Brief August Edition by The Law Society of Western Australia

VOLUME 48

NUMBER 4

AUGUST 2021

Special Feature:

Trailblazing Women of Law A celebration of Western Australian leaders in the law

Also inside ... Royal Commissions an important part of the research ecosystem

The Attorney General’s Update to the Profession

Freedom vs Protection

Blockchain and cryptocurrency basics that won’t put you to sleep

advice for representing people with impaired decision making

Environmental Protection and Economic Development Ademption Law Reform

Successful law firms are agile Whether you’re at home or back in the office, LEAP lets you work with flexibility. Transition to LEAP and take advantage of integrated matter management, document automation and legal accounting in one platform. leap.com.au/agile-law-firms

Volume 48 | Number 4 | August 2021

CONTENTS

13 FOLLOW US

lawsocietywa.asn.au @the_Law_Society_of_Western_Australia

LawSocietyWA

@LawSocietyWA

ARTICLES 06

Trailblazing Women of Law

Who Moved My Bitcoin?

On Bravery

The Women Should Have a Voice: Edith Cowan’s legacy of social justice in Western Australia

Blockchain and cryptocurrency basics that won’t put you to sleep

Attorney General’s Update to the Profession

Royal Commissions: an important part of the research ecosystem

Environmental Protection and Economic Development: A Poorly Executed Balancing Act

Freedom vs Protection: advice for representing people with impaired decision making

Reform of the Law of Ademption in Western Australia

Superannuation Guarantee Contributions Increased

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

Editor: Jason MacLaurin SC Editorial Committee: Gregory Boyle, Thomas Camp, Jack Carroll, Dianne Caruso, Megan Cramp, Patricia Femia, The Hon John McKechnie QC, Dr Pat Saraceni, Robert Sceales, Teresa Szunejko, Eu-Min Teng

REGULARS

Proofreaders: Ingrid Briggs, Sonia Chee, Cassandre Hubert

President’s Report

New Members

Editor’s Opinion

Member Privileges

Ethics Column

Quirky Cases

WA Case Notes

Cartoon

High Court Judgments

Law Council Update

Federal Court Judgments

Professional Announcements

Family Law Case Notes

Classifieds

Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au | Web: lawsocietywa.asn.au ISSN 0312 5831 Submission of articles: Contributions to Brief are always welcome. For details, contact brief@lawsocietywa.asn.au.

President: Jocelyne Boujos Senior Vice President: Rebecca Lee Junior Vice President & Treasurer: Shayla Strapps Immediate Past President: Nicholas van Hattem Ordinary Members: Rebecca Bunney, Daniel Coster, Angie Gimisis, Ante Golem, Matthew Howard SC, June Kenny, Gary Mack, Judy McLean, Craig Slater, Brooke Sojan, Paula Wilkinson Junior Members: Thomas Camp, Selina Gates, Lea Hiltenkamp Country Member: Melita Medcalf Chief Executive Officer: David Price

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

Welcome to the August edition of Brief. In this edition, we commemorate the centenary anniversary of Edith Cowan’s election as the first woman to the Western Australian Parliament. Edith Cowan was an inspirational leader and paved the way for other women to follow in her footsteps. In her inaugural speech on 28 July 1921, she said: “It is a great responsibility to be the only woman here, and I want to emphasise the necessity which exists for other women being here.” (Read the fascinating speech here.)

“Trailblazing Women of Law in Western Australia” We interviewed female leaders of the WA legal profession who are trailblazers in their own right as the first women to be appointed in their positions. I warmly thank all our interviewees for participating in this special feature. I encourage you to read their inspiring stories, as we reflect on – and celebrate – the progress women have made in the LAW over the past 100 years.

Change the Culture – Addressing Workplace Sexual Harassment in the Legal Profession The Law Society recognises that the majority in the legal profession hold their professionalism and behaviour to high standards, however it is unfortunate that poor workplace behaviour and sexual harassment may occur. The Australian legal profession came under the spotlight in 2020 for a sub culture of non-reporting of sexual harassment, passive bystanding and mistrust around the management of complaints. The Law Society has responded and created a new framework called Change the Culture as a means of addressing this issue and to support lawyers and law firms in finding their way to change any such aspects of workplace culture. The core aspect of this framework is behavioural change, and the Society is pleased to have entered into a licence agreement with Queensland Law Society (QLS) to deliver special training in Western Australia. The QLS training is an Australian first legal industry training resource to deal with the issue of sexual harassment in the profession. This program has had excellent reviews. We are pleased that Margie Tannock and John Poulsen have agreed to act as facilitators in Western Australia and have undergone special training with QLS in order to take on this important role. This training will soon be available to all members of the profession with sessions to be held at the Law Society as well as delivered into firms as in-house training. For further information please email membership@lawsocietywa.asn.au

2 | BRIEF AUGUST 2021

Membership Renewals

administration of justice in Western Australia.

The new membership year, which commenced on 1 July, is now well underway. A strong showing of over 3,600 members renewed their membership before 31 July. It’s great that more than 3,000 members will have the exclusive added benefit of free CPD, through the CPD Freedom programme, in 2021/22. A fantastic programme of seminars is available to all members, which I encourage you to utilise for your professional development points this year. The Society will continue to deliver sessions both online and in person, which means accessing CPD seminars, obtaining and recording your points through the Society’s programmes is now more convenient than ever before.

Since the last issue, the Society has also made numerous submissions and provided comment on various issues directly to decision makers and stakeholders including: More Court rooms for Criminal trials Uploading Probate grants on the e-courts portal Consultation on the Bailiff contract White noise in the David Malcom Justice Centre mediation rooms Strategies to recruit and retain lawyers in RRR locations

I thank you for your membership renewal.

Australian Solicitors Conduct Rule 42

Advocacy and Professional Development

The Consumer and Trader Jurisdiction of the Magistrates Court

Since the last edition of Brief, the Society has continued to advocate for important law reform to enhance the business of the legal profession, improve access to justice and benefit the Western Australian community. We are pleased to acknowledge that the Uniform Law Application Bill was re-introduced in the first week of the August sitting. We have responded to Parliamentary enquiries.

Draft Revenue Ruling on the meaning of ‘Substantially One Agreement’ Recruitment and Retention of Lawyers in Rural, Regional and Remote Australia - Law Council of Australia Consultation Paper on Rules 91B and 91BA of the Legal Profession Uniform General Rules 2015 - Legal Services Council

It was extraordinary that Administration Amendment Bill 2021 (Bill) which will bring WA into the 21st Century and align with the other States and territories was not passed in 2020 despite being introduced. I understand the Bill in its current form will have the support of the Opposition.

Anti-Ademption Provisions - Attorney General

This Bill (to increase the statutory legacy and so bring WA into line with other States) was previously introduced into Parliament in 2018 and had had its second reading speech prior to the election, when it lapsed when Parliament was prorogued. It was re-introduced in May 2021, however it is slipping down the Legislative Assembly Notice Paper to now be the 6th Order of the Day. I have written to the Attorney-General on several occasions calling for the passage of the Bill to be expedited. Not prioritising the Bill is to disrespect the needs of nearly 50 percent of the WA community. Not passing this legislation more than thirty years after Carmen Lawrence, the then Premier, identified rectifying this as a priority, has now become inexplicable.

Law Society of WA Professional Standards Scheme – Risk and Compliance Framework and Five-Year Plan Review – 2019/2024 Scheme - Professional Standards Council

The Society also noted the introduction of the Courts Legislation Amendment (Magistrates) Bill 2021 (Bill). The Society considers the Bill may have consequences that are not immediately appreciated, and it is not clear whether the Bill will be subjected to scrutiny by any Parliamentary Committee. At this time, the Society neither supports nor opposes the Bill but we are considering its implications. However, we expect, and usually are, consulted directly on all legislation which may affect the legal profession and the

Magistrates Court (Fees) Regulations 2005 (WA) – Small Business Definition Workcover Costs Determination – Call for Review Charitable Trusts Bill 2021

Passage of the Migration Amendment (Regulation of Migration Agents) Act 2020 (Cth) A National Register of Enduring Powers of Attorney

Voluntary Assisted Dying (VAD) legislation A timely seminar from our professional development offering coming up at the end of the month is on the Voluntary Assisted Dying (VAD) legislation, where the Society will host Dr Scott Blackwell, the Chair of the VAD Board; Hannah Leslie, a senior member of the State Administrative Tribunal; and Dr Andrew Miller, the Immediate Past President of the Australian Medical Association WA Branch to discuss the ins and outs of the now implemented VAD regime.

NUTHA WAY and NAIDOC Week As part of the Society’s commitment to Indigenous issues and Closing the Gap, its pioneering project Nutha Way has reached its first year milestone ( YEAH!) despite the challenges of operating in regional areas during the pandemic.

Nutha Way is about engaging with young Indigenous people in a meaningful way, garnering their input to identify issues faced in their community, and identify solutions they feel would help solve these issues. Many people talk about co-design, but in practice it is often just a fleeting engagement or oneoff workshop. Nutha Way has embedded co-design into every aspect of the process over the whole lifecycle of the program to endeavour to ensure real outcomes. Thanks to our project partners Millennium Kids and Media on Mars. Learn more about the Law Society’s Nutha Way program at: https:// nuthaway.org.au/ Last month, we celebrated NAIDOC Week 2021 (14 – 11 July) with the theme ‘Heal Country’. The theme recognises the

importance of Country and calls for stronger measures to recognise, protect, and maintain all aspects of Aboriginal and Torres Strait Islander culture and heritage.

