the ‘bamboo ceiling’ in Australia is real, Sydney Morning Herald, 12 September 2019, available at https://www.smh.com.au/national/ the-bamboo-ceiling-in-australia-is-real-20190912p52qp8.html. 4 Asian Australian Lawyers Association Cultural Diversity Report 2014, The Australian Legal Profession: A snapshot of Asian Australian diversity in 2015, available at http://www.aala.org.au/cultural-diversityreport-2015. 5 Ahmed T, 2019, Opinion - The bamboo ceiling and the meaning of meritocracy, Financial Review, 24 September 2019, available at https://www.afr.com/ politics/federal/the-bamboo-ceiling-and-the-meaningof-meritocracy-20190923-p52u04. 6 Ibid. 7 Ibid. 8 Chamorro-Premuzic, T, 1 March 2019, Why do so many incompetent men become leaders (and how to fix it), published by Harvard Business Review Press. 9 Ibid.
LawWeek Wrap Up2021
A focus on law and justice in the community
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Law Week 2021 Reaches a New High.
Reflecting on national Law Week 2021, and the profession we serve, the Law Society is privileged to work the wider legal profession to create a festival of events and online advocacy that celebrates lawyers making a difference, those working with diverse communities and those working and living in the regions. Law week provides an excellent opportunity to shed a spotlight on access to justice and to acknowledge those working in this area. A big thank you to those organisations and individuals who took part in Law Week in providing free information or services for members of the public. We were pleased to have over 30 events this year with people participating in higher numbers and with great enthusiasm given Law Week in 2020 was a virtual affair. Law Week has a long history, going back to the first ‘Law Day’ organised by the Law Society in 1983. Over the decades it has gone from strength to strength, evolving into a weeklong celebration. The Week has always been about connecting the legal profession with the community, demystifying our justice system, and keeping people informed about their rights and responsibilities before the law.
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1. Oral McGuire, Dr Adam Tomison, Department of Justice, Gary Mack,
Abacus Legal and Mediation, Greg McIntyre SC, Michael Kirby Chambers,
Hon John Quigley MLA, Attorney General for Western Australia, Jocelyne
Boujos, President, The Law Society of Western Australia, Dr Jacoba
Brasch QC, President, Law Council of Australia, Rebecca Lee, Francis
Burt Chambers, Catherine Fletcher, The Information Commissioner of
Western Australia 2. Hon John Quigley MLA, Attorney General for Western Australia,
Recipients of the Attorney General’s Community Service Law Award:
Miranda Cecich, Pilbara Community Legal Service, Lee Rossetto,
MinterEllison, Jon Redman, Tindall Gask Bentley Lawyers 3. Law Week Breakfast 4. YLC Screening of In My Blood It Runs 5. Glen McLeod Legal team: Lea Hiltenkamp, Glen McLeod, Chelsea White,
Emiko Watanabe 6. Law Week Cocktail Party 7. Dr Jacoba Brasch QC, President, Law Council of Australia, presenting at the Law Week Breakfast
Highlights:
The Law Society team were up bright and early to join the legal profession for the walk along Perth’s picturesque Riverside Drive to support a vision for equal access to justice for everyone in Western Australia. This great event certainly got people talking with their feet and with their furry canines for the Law Access Walk for Justice. A ground swell of 424 participants, some fully kitted with Firm T-shirts, energetically took part in the walk from the Bell Tower along the foreshore. Congratulations to Law Access on their most successful fundraising year yet with a significant $118,960 raised to date to ensure they can continue to provide this critical service. This annual date has taken a firm place on the calendar each year to celebrate national pro-bono day with the photos telling the story of individual, firm and community all supporting this important cause. The explosion of social media posts and photographs were testimony to people’s delight at being able to come together safely with the uniting purpose of raising funds for pro-bono legal services via Law Access, a wholly-owned subsidiary of the Law Society of Western Australia. On Wednesday, the Law Society hosted its biggest Law Breakfast yet – with over 180 legal professionals enjoying an energising morning at the Perth Convention and Exhibition Centre to acknowledge the importance of access to justice for all and to celebrate lawyers making a difference in the community. We were delighted to host the President of the Law Council of Australia, Dr Jacoba Brasch QC, who travelled to Perth specially to deliver the keynote address, “The Call for Change – Law, Culture, Diversity, Voice”. With the theme of change, the Law Society was pleased to announce its new cultural change framework which is in development and which aims to provide tools to help address sexual harassment and bullying in the workplace. This programme, called “Change the Culture”, will be launched in the near future. You can read Dr Brasch’s keynote address, “The Call for Change – Law, Culture, Diversity, Voice” here. Once again, the Society was delighted to host the Attorney General’s Community Service Law Awards at the Law Week Breakfast event, celebrating outstanding lawyers making a difference to community. The Hon John Quigley MLA, Attorney General, presented the following three winners with their awards:
Veteran family lawyer Jon Redman won the Individual Award in honour of a long history of pro bono work dating back to 1982, when he helped establish the Sussex Street Community Law Service.
The Not-For-Profit Award went to the Pilbara Community Legal
Service, which assists people across the region from the main population centres to remote communities.
Minter Ellison received the Legal Firm Award for its work with a range of community service providers and not-for-profit organisations, contributing thousands of pro bono hours. In line with celebrations on the centenary of Edith Cowan as the first woman in Parliament in Western Australia, the Old Court House Law Museum created two special events for Law Week. Firstly, its exhibition The Women Should have a Voice – Edith Cowan’s Legacy of Social justice in Western Australia. A fantastic exhibition of objects and documents from Edith Cowan can be viewed until the end of 2021.