Cluedunnit Kids 2021 Wow - what a terrific way for kids from all backgrounds to to get a “hands on” experience of how the law can work. I was honoured to be a judge ( very difficult decisions) and to meet and acknowledge the participants and winners. The Children’s Court of Western Australia kindly hosted the Law Society’s Cluedunnit Kids 2021 Awards Ceremony. Congratulations to the award winners; Winner: The Inspectigators, Our Lady of Grace; Runner up: The JTC Super Snoopers, John XXIII College; Ambassador

School: The Radical Radishes, Maylands Peninsula Primary School. Thanks to our exclusive Cluedunnit Kids partner Curtin University Law School and the Judging Panel; Judge Hylton Quail, President, Children’s Court of Western Australia; Mr Steven Heath, Chief Magistrate of Western Australia; Professor Robert Cunningham, Dean, Curtin University Law School; Dr Andrew Lu AM, Partner, HBA Legal; Mrs Claire Rossi, Legal Aid WA; and Sergeant Garry Corker (alias Arty Choke) CWA Police. I applaud Dean Curtis and the team who put this together, for many years now, as they go a long way to make law immediate and relevant to this very important community group - Also, I had a lot of fun!

A big shout out! To our new and renewed members. We have 3,600+ reasons to celebrate and support our community. Thank you!

EDITOR'S OPINION Thomas Camp Acting Editor, Brief | Solicitor, Butcher, Paull & Calder Junior Council Member, Law Society of Western Australia

t is serendipitous timing that this edition, which celebrates the achievements of women of the law in this state, coincides with confirmation from a Conference of Law Societies’ report that women now make up the majority of solicitors in all states and territories in Australia.1 Looking at the formidable contribution made by those women who are featured and interviewed in this edition, this significant shift is an exciting development for the profession.

The right to vote We have come a long way. The State Library of Western Australia reflects on an interesting time in history, noting that Western Australian women were among the first in the world to obtain the right to vote. The Women’s Christian Temperance Union (WCTU) had begun campaigning for the vote in 1896 by writing to newspapers and holding public meetings in Perth and regional centres throughout the south west. The West Australian newspaper declared its support for women’s suffrage in 1898. The following year the WCTU joined with the Karrakatta Club, Australia’s oldest women’s club, to form the Women’s Suffrage League. Together they brought pressure to bear on the Western Australian Parliament. In August 1899 both Houses of the colonial Parliament passed a motion in favour of women’s suffrage. The Constitution Acts Amendment Act was proclaimed on 18 May 1900, giving women the same voting rights as men. Women were able to participate in the Federation referendum on 31 July 1900. Shamefully, those excluded from voting included Aboriginal and Torres Strait Islander people, and people of African and Asian descent, unless they were substantial landowners.2

Hard fought gains Winning the vote was just the beginning on the road to equality. Seemingly, each step has needed to be hard won in the face of opposition. On 25 August it will be 85 years from the inaugural speech of another trailblazer, Dame Florence Cardell-Oliver, Member of the Legislative Assembly. Dame Cardell-

4 | BRIEF AUGUST 2021

Oliver would go on to be the first female in Australia to obtain full cabinet rank – this took until 1949! During her inaugural speech, she was heckled by members of the Press to the effect that there were no ladies in the House. She retorted that the claim “is somewhat embarrassing as it forces the conclusion that there are no gentlemen”.2 Anyone who has seen Ms Represented on the ABC would be forgiven for thinking that the conclusion reached may still apply to some houses of Parliament in this country.

“Bar fights” Outrageously, even as late as 1965, while many pubs in Australia had a ladies’ lounge for the ladies who liked a tipple, women were banned from entering the public bar.3 Often women were only allowed in the ladies’ lounge when accompanied by a man. But the feminist movement was ready to take on this fight, and ladies defiantly left the lounge in pubs around the country, marching into public bars and demanding drinks. At Brisbane’s Regatta Hotel they even chained themselves to the bar to get their point across, and eventually government legislation allowed for women to drink in any watering hole they wished. This is fortunate for that majority of solicitors who are female, as a visit to a bar after a particularly busy week can often seem to be an occupational necessity.

A bumper edition this month! Apart from our special feature, we have a wide array of topics in this edition. In her article on “Royal Commissions” (page 40), Dr Elise Bant provides interesting insights on value of these inquiries in the broader research ecosystem. Michael Bowyer, Principal Legal Officer at the Public Trustee, has some helpful hints to save you at dinner parties when confronted with uncomfortable legal questions about a family member who has dementia or is recovering from a stroke or aneurism. He tells us about his free online book Freedom vs

Protection - A guide to guardianship and administration orders, litigation and court trusts for people with impaired decisionmaking (page 43). Verginia Sendev-Patterson (tries to demystify blockchain technology and cryptocurrencies in her article, “Who moved my bitcoin? Blockchain and cryptocurrency basics that won’t put you to sleep” (page 44). We have an update to the legal profession from the State Attorney General (page 48), reflecting on the last term and looking at new priorities and law reforms planned for this term. Tim Dickson’s “Environmental Protection and Economic Development: A Poorly Executed Balancing Act” (page 50), won the National Environmental Law Association’s 2020 environmental law essay competition last year. A quick aside, mark down 12 November 2021 in your calendar as bookings are now open for the Young Lawyers Black Tie Ball at Optus Stadium. This will be the first YLC ball for many years and it promises to be a very special night. I close my first editorial with a reflection on the far more consequential firsts which are recorded in the Trailblazing Women of Law feature. While it is exciting to see new firsts occurring even up to 2019, perhaps the more exciting prospect is the promising future for our profession where recognition and advancement of women is so commonplace that such “firsts”, which we rightly celebrate, will all be achieved and so will become a matter of history.

End Notes 1 https://slwa.wa.gov.au/exhibitions/s/federation/page/ women (downloaded 6 August 2021) 2 Dame (Annie) Florence Gillies Cardell-Oliver (parliament. wa.gov.au) (Downloaded 6 August 2021) 3 https://www.abc.net.au/news/2012-03-08/timeline3athe-women27s-movement/3873294?nw=0 (downloaded 6 August 2021)

Young Lawyers Black Tie Ball

Join the future of the legal profession for an experience not to be missed! Friday, 12 November 2021 | 6.30pm – 11.30pm | Optus Stadium, Burswood

Experience a spectacular and glamorous evening of entertainment with stunning views of the Swan River Indulge in pre-drinks on the Champions Terrace overlooking the lush playing surface while enjoying an impressive state-of-the-art light show. Followed by a three-course meal, drinks package, and sought after DJ in the River View Room!

Like all Society Gala events, this is the event to be at! Young lawyers, and all of the legal profession, are invited to join us for this magical evening of entertainment. Members may bring one guest at the member ticket price. Tables, groups and single tickets available Platinum Sponsor To register please click here or visit lawsocietywa.asn.au

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

6 | BRIEF AUGUST 2021

n this special feature, Trailblazing Women of Law in Western Australia, we commemorate the centenary anniversary of Edith Cowan’s election as the first woman to the Western Australian Parliament.

In her inaugural speech on 28 July 1921, Edith Cowan said: “It is a great responsibility to be the only woman here, and I want to emphasise the necessity which exists for other women being here.” Edith Cowan was an inspirational leader and paved the way for other women to follow in her footsteps. Cowan’s private member’s bill, the Women’s Legal Status Act 1923, opened up pathways for women to participate more fully in the legal

profession. We have reflected on the progress women have made in law in Western Australia over the past 100 years; from the earliest women enrolled in the first class of law students at the University of Western Australia in 1928, through all the social, political and cultural changes of the twentieth century, to the new millennium when five female judges of the District Court were photographed together as a symbol of the changing nature of both the profession and the justice system – women continue to break down barriers and strive for unprecedented success in service to the law in Western Australia. For this special feature, we interviewed some of these female leaders of the WA legal profession who are trailblazers in their own right, as the first women to be appointed in their respective positions. Together, we celebrate their achievements and hope to inspire the next generation of young women lawyers to continue their work.

Feature Contents 9

On Bravery by Clare Thompson, President Women Lawyers of WA Inc

The Women Should Have a Voice: Edith Cowan’s legacy of social justice in Western Australia by Toni Church, Museum Curator, Old Court House Law Museum

Margaret Battye, Kathleen Hartrey, Molly Kingston and Sheila McClemans

Interviews 19

Her Honour Antoinette Kennedy, AO

The Hon Cheryl Edwardes, AM

Jane Thompson (nee Stimson)

The Hon Christine Wheeler, AO, QC

Her Honour Judy Eckert

Dr Hannah McGlade

Chief Judge Julie Wager

Mia Betjeman

Anna Liscia

Justice Gail Archer SC

The Hon Carmel McLure, AC, QC

State Coroner Ros Fogliani

Justice Larissa Strk

Chief Judge Gail Sutherland

Closing statement by Law Society President Jocelyne Boujos

Their Honours Judge Valerie French, Judge Mary Ann Yeats, Judge Antoinette Kennedy, Judge Shauna Deane and Judge Catherine O’Brien - the first five women to serve as judges of the District Court of Western Australia Old Court House Law Museum collection 2010.10

Pioneer women lawyers, Vivienne Payne, Joan Heenan and Shirley Offer (L-R), along with about 500 others on the steps of the Federal Court. Picture: Don Palmer The West Australian. October 19, 1999. Printed with permission.

8 | BRIEF AUGUST 2021

Trailblazing Women of Law in W e s t e r n A u s t r a l ia rest of us. It is to those brave pioneers we are forever indebted. First and foremost, Edith Haynes. The bravest of them all. Edith commenced her articles of clerkship, approved by the Barristers Board of WA in 1900. In 1904 her application to sit the intermediate examination was rejected by the Board, on the grounds that she was not a “person” capable of being admitted under the Legal Practitioners Act 1893 .1 She sought review in the Supreme Court,2 which said:

On Bravery By Clare Thompson, President Women Lawyers of WA Inc.

Bravery (adj):

ready to face danger or pain; showing courage It is often said that we can’t be what we don’t see, hence role models are important in lighting the path, guiding the way, showing us that we can do that thing, be that person, aspire to that position. I was admitted in December 1994. Western Australia’s first female silk, Christine Wheeler, was appointed that same month. Our first woman judge, Antoinette Kennedy, was marking her 10th year on the District Court and had been joined by two more, Mary Ann Yeats and Valerie French. Mary Gaudron was in her 9th year on the High Court of Australia. We had our first, and ironically only, woman State Attorney-General, Cheryl Edwardes. There were several women partners at the law firm I worked at, and Judy Eckert was to become the first woman President of the Law Society in 1995. It seemed to me at the time, naively, the barriers had been broken down, the barricades had all been stormed. Appropriately, we hold all these women in high regard: for their intellectual acumen, their tenacity and perseverance, their diligence and hard work, their kindness to junior lawyers, their willingness to assist, guide and mentor, their generosity of time and spirit. For their bravery. When I think about bravery, the women’s names that particularly come to mind are the names of those women who didn’t have a role model, who couldn’t see that path lit by someone else before them, but who stepped onto the path, lit the flame, and guided the

The idea of women practising in the Supreme Court seems to me quite foreign to the legislation which has prevailed for years past, not only here but in the mother country. In the case of Miss Cave the Lord Chancellor said that he would not create a precedent by deciding in favour of the admission of a woman or vote that she be allowed to be called to the Bar. In the same way I am not prepared myself to create a precedent by allowing the admission of a woman to the Bar of this Court. I think, if the Legislature desired that a woman should be capable of being admitted as a practitioner of this Court, or indeed if the Legislature intended to make women eligible for admission to the Court, that they should have said so in express language, as I believe has been done in New Zealand. In the circumstances, therefore, I think that a woman is not eligible for admission as a legal practitioner of the Court. It is not for us, whatever our opinions may be, to depart from what has always been the established practice both in England and in all the Colonies and in the United States, which have originally derived their law from England. It appears to me that we must also bear in mind that throughout the civilised world, so far as we know, we have not been able to ascertain any instances under the Common Law of the United States which is based on the Common Law of England, or of any instance in England or any British-speaking Colony where the right of women to be admitted to the Bar has ever been suggested. The patronising dismissiveness of the judgment serves as a palpable reminder of our not too distant past. One can only imagine the personal devastation this judgment wrought on Miss Haynes. Next, of course, is the brave, tenacious Edith Cowan, who we particularly celebrate this year. Bravely, she fought for women to be allowed to stand for Parliament in WA, she then stood for election in March 1921, and in doing so became the first Australian woman parliamentarian. She was only the second woman to take her seat in Parliament in the English speaking world, after Lady Astor in 1919.3 She was the only woman member of the State Parliament, working in an extremely hostile environment which was far from

welcoming. For women lawyers, Edith Cowan’s most significant achievement, in a lifetime of quite extraordinary achievement, was her private members bill, the Women’s Legal Status Act, 1923. Its only operative section read: A person shall not be disqualified by sex from the exercise of any public function, or from being appointed to or holding any civil or judicial office or post, or from being admitted and entitled to practice as a practitioner within the meaning of that term in the Legal Practitioners Act 1893, or from entering or assuming or carrying on any other profession, any law or usage to the contrary notwithstanding. Let us not fool ourselves into thinking this enactment was easily achieved. Hansard records that reaction to the bill was predictable, horrifying, and, with the benefit of hindsight, hilarious. The hon. member’s measure asks that no person shall be disqualified because of sex from holding any public position. She further asks that marriage shall be no bar. I do not quite know what she means by that. I wonder what would happen if both husband and wife came into this House! Who would look after the family then. How far is it intended to go?4 But the marriage service should be remembered. Of course I do not know about the ‘Love, honour, and obey.’ I suppose, however, that women, will still obey their husbands if this Bill passes.5 Never before have I brought up in the House anything that concerns me personally, but I can see that quite a large additional expense will be imposed upon the proprietors of newspapers if this Bill be passed. Suppose we had ladies practising in the courts, we should have to employ lady reporters, because I am sure no male reporter could do justice to a lady appearing for a culprit if it were necessary to describe what she was wearing when appearing in the court. To describe dresses requires a somewhat technical knowledge and the court reporter does not learn that part of the business when studying his profession. Mr. Nicholson should spare us this large additional expense by inserting another clause. I am diffident about suggesting one because I am personally interested - so that ladies appearing in court shall be required to dress in male attire. It would be absolutely necessary to do that, because under the Criminal Code a woman who appears in public in male attire is liable to a penalty. If she is to appear in male attire in court, when defending some scoundrel, me must make provision for that in our laws. When a lady becomes a K.C. we might allow her to wear her little frills, knee-britches, silk stockings, and buckled shoes. I hope the hon member will help the newspapers by embodying an amendment covering this.6

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

Pursuing her private member’s bill, in the face of this conduct, took enormous grit and courage. All women admitted as lawyers in Western Australia owe her our thanks. Without her hard work and tenacity, we would be none. A third brave pioneering woman lawyer that comes to mind is Joan Heenan.7 She was one of the first women admitted in the 1930s and one of the first to practice in her own right. After completing her articles in Perth with one of the few firms prepared to take on a female articled clerk, from 1937 she practiced in Kalgoorlie as a partner of the firm Heenan & Heenan. During the war years she was the only permanent lawyer in Kalgoorlie, where her clients were the ordinary folk of Kalgoorlie, no doubt giving them their first experience of meeting a woman lawyer. She later described Kalgoorlie as “a man’s town”. From 1950 to her retirement in 1991, she practiced in Perth, first at EM Heenan & Co, then, after a merger, with Northmore, Hale, Davey & Leake, which later became Minter Ellison. Her career spanned nearly 60 years from articles to retirement and is an extraordinary achievement. She is remembered fondly, and with a sense of awe, by those who worked with her. Mrs Heenan, as she was always known, was a role model for the generations of lawyers who worked and trained with her, and who flourished under her influence. The Heenan name is rightly celebrated in the Western Australian legal profession; Mrs Heenan’s career and influence on the profession is integral to that good name. Her persistence during the war years, with no legal colleagues close by, in the isolation of Kalgoorlie, along with her longevity in the legal profession and her example of returning to work when she was the mother of a young child, are testament to her courage.

Fourthly, Vivien Payne. Mrs Payne emigrated to Perth from the UK in 1963, having been admitted there in 1951. She established a firm in Perth in 1965, practising mainly in family and common law.8 She was also a member of many boards and committees, and in 1980 was appointed as the first woman Legal Aid Commissioner. Mrs Payne’s influence on the WA legal profession is substantial. In two very particular ways she shaped the profession we now belong to: her support for the first women barristers at the independent bar in the 1970s, Valarie French and Antoinette Kennedy, meant that they were able to build careers at the independent bar and in doing so, pave the way, light the path, for those of us who followed them; and her efforts to bring about the establishment of Women Lawyers of WA Inc. including as inaugural President of the organisation in 1982, gave women lawyers in this State a voice of our own, a place at the table. Both of these are enduring legacies and we all benefit from them. The establishment of Women Lawyers of WA Inc. was particularly controversial, with fierce debate in the profession, and on the pages of Brief, as to its role and utility. Mrs Payne showed great courage in standing firm in the face of hostility and pursuing her dream of an organisation dedicated to pursuing the interests of women in the legal profession and women accessing the justice system. In 2022 we will mark the 40th anniversary of the foundation of Women Lawyers of WA Inc. and remember the lasting contribution to our professional lives that Vivien Payne made. In 1999, Women Lawyers of WA Inc. organised a photograph of women in the legal profession. It was an open invitation, and over 500 women joined us on a bright Perth October afternoon, on the steps of the Federal Court. In that photograph there are very many

...she shaped the profession we now belong to: her support for the first women barristers at the independent bar in the 1970s, Valarie French and Antoinette Kennedy, meant that they were able to build careers at the independent bar... significant women in the legal profession, but it is no accident that Joan Heenan and Vivien Payne stand at the very front of the photograph, taking their rightful place as leaders in the profession.9

End notes 1 This is the same Act all lawyers in WA were admitted under prior to 2004 2 In re Edith Haynes (1904) 6 WAR 209 3 Constance Markowitz was elected to the British House of Commons in 1918 but didn’t take up her seat because she was a member of Sinn Fein 4 Hansard 7 November 1923, Assembly 2nd Reading pg 1375 5 Hansard 7 November 1923, Assembly 2nd reading pg 1376 6 Hansard 13 December 1923, Council, pg 2069 7 https://www.womenaustralia.info/lawyers/biogs/ AWE4799b.htm 8 Mrs Payne records that she was required to wear a hat in the Magistrate’s Court, unlike her male colleagues, a particularly ironic requirement in light of the Parliamentary debates extracted above. https://www. womenaustralia.info/lawyers/biogs/AWE5525b.htm 9 The photograph hangs outside the entry to Court 1 in the Old Supreme Court Building

Charter for the Advancement of Women in the WA Legal Profession The Law Society is committed to the advancement of women in the legal profession and has adopted the Charter for the Advancement of Women in the WA Legal Profession (prepared by the Joint Law Society/Women Lawyers Committee). Today, women make up over 50 per cent of the legal profession, and have made significant advances in all areas of practice. However, impediments still remain to the retention and career progression of women in the profession.

10 | BRIEF AUGUST 2021

The Law Society’s Charter for the Advancement of Women is designed to promote and support strategies to retain women in the profession over the course of their careers and encourage and promote the career progression of women into senior executive and management positions. The Charter aims to achieve this by assisting a law practice to develop cultures, and set targets, that promote diversity and inclusion and impact positively on all practitioners in the

workplace, resulting in a better business outcome for the law practice, the legal profession and the community as a whole. The Charter is published on the Law Society’s website here and is also a guide for all Western Australian law firms to use.

This document was developed by the Law Society of New South Wales and adapted by the Law Society of Western Australia to reflect current Western Australian law.

Trailblazing by the Numbers Senior Counsel Appointments 2010 - 2020 0

2010

2011

2012

2013

2014

2016

2017

2018

2019

2020

2015

12 31 28% 72%

TOTAL

Appointment as Senior Counsel is based on eminence in the practice of law, especially in advocacy, unquestioned integrity, availability and independence. A Committee advises the Chief Justice on applications for appointment. Source: Department of Justice website

The Australian Capital Territory, Queensland and Victoria have all had female Chief Justices. The other states and territories have had none.

Chief Justices by State

Judges

Supreme Court Judges With the appointment of Justice Larissa Strk, the number of women that have been appointed to the Supreme Court of Western Australia is now 10.

They are - Wheeler AO QC (1996-2010) McLure AC QC (2001-2016) Johnson (2003-2012) Jenkins (2004-2020) Pritchard JA (2010-present) Banks-Smith J (2016-2018) Archer J (2017-present) Smith J (2018-present) Hill J (2019-present) Strk J (2021-present) Interesting fact: The Supreme Court precinct has an important role in Western Australia’s history. One of the first courthouses in the state was built at this location in 1836. The courthouse - adjacent to the present Supreme Court remains standing and is now used as the Francis Burt Law Education Centre.

(inlcuding a Female Chief Judge)

FEMALE

32 16 16 MALE

TOTAL

District Court - 2021

*As at 30 July 2021

Court of Appeal Judges The Hon Justice Michael John Buss (President) The Hon Justice Graeme Harold Murphy The Hon Justice Robert Anthony Mazza The Hon Justice Robert Mackenzie Mitchell The Hon Justice Andrew Robert Beech The Hon Justice Janine Clare Pritchard The Hon Justice John Cameron Vaughan

6 1

Disclaimer: The information is based on internal research and all reasonable steps have been undertaken to ensure accuracy.

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

Leading the Way

Here we present key moments in the history and progress of women in law in Western Australia

1915 Edith Cowan is the first woman appointed to the Bench in Western Australia as a lay member of the Children’s Court.

1923 In the early 1900s there were no women working professionally in any area of law in Western Australia. By 1928 the University of Western Australia accepted their first cohort of law students, including four women: Margaret Battye, Kathleen Hartrey, Molly Kingston and Enid Russell. Russell became the first woman to be admitted and practice law in Western Australia from 1931, preceded by Alice May Cummings who had been admitted as a practitioner in WA (having previously been admitted in South Australia) from 1930 but never practiced. By 1936, all of these women were practicing law either as sole practitioners, running their own legal firms, or associated with large firms in Perth and overseas in London. Between 1943 and 1954 no women were admitted to practice law in Western Australia. In 1961 there were 13 women to 99 men enrolled in law (8.6% women), which increased to 164 women to 243 men by 1981 (24.8% women). Through concerted advocacy and social change, today’s legal landscape has greatly changed since the early twentieth century, with women now making up the majority of law students. You can learn more about women and the law in Western Australia in the Old Court House Law Museum, open Tuesday to Friday, 10am to 4pm.

12 | BRIEF AUGUST 2021

1899 1900

Women given the right to vote in Western Australia

In 1900, Edith Haynes became the first woman in Western Australia to undertake an Articled Clerkship to train to be a practicing lawyer. When her registration was accepted by the Barristers’ Board she was warned that this was no guarantee for her later acceptance as a legal practitioner. Sure enough, when she was ready to sit the Barristers’ Board exams in 1903, it was decided that she did not qualify as a “person” under the Board’s guidelines and so was ineligible for admission to the bar. The Full court upheld the Board’s decision again Haynes. It was not until 1923, when Edith Cowan MLA sponsored a private member’s bill titled the Women’s Legal Status Act and it was passed through Western Australian Parliament, that this discrimination was removed against women entering the legal profession. Haynes became a leading member of the Australian Women’s National League which, at its peak, was the largest women’s political organization in Australia. Formed in 1904, the League opposed socialism and supported the monarchy, aimed to protect the interests of women and children, and educated women in politics and political movements. As part of the League, Haynes attended as a delegate to conferences convened by Sir Robert Menzies and supported his efforts to found a new political party that later became the Australian Liberal Party.

Edith Cowan presents a private member’s bill which later becomes the Women’s Legal Status Act 1923, allowing women to be admitted to the legal profession on the same terms as men.

1928

Law is taught at the University of Western Australia. The first class of law students includes four women: Margaret Battye, Kathleen Hartrey, Molly Kingston and Enid Russell.

1930

Alice May Cummins is the first woman in Western Australia to be admitted to practice as a legal practitioner.

1931

Enid Marjorie Russell is the first woman in Western Australia to be admitted and practice as a legal practitioner in the jurisdiction and take up practice as a lawyer.

The Women Should Have a Voice Edith Cowan’s legacy of social justice in Western Australia By Toni Church, Museum Curator, Old Court House Law Museum

“The women should have a voice” – Edith Cowan MLA OBE, Inaugural Speech to Western Australian Parliament, 28 July 1921. On 28 July 2021, it will be 100 years since Edith Cowan delivered her inaugural speech to the Western Australian Parliament – the first woman in Australia to do so. Marking this centenary, a new exhibition has been launched at the Old Court House Law Museum focusing on Cowan’s legacy of social justice. “The Women Should Have a Voice”: Edith Cowan’s legacy of social justice in Western Australia commemorates Cowan’s enduring influence in her community, displaying objects loaned by the organisations she established and supported that are still operating in Western Australia today. Edith Dircksey Brown was born on 2 August 1861 at Glengarry, her family’s homestead on a large pastoral station near Geraldton, Western Australia.1 The descendant of prominent colonial Swan River families, Brown and Wittenoom, Edith was raised in a well-regarded family and was sent to boarding school in Perth at the age of seven, after her mother died in childbirth. In 1876, Edith experienced the lifealtering personal tragedy of her father’s hanging after he was found guilty of the murder of Mary Ann Tindall, his wife and Edith’s stepmother. The emotional effect of such violence and the ensuing fight for justice in her early life had a profound influence on Edith Cowan’s later advocacy work.2 On 3 January 1876, Kenneth Brown

shot Tindall, at the culmination of what was later proven to be years of shocking and sustained domestic violence by Brown. Criminal proceedings against Brown commenced from 5 April 1876 before Chief Justice Archibald Paull Burt at the Supreme Court of Western Australia – held in the Old Court House. The trial attracted national attention not only for its shocking content, but also for the rumoured perversion of justice by two hung juries populated by Brown’s influential friends and colleagues.3 The Brown family were wealthy pastoralists, members of whom also served in the ranks of magistrates, and so held power and influence in the colony. Burt’s frustration at this influence culminated in the Chief Justice closing the court at the end of the second trial, selecting members of the jury himself from those in the public gallery before swiftly carrying out the final trial on the same day the former ended: 26 May 1876.4 This third trial jury promptly returned a guilty verdict and Brown received his death sentence.5 On 12 November 1879, Edith Brown married James

Edith Cowan MLA, Member for West Perth, 1922. Courtesy of the State Library of Western Australia 6004B.

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

to Animals in 1892.9 Today the modern RSPCA WA continues to educate and advocate for the prevention of cruelty to animals in the community.10 Cowan was a foundation member of the Children’s Protection Society in 1906, which highlighted the extent of child cruelty and neglect within the community; emphasising that children were victims rather than criminals. This advocacy work was instrumental in establishing the Children’s Court of Western Australia in accordance with the State Children Act 1907.11 Cowan was elected as a Magistrate of the Children’s Court in 1915 and the legacy of her focus on early intervention and rehabilitation continues in the modern work of the Children’s Court of Western Australia.12

Edith Cowan (seated) with Marion Ethel “Ettie” Burt, c.1882-3. Cowan and Burt were members of the St Georges Reading Society, which supported many of the causes for which Cowan is known. Ettie Burt was married to Alfred Earl Burt, son of the first Chief Justice of Western Australia: Archibald Paull Burt. Courtesy of the State Library of Western Australia BA2843/22.

Cowan, a Registrar and Master of the Supreme Court of Western Australia (and the brother of her boarding school headmistress). By 1891 Edith and James had five children, and James had been appointed Perth Police Magistrate.6 The Cowan’s household dynamic was unusually modern, with both parents working outside the home as Edith took an increasingly public role from the 1890s; engaging with social justice causes, establishing various societies and organisations to advocate for change in the wider community. As displayed in the new exhibition at the Old Court House Law Museum, among her many commitments and

14 | BRIEF AUGUST 2021

causes, Edith Cowan worked for over 30 years with the House of Mercy which provided ‘shelter and reformation’ for unmarried mothers from the early 1890s.7 Over a century later this organization has transformed into Ngala; an inclusive and diverse community service organisation, focused on the well-being and development of children and young people across Western Australia.8 Concerned for the welfare of horses, Cowan and fellow female members of the St George’s Reading Society established the Western Australian chapter and objectives of the Royal Society for the Prevention of Cruelty

This ongoing work is represented in the exhibition at the Old Court House Law Museum by this Tree of Life painting. It was painted by detainees at Banksia Hill Detention Centre to commemorate the twentieth anniversary of the Children’s Court of Western Australia Drug Court program in December 2020. The Drug Court, located within the Perth Children’s Court, is aimed at early intervention by breaking the cycle of disadvantage, drug-use and reoffending for young people in Western Australia. Through the provision of therapeutic rehabilitation services, the Drug Court program assists young offenders who are either battling drug addiction or those whose offences relate to drug use (such as stealing to fund the purchase of illicit substances) and provide regular ongoing support for the duration of their engagement with the justice system. Successful participants ‘graduate’ from the Drug Court program with a lesser sentence than a regular remand court, owing to their achievements in rehabilitation and embracing positive steps towards longterm recovery within their community.13 Cowan significantly contributed to the establishment of the King Edward Memorial Hospital for Women in 1916, the first maternity hospital in Western Australia. She served as the Honorary Secretary of the Hospital’s Advisory Committee from 1909, and was later appointed Secretary of the Advisory Board once the Hospital had opened.14 It was most important to Cowan that maternity care within the Hospital was extended to both married and unmarried mothers, regardless of their circumstances.15 Today, King Eddies

Magistrate Andrée Horrigan (left) and Superintendent Michael Heslington (right) photographed with the Tree of Life painting gifted by Banksia Hill Detention Centre for the Drug Court’s twentieth anniversary in December 2020. Courtesy of the Children’s Court of Western Australia.

(as the hospital is colloquially known in Perth) continues as a public hospital for all women in the community; accounting for twenty percent of all births in Western Australia and supporting thousands of premature and unwell newborns in the largest neonatal unit in the southern hemisphere.16 As a foundation member of the Western Australian Historical Society in 1926, Cowan played a prominent role in the state’s centenary celebrations in 1929 and contributed to a number of articles in the Society’s Early Days publication, which highlighted the experiences of early colonial women well before Australian feminist historiography became established from the 1970s.17 Today, the Royal Western Australian Historical Society continues hosting events and advocating for history and heritage across the state, as well as operating a Museum with a unique art collection, extensive reference library and photograph archive for researchers.18 Cowan is most prominently remembered as the first woman elected to a Parliament in Australia. She served as a Member of the Legislative Assembly (MLA) for West Perth, representing the Nationalist Party in the Western Australian Parliament from 1921-24. The election in 1921 was the first in which women were eligible to serve as parliamentarians in Western

Australia. Notably, Cowan was one of four women to run for state Parliament in 1921 but only the second to become a female parliamentarian in the British Empire.19 During her election campaign and parliamentary career, Cowan received public admonishment from newspapers and commentators about the abandonment of her wifely duties at home, as well as from her political colleagues who frequently interrupted her addresses to Parliament.20 In her inaugural speech, Cowan emphasised the necessity which existed for women to support one another and serve in positions of power in Western Australia, stating that “the women should have a voice”.21 Against custom, her inaugural speech was regularly interrupted by her parliamentary colleagues with sexist remarks. When addressing additional costs required to install a women’s toilet in Parliament for her use, Cowan was interrupted by Mr Lambert suggestively asking “Will you invite us to see how the money was spent?”.22 Needless to say, Cowan’s dignity prevailed in this moment and she continued with a speech that foretold her parliamentary service; steadfast dedication to promoting migrant welfare, infant and maternal health centres, and women’s rights.23 Although she unseated the serving Attorney-General with her election in

During her election campaign and parliamentary career, Cowan received public admonishment from newspapers and commentators about the abandonment of her wifely duties at home, as well as from her political colleagues who frequently interrupted her addresses to Parliament. 1921, Cowan was not successful in gaining re-election in 1924. In fact, only three other women were elected to the Western Australian Parliament until 1970.24 On 13 March 2021, Western Australians elected the 100th woman to the state Parliament and, in stark contrast to 1921, about half of the Western Australian Parliament in 2021 are women. Upon her death, aged 70 in 1932, Cowan was remembered as a trailblazing feminist who dedicated her life’s work to the welfare of women and children in her community.25 Her likeness adorns the Australian $50 note, her name was given to Edith Cowan University and her memorial clock-tower stands at the entrance to King’s Park, Perth. Cowan’s legacy is her social justice advocacy; work that

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

is carried on by the organisations and institutions she established across her lifetime which continue to serve the Western Australian community today. “The Women Should Have a Voice”: Edith Cowan’s legacy of social justice in Western Australia is on display at the Old Court House Law Museum until early September 2021. The Museum is open 10.00am to 4.00pm, Tuesday to Friday. Entry is free. Objects courtesy of The Royal Society for the Prevention of Cruelty to Animals Western Australia, Ngala, Children’s Court of Western Australia, Western

Australian Medical Museum, Royal Western Australian Historical Society. Supplementary research about the trial of Kenneth Brown supplied by Dr Alexandra Wallis and Elizabeth BurnsDans.

End notes 1 ‘Place Record: Glengarry’, City of Greater Geraldton Municipal Inventory of Heritage Places, 9 March 2005, https://www.cgg.wa.gov.au/Profiles/cgg/Assets/ ClientData/Document-Centre/Planning/Heritage/ Greenough/Greenough_Heritage_Place_Number165-MCH126990.pdf ; ‘Glengarry Station Complex’, Heritage Council, 31 December 2016, http://inherit. stateheritage.wa.gov.au/Public/Inventory/Details/ e4252b7f-ec8b-4a4c-88cd-815694c35082

2 Clare Wright, ‘Cowan, Edith Dircksey’, The Encyclopedia of Women & Leadership in TwentiethCentury Australia, Australian Women’s Archives Project 2014, https://www.womenaustralia.info/leaders/biogs/ WLE0162b.htm 3 Aidan Kelly, ‘The Search for Kenneth Brown Esq (183776)’, Early Days: Journal of the Royal Western Australian Historical Society, vol 14, part 4, 2015, pp.574-577 4 Burt’s manuscript of directions given to the jury of Brown’s third trial is held in the collection of the Old Court House Law Museum; Old Court House Law Museum collection 1989.33q, p.90 5 Old Court House Law Museum collection 1989.33q, p.128 6 Margaret Brown, ‘Cowan, Edith Dircksey (1961-1932)’, Australian Dictionary of Biography, 1981, https://adb. anu.edu.au/biography/cowan-edith-dircksey-5791 7 Jennie Carter and Bevan Carter, King Eddies: A history of Western Australia’s premier women’s hospital 19162016, King Edward Memorial Hospital Alumni, 2016, p.28; Brown, ‘Cowan, Edith Dircksey (1961-1932)’ 8 Information provided via email by Ngala 9 ‘Our History’, RSPCA WA, https://www.rspcawa.asn. au/about/history.php 10 Information provided via email by RSPCA WA 11 Brown, ‘Cowan, Edith Dircksey (1961-1932)’ 12 Elizabeth Heffernan, ‘Edith Cowan (1861-1932), Royal Australian Historical Society, https://www.rahs.org.au/ edith-cowan-1861-1932/ ; Debra Rosser, ‘Children’s Protection Society (1906-1994?), Find & Connect Web Resource Project for the Commonwealth of Australia , 9 January 2019, https://www.findandconnect.gov.au/ref/ wa/biogs/WE00899b. 13 Information provided via email by Children’s Court of Western Australia 14 Carter and Carter, pp.37-38 15 Carter and Carter, pp.25-26 16 ‘History’, King Edward Memorial Hospital, https://www. kemh.health.wa.gov.au/About-us/History 17 ‘Edith Dircksey Cowan’, Members Biographical Register, Parliament of Western Australia, https://parliament.wa.gov.au/parliament/ Library/MPHistoricalData.nsf/ LookupName/ 80E6430BA5F9A78648 577E50028A58 8?opendocument 18 Jack Honniball, ‘Royal Western Australian Historical Society: Three Score Years and Ten’, Royal Western Australian Historical Society Newsletter, October 1996, https://www.histwest.org.au/brief-history ; ‘The Society’, Royal Western Australian Historical Society, https://www.histwest.org.au/society 19 ‘Defining Moments: Edith Cowan’, National Museum of Australia, 9 April 2021, https://www.nma.gov.au/ defining-moments/resources/edith-cowan 20 Defining Moments: Edith Cowan’, National Museum of Australia 21 ‘Inaugural Speech: Mrs Edith Dircksey Cowan, MLA (Member for West Perth)’, Parliament of Western Australia, 28 July 1921 https://www.parliament.wa.gov. au/parliament/library/MPHistoricalData.nsf/32e457f9ba 32e457f9ba7d7c5148257b5500242416/ 80e6430ba5f9 786482577e50028a588 /$FILE/Cowan,%20Edith%20 Dircksey,%20Inaugural%20Speech.pdf, p.1-4 22 ‘Inaugural Speech: Mrs Edith Dircksey Cowan, MLA (Member for West Perth)’, p.2 23 Brown, ‘Cowan, Edith Dircksey (1961-1932)’ 24 Defining Moments: Edith Cowan’, National Museum of Australia 25 ‘Cowan, Edith Dircksey’, The Bicentennial Dictionary of Western Australians pre-1829-1888, vol 1, Rica Erickson (ed), University of Western Australia Press, Nedlands, 1987, p.684

‘The New “House” Wife’, The Bulletin, 31 March 1921. Courtesy of the National Library of Australia.

16 | BRIEF AUGUST 2021

1933 Margaret Battye, Kathleen Hartrey, Molly Kingston and Sheila McClemans are admitted to practice and all practice as legal practitioners. Margaret Battye

Sheila McClemans and Molly Kingston

Margaret Battye was one of only four women in the first cohort of law students at the University of Western Australia in 1928. She was admitted to practice in 1933, and in June of that year became the first woman to represent a client in a Western Australian court - and won! Battye was commended by the presiding magistrate and opposing lawyer for the manner in which she conducted the brief. From 1936 she practiced as a barrister and solicitor on her own, before taking a position with the Council for Civil Liberties from 1939.

Sheila McClemans and Molly Kingston were also admitted in 1933, but found difficulty gaining sufficient employment due, in part, to their gender and the economic downturn of the Great Depression. In 1934, the two established their own practicing partnership focused on helping women with their legal problems; Kingston & McClemans was the first all-female legal firm in Western Australia. The partners disbanded after four years, after which both McClemans and Kingston joined the armed forces during World War Two.

Battye was a staunch supporter and advocate for women. She worked to establish a university women’s college (now St Catherine’s College, UWA); acted as honorary legal advisor to the Women’s Service Guilds; guided the establishment of the Perth-based Business and Professional Women’s Club and was the organisation’s first president; as well as being an active member (and president) of both the Karrakatta and Soroptimists’ Clubs, and chaired the Australian national committee for the United Nations Commission on the Status of Women.

Following her service in the Women’s Royal Australian Naval Service McClemans returned to practice in Western Australia. She then ran her own business before serving for 10 years as Secretary of the Law Society from 1960. McClemans retired from private practice in 1981. Kingston continued her legal careers in Sydney and Melbourne after her wartime service with the Women’s Auxiliary Australian Air Force and Royal Australian Air Force. She practiced primarily in Family Law, before being admitted to the Victorian bar in 1962 where she combined her practice with lecturing at both the University of Melbourne and the Royal Melbourne Institute of Technology.

Right: Margaret Battye, Above: Sheila McClemans and Molly Kingston Old Court House Law Museum collection 1987.27a-c

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

Leading the Way

1975 Valerie French is the first woman to elect to practise as a barrister in Western Australia – she is followed very shortly thereafter by Antoinette Kennedy.

1981 Vivien Edwards is appointed Western Australia’s first female prosecutor.

The District Court commenced on 1 April 1970 following Parliamentary proclamation of the District Court of Western Australia Act 1969 on 26 March 1970. Fifteen years later her Honour Antoinette Kennedy would be appointed to the Bench as a judge (later to become Chief Judge).

18 | BRIEF AUGUST 2021

1985

Carolyn Martin is appointed as the first female Stipendiary Magistrate in Western Australia (later appointed to the Family Court). Antoinette Kennedy is appointed to the Bench of the District Court of Western Australia as a judge (later to become Chief Judge). She was the first and longest serving woman judge in Western Australia, serving for 25 years.

The Interviews it we would get nowhere. I think we have been proven right and I admire what it has developed into. As an aside, the first President was Vivian Payne, a remarkable woman, the wife of the then Dean of the Law School, who had come from England with him and set up her own practice in Perth. I think she was stunned by how far women were behind in Perth.

Her Honour Antoinette Kennedy, AO First woman and longest serving judge in Western Australia Her Honour Antoinette Kennedy AO was the first woman and longest serving judge in Western Australia, serving for 25 years. Her Honour Kennedy was the first woman head of a jurisdiction, and only the third in Australia, when she was appointed Chief Judge of the District Court where she served for 6 years. She was made an Officer in the Order of Australia (AO) and was elected to the WA Women’s Hall of Fame. Her Honour Kennedy was a member of Murdoch University Senate for six years, founding member of the Women Lawyers of Western Australia, member of the Chief Justice’s Gender Bias Taskforce, and a mentor in the Law Society of Western Australia program for young lawyers. She retired from the law in 2010.

Why did your Honour choose law? I wanted something to aim for which I didn’t think I’d get with a general degree. My grandfather was the local court Bailiff (at the time when it was a private contract) and my mother worked in his office. She used to tell me admiring stories about Sheila McClemans (the first woman to appear in the Supreme Court) and that influenced me as well. Sheila was a wonderful woman and still in practice when I started. The first words she ever said to me were “we women must stick together”.

Your Honour was the first woman to be appointed a judge of the District Court. Tell us more. Being a founding member and the first Vice President of the Women Lawyers of Western Australia, there was considerable opposition at the time from both men and women, but we pushed on. It was an idea whose time had come. We had a real sense without

The other matter is reducing the waiting time for trial in the Court from 76 weeks and going north to 21 weeks and going south. I realise that this will cause groans from the profession. About 2 years before I became Chief, I presided over a trial when a young woman witness, an innocent bystander, burst into tears and sobbed, “I’ve had this hanging over my head for two years.” I thought then this is a structured form of violence I don’t want to be part of. Everyone, even lawyers, are better off if matters are dealt with expeditiously. I knew it would make me unpopular, I had been in the law for 40 years, but popularity is fickle and transitory, so I was prepared for that.

What motivated your Honour to achieve so much in your career? When I was young, women didn’t set goals for themselves. I always felt as though I was on a moving travelator, and I simply moved with it.

What are the challenges of being a judge? For me it was obeying my oath to do justice... without fear or favour, affection or ill will. In about the first ten years of my time as a judge, the media including “Shock Jocks” and a whole range of other people wanted me to disobey my oath and do what was popular. When I took my oath, it didn’t have anything in it about being popular, so I refused but the pressure was enormous.

Does your Honour have any anecdotes about the legal profession? Yes, but I don’t think it would be politic for me to repeat them. I do acknowledge the camaraderie on the Court in the six years I was Chief, some of my colleagues were very amusing and Friday night drinks were usually lots of fun.

Does your Honour think there has been any progress for women over the years? Plainly there has been. It was seven years between my appointment and the next woman appointed to the court. I have always thought of that and the attacks on me as a valiant effort to keep women out, but since then there have been a number of appointments. The Family and District Courts both have heads who are women, the DPP is a woman and there are many women with leading roles in many legal firms. Nevertheless, there is still much to do. Consciousness raising remains important. It continues to be the case that different standards are applied to women than to men and this must be watched. The

Historical photos of Her Honour Antoinette Kennedy courtesy of Old Court House Law Museum collection 1991.59a-b

easiest test is to ask yourself what would have been said if it were a man and not a woman who had done the thing or spoken the words being criticised. We must also be alert to “ Gaslighting”. Not necessarily in the extreme sense it is used in Domestic Violence but enough to cause damage to reputation or credibility. That is, that what the woman is saying or protesting about is not correct, she is emotional or suffering from some type of illness.

If your Honour could change one law in WA, what would it be? I would introduce the range of laws necessary to put in place justice reinvestment. That is to take some money from prisons and use it to invest in social issues that cause people to offend. This is not alternative penalties; it is to get to people before they offend and who come from areas where there is a high rate of offending. Several years ago, the police introduced a part scheme which was highly effective, but it needs to be across several departments of Government to have the most effect and it is important to stop sabotage on the ground by front line workers who don’t think the recipients are worthy.

Advice to young lawyers Build up your self esteem. The difference between being assertive or being aggressive is self esteem. Since the law is adversarial you will lose cases; you must be able to deal with that without beating yourself up and convincing yourself that you are hopeless and not meant for this career. The best way to deal with defeat is shown to us, frequently on sports news when young swimmers or athletes, who have just lost a race, and some insensitive journalist sticks a microphone in their face, about the defeat. It is clear that some of them have spent time with sports psychologists. They don’t beat themselves up, they talk about what they have learnt and how they will improve in the future. Clearly, they are being taught that good can come from defeat if they handle it properly. As the Dalai Lama said, “If you lose, don’t lose the lesson.” But remember you can’t make a silk purse out of a sow’s ear. If your client is in the wrong, there is nothing you can do about that. You’re a lawyer not a miracle worker.

Advice to older lawyers Be kind. Neither an erring colleague nor an offender is an Amalekite to be smite hip and thigh.

Top three books Any book on Legal History. I was well into my career before I realised that if I wanted to know why I was doing what I was doing, I needed greater knowledge of Legal History. G.K. Chesterton advised not to take down a gate until you know why it was put up in the first place. You need history for that. Outside the law, I have recently read a couple of books by Barack Obama, he is a truly gifted writer, and the books are fascinating.

Life lessons Have more fun and develop your spirituality.

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

the running of their business before you get to the court stage. When I started my own small legal practice in Wangara, I set about helping small businesses.

Leading the Way

1987 Deborah Bennett-Borlase is appointed the first female Magistrate in Western Australia.

1993

Cheryl Edwardes AM is the first woman Attorney-General of Western Australia. Jane Thompson became the first woman to be appointed CEO of the Legal Practice Board of Western Australia (formerly the Barristers’ Board).

What do you regard as the proudest achievement of your career? Recently I have been involved with providing pro bono legal services to Grandparents Rearing Grandchildren with HHG Legal. Amazing group of people who instead of looking at retirement take on parental responsibility to a grandchild or grandchildren because their parents are unable to do so. I am now assisting HHG to coordinate their Giving Back program providing pro bono legal advice or support services to charitable organisations.

The Hon Cheryl Edwardes, AM First woman Attorney-General of Western Australia Admitted to legal practice in 1984, Cheryl Edwardes predominantly practiced in the areas of corporate law until she moved into politics in 1989. Ms Edwardes was elected to the Western Australian Legislative Assembly as the Liberal member for Kingsley. She was immediately promoted to the front bench as Shadow Minister for Education and remained a senior front-bencher for the rest of her career, including serving as the first woman Attorney-General of Western Australia from 1993 to 1995, Family and Services Minister from 1995 to 1997, and Environment Minister from 1997 to 2001. Following her retirement from politics in 2005, Ms Edwardes returned to private practice for a few more years before taking on a number of operational, advisory and Directorship roles in the WA mining industry. Ms Edwardes was awarded an Order of Australia in the Queen’s Birthday Honours 2016 for “significant service to the people and Parliament of Western Australia; to the law and to the environment; and through executive roles with business, education and community organisations”.

Why did you choose to study law? Curiosity and I mean that in the most literal way. The law impacts people’s lives daily in so many ways and that triggered my commitment to helping people. My interest manifested in determining a need to help people and small businesses. Sitting in the back of a court one day, I saw a cross examination of a small business person who could have received a lot more assistance in

20 | BRIEF AUGUST 2021

One of the areas I have been involved in has been in supporting Victims of Crime. As Attorney-General I brought in the first Victims of Crime Act and then for Jim McGinty when he was Attorney-General I chaired the Victims of Crime Advisory Group. One of the members of this group was Ann O’Neill, a survivor of a horrific crime who turned her life into helping others by establishing AngelHands. I am an Ambassador for AngelHands.

What motivated you to achieve so much in your career? I never start from the premise of self-doubt. I see opportunities as challenges. I have been very fortunate in the opportunities that have presented themselves.

What are the challenges of being in a top leadership position that the public doesn’t necessarily see? Decision making after a whole lot of listening.

Are there any memorable roles that you have been involved in? Working with the Hon Cheryl Edwardes, AM Minister on 22 October 2018. I will never forget the stories that the survivors shared. As the Member for Kingsley, helping the boys get home from Bali after the bombing and the families of those boys who had died. Assisting with counselling, fundraising and the little things that became big issues that they couldn’t deal with. It was a time of a community coming together and supporting those who needed it.

Do you think much progress has been made in recent years with women having equal opportunities for top leadership positions as their male counterparts? It was interesting to note that in 2020 there are more women lawyers in WA than male lawyers. Yet the total number of female partners in top law firms only passed 30% in 2020. There has been a huge push to increase diversity on Boards. Yet, at 30 June 2021, the

proportion of women is only at 27.5% for All Ordinaries but in 2021 women comprised 44.3% of new appointments to the All Ords. However, 81 Boards in the All Ords still do not have any women.

applied for the position advertised for a legal officer to assist the Secretary of the Barristers’ Board. I was delighted that the call was to advise me that my application for the position at the then Barristers’ Board was successful.

Still some way to go.

At that time the administrative structure of the legal profession of WA was unclear to the public and to many practitioners. The Legal Practitioners’ Act 1893 had been the subject of discussion for amendment for some 10 years, when, in its 100th year of operation it was reorganised with all agreeing that the complaints and disciplinary process vested in the Barristers’ Board by the Supreme Court should be restructured. The Barristers’ Board had been the statutory admitting authority for the profession and all administrative matters including disciplinary matters. The name Barristers’ Board was misleading as the profession in WA was fused thus all were admitted as barristers and solicitors (and in my day proctors) of the Supreme Court. This meant complaints were usually made to the Law Society in the first instance, and if not solved, the Law Society was empowered to refer matters to the Board. In my role as Legal Officer at the Law Society I had been at the front line of dealing with clients’ complaints about the profession and understood that this would be a great part of the position for which I had applied at the Board but with the advantage of statutory authority.

What advice would you like to give to junior legal professionals? Work hard and be open to every opportunity that comes your way. Consistently challenge yourself and embark on a pathway of continuous learning.

What message would you like to give to senior legal professionals? Mentor and invest in the junior legal professionals. You are the key to the longterm development of the profession.

What top three books could you recommend to our readers? Henry Kissinger on China provides an important insight to understanding of contemporary China. Cancel Culture edited by Dr. Kevin Donnelly provides an interesting narrative on how the education institutions have played a role in influencing young people’s views. Sometimes for better or for worse. Duty by Robert M Gates provides an insightful understanding of the relationship between the US bureaucracy and the Executive. Robert Gates served several Presidents of both political persuasions and was considered to be a truly professional Secretary of Defence who cared for the men and women he was responsible for providing lessons for Australia.

Life lessons My mother’s saying and her mother’s before her was: “There is nothing you cannot do if you set your mind to it’’. I have lived and worked taking opportunities that come my way. I would also add respect other people’s views. It seems to be in short supply today.

Jane Thompson (nee Stimson) The first women to be appointed CEO of the Legal Practice Board of Western Australia Jane Thompson graduated from Law at The University of Western Australia in 1963. She was admitted to the Supreme Court of Western Australia and the High Court in 1965. Commencing her career as a solicitor at Parker & Parker, she then worked for West Australian Petroleum Pty Ltd (WAPET) in 1966 in the days soon after Barrow Island’s first oil field was established. Ms Thompson worked as a Legal Officer at the Law Society of Western Australia from 1987 to 1990 before joining the Legal Practice Board of WA (formerly the Barristers’ Board of WA) in 1991. Ms Thompson was CEO/Secretary at the Legal Practice Board from 1993 to 2001. During that time, she was also Registrar of the Legal Practitioners’ Disciplinary Tribunal and sat on the Parole Board of Western Australia as a Legal Member from 1996 to 2005.

Reflections by Jane Thompson, who has been a member of the Law Society since her admittance date in 1965: I am delighted to be included in this feature article in the Law Society’s Brief. To be honest, I did not ever consider myself blazing any trails, just fortunate to enjoy a career which complemented what I wanted to do. Having sampled practice in large firms (Parker & Parker) and smaller firms and the corporate world of oil and gas, I reached the conclusion that I would like to work at the interface of public and profession, where the public had different views of what the profession could do for them. I was on the other side of the world with the family in Boston, Massachusetts at the beginning of 1991, when I received a call from The Hon Kevin Parker AO QC , the then Solicitor General. I was surprised by the call and I did not realise the connection immediately. Before going on leave, I had

With the amendments to the Legal Practitioners’ Act, in 1993, I became the CEO of the Legal Practice Board (formerly the Barristers’ Board) and the Solicitor General, The Hon. Kevin Parker AO, QC became chairman. I was also appointed Registrar of the Legal Practitioners’ Disciplinary Tribunal. Under the new provisions of the Act, it had been decided that we would be in a separate office building from the Legal Practitioners’ Complaints Committee to be managed by Diane Howell, the previous Secretary of the Barristers’ Board. Also the Disciplinary Tribunal and the Complaints Committee included lay representatives for the first time. I was not the first woman to be involved in the administration of the profession as Sheila McClemans had been in charge of the Law Society for many years in the 1960s and Jackie Musk and Diane Howell preceded me when they each had been appointed as the Secretary to the Barristers’ Board. Another first in my professional life was to move the admission of our daughter Alexandrea Jane Thompson to the Supreme Court. We are the first mother and daughter in WA both graduating from UWA, to be admitted to the Supreme Court of WA (albeit 30 years after my own admission). Certainly, there had been fathers and sons and daughters admitted before, but it was a proud moment for our family and for me to be able to move Alexandrea’s admission. I was very happy in the years of my legal career and after those years have since kept busy with my husband and family managing our vineyard at Margaret River and supporting my husband, Peter, in his cardiology practice.

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

worked as an orderly after he retired from the navy, opined that being a solicitor would be “a nice quiet job” for a woman, so I settled on law. Luckily, my first contracts and torts lectures were fascinating, so I stayed.

Leading the Way

1994 Christine Wheeler AO, QC is the first woman in Western Australia to be appointed Queen’s Counsel – this is the same year she joined the Independent Bar.

1995

Judy Eckert is the first woman to be elected President of the Law Society of Western Australia. Since then, half of the Presidents of the Law Society have been women.

What is your proudest achievement? I’ve been told by some younger women that my visibility in taking silk and in being appointed to the bench, and in discussing ways of dealing with the obstacles led them to revise upwards their own ambitions. As a career achievement, that is hard to quantify but nevertheless probably the thing I am most proud to reflect on.

What motivated you?

The Hon Christine Wheeler, AO, QC The first woman in Western Australia to be appointed Queen’s Counsel The Honourable Christine Wheeler A O, QC was admitted as a legal practitioner in 1980. She served as an Assistant Crown Solicitor from 1984 to 1988, heading the Policy and Law Reform Unit. From 1988 to 1994 she held the positions of Senior Assistant Crown Solicitor and Senior Assistant Crown Counsel. In 1994, she became the first woman in Western Australia to be appointed as a Queen’s Counsel. The Hon Wheeler sat as a Commissioner in the District and Supreme Courts of Western Australia in 1995 and 1996 and was appointed to the bench on 30 October 1996, becoming the first female Judge of the Supreme Court of Western Australia. From 2005 to 2010, she was an inaugural judge of the Court of Appeal. She retired from the Supreme Court on 25 February 2010. Outside law, the Hon Wheeler was Pro-Chancellor of UWA from 2001 to 2005. She was made an Officer of the Order of Australia in the 2013 Australia Day Honours.

Why did your Honour choose law? Choosing to study law was a process of elimination. I was reasonable at maths and science at school, but better at languages. I had thought I would like to be a geologist, but when the school careers officer discouraged that idea (“No ladies’ toilets! And working with all those men! Not possible.”), I took the non-science stream for the last two years. I discovered too late that, although I loved biology, I couldn’t do it at Uni without advanced maths and chemistry. Finally, a High Court justice, for whom my grandfather

22 | BRIEF AUGUST 2021

I wasn’t so much motivated to achieve, as to keep up. When I first started working, I had the very good fortune of spending a fair bit of time assisting in the High Court. However, the standard of advocacy there was very high, and for some time I thought that this was a standard that everyone in the profession met. Study after study suggests women believe academic and professional standards to be higher than they are, but I had some grounds for my mistake. By the time I realised this was far from the case, my work habits had been formed.

What are the challenges of being a judge that the public doesn’t necessarily see? To remember and respect the importance of each case to the parties, even when it seems to be yet another bog-standard case of its type. Being patient with repetitive and ill-prepared counsel is another, and both of these often become more, rather than less, difficult with time. While “querulant” (obsessive and irrational) litigants are a challenge to all those who encounter them, I think the public would be surprised by the burden they impose on the courts-in money, time, and emotional reserves- and they all end up, repeatedly, before the same few registrars and judges of appeal.

Has much progress been made for women having equal opportunities? There has been much progress, but there is room to improve. The obvious illustration is the clip I watched this morning of the Queensland Premier, Annastacia Palaszczuk, a woman who holds an important leadership position, having to be tactful with John Coates (who was very patronising). It reminded me of the occasional male counsel who thought I would decide in his favour if he spoke loudly over me and waggled his finger at me.

How has legislation in WA developed over the years in comparison with other States and Territories? Legislation goes in cycles in most states, I think. In all jurisdictions there is often a focus on passing legislation rather than providing structures and resources to deal with a problem. So, for example, youth crime is dealt with by expanding police powers and providing for more severe sentencing, or it is

thought that new laws may finally solve the problem of domestic violence, or more bits are grafted on to the corporations law. All these are doomed to fail, so the cycle continues. At some times in the ‘80s and ‘90s, though, it seemed to me that WA was rather better than many other jurisdictions at thoughtful, practical - even properly resourced - reform, which was not taken up elsewhere simply because other jurisdictions never thought to look west. I have wondered if that advantage has gradually been eroded.

What advice can your Honour offer to young legal practitioners?

If your Honour could now change one law in WA, what would it be? While I had a few candidates, as a single important change to the law it is hard to go past current calls for a substantial increase in the age of criminal responsibility. During the whole of my legal career, it has been blindingly obvious to me and to anyone who encounters either child offenders or child victims of crime that we are failing many children in our community. Such a reform would at least ensure that the state does less harm.

Advice to senior legal professionals? Mentor and invest in the junior legal professionals. You are the key to the longterm development of the profession.

What top three books could your Honour recommend to our readers? So hard to choose! In the last 12 months, I’ve enjoyed: A Gentleman in Moscow by Amor Towles (novel) Too Much Lip by Melissa Lucashenko (novel) Inhaling the Mahatma by Christopher Kremmer (essay/memoir)

Life lessons It is true that I worked reasonably hard and made the most of my opportunities. It is also true that most of those opportunities were pure luck. I have never forgotten that “...the race is not to the swift, nor the battle to the strong...but time and chance happeneth to them all”; I have found this either humbling or consoling, depending on the circumstances. Sinclair Lewis is little read these days, though in 1930 he won the Nobel prize for literature. In his novel Main Street one of the characters suggests that the most important work any of us can do is “to keep on looking at one thing after another ... and ask why it is, and who first laid down the law that it had to be that way.” Precedent and predictability are important, in law and in life. However, I am glad that I didn’t take the nice quiet life which was considered appropriate for women of my day, and the times in my career at which I was happiest involved either law reform, or advocacy or decisions which asked and tried to answer the “why” questions.

Her Honour Judy Eckert The first woman to serve as President of the Law Society of Western Australia A graduate of the University of Western Australia Faculty of Law, her Honour Judy Eckert was the first woman to serve as president of the Law Society of Western Australia (1995-6). She was admitted as a legal practitioner in 1981 after completing her articles with Northmore, Hale, Davey and Leake (now Minter Ellison). In 1986, only four years after her admission, she became that firm’s first female partner. In 1991, her Honour joined the WA Crown Solicitor’s Office, where she practised for eleven years and where she conducted a major review of the WA Legal Aid Commission. She joined the WA bar in 2002, the year she was also made a Life Member of the Law Society of Western Australia. In 2005 she was appointed a Judge of the District Court of Western Australia as a prelude to her appointment as Deputy President of the State Administrative Tribunal (SAT), sitting in the Human Rights stream. Her Honour played a significant role in drafting the SAT legislation package which, at the time, was the largest piece of legislation ever to pass the WA parliament. In 2011, ill health led to her Honour’s early retirement.

Reflections on her career path and the legal profession: I fell into law as a natural progression from my interests. During high school, I was very politically involved and invested in social welfare and justice. I had a teacher who provided great mentorship to me, and made me interested in world issues, politics and social justice – and importantly, gave me confidence in my intellectual abilities and made me believe in myself. At that time, I was at boarding school and vividly remember going home for the holidays

1. Write short, sharp sentences – understand how to write, write clearly, give law a good name. 2. Get involved in the Law Society – it is really important to foster collegiality within the legal profession. This is where you socialise, meet different people and network. 3. Be good to other people whether they are clients or a person on the street. 4. Go and travel! When I was young, I left the law for two years to go travelling throughout Australia. This was an eye-opening experience and one of my fondest memories was working in a bookshop in Darwin!

and discussing economics with my father and family at the dinner table. We enjoyed discussing world economics and listening to the federal budget, and I became fascinated by the impact it had on people. Through that, I realised how few rights people had and wanted to do something about it. My father, who was a minister in religion, often invited visitors to come stay at our home. My father and I would partake in lively conversations about world issues around the dinner table with his visitors, and I think I was influenced by all these different perspectives, which expanded my thinking and understanding of the world. Looking back at my childhood and upbringing, I was fortunate to grow up in a loving family and have people in my life who provided valuable mentorship to me, shaping my views and my life. My father was the most important role model and mentor in my life. As mentioned before, I also had a teacher in secondary school whose mentorship encouraged me to learn and become interested in the world and develop my critical thinking. We often do not realise the impact others can have on our lives, how our own lives can be shaped by others. I would therefore encourage members of the legal profession to take up opportunities for mentorship – whether as a mentee or mentor. One of my proudest achievements was showing that there was a place for women in law. We were different to men, but I did not have to take on male characteristics to succeed in law. Today, women still face various challenges, especially when raising a young family. I think that law firms need to accept that it will cost a lot more in the long run if mothers are not given sufficient maternity leave and time with their family. Essentially, work/life balance issues are not “women’s issues”, but “management issues”.

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

Leading the Way

1996 Christine Wheeler QC is the first woman appointed to the Bench of the Supreme Court of Western Australia. Carolyn Martin is the first woman appointed to the Bench of the Family Court in Western Australia. Hannah McGlade appointed as the first female Nyungar lawyer in WA. She was the first Aboriginal person to graduate from Murdoch University; she was also the first Aboriginal woman to graduate from a Western Australian law school when she graduated LLB (Murdoch) in 1995. She was admitted as a Solicitor and Barrister of the Supreme Court of Western Australia in 1996.

2000 Diana Bryant is appointed the inaugural Chief Federal Magistrate (and so the first woman to be appointed to that position) and is the first Western Australian woman (we acknowledge that Victoria claims her too) to head the jurisdiction of any Australian Federal court.

2004

Antoinette Kennedy is the first woman to be appointed as Chief Judge of the District Court of Western Australia and is the first woman to head the jurisdiction of any court in Western Australia.

Dr Hannah McGlade

what had been wrongfully done to Noongar people. Law seemed to give that possibility, of justice and the recognition of Indigenous people’s rights.

The first Aboriginal person to graduate from Murdoch University, also the first Aboriginal woman to graduate from a Western Australian law school

What is your proudest achievement?

Dr Hannah McGlade is a Nyungar human rights lawyer and academic who has published widely on many aspects of Aboriginal legal issues, especially those affecting the lives of Aboriginal women and children. As the first Aboriginal person to graduate from Murdoch University, she was also the first Aboriginal woman to graduate from a Western Australian law school when she graduated in 1995. McGlade was admitted as a Solicitor and Barrister of the Supreme Court of Western Australia in 1996. Her advocacy work led in 2013 to the establishment of the first ever service in Perth for Aboriginal victims of domestic violence. She also established, as CEO of Aboriginal Family Law Services, the first regional state-wide Aboriginal family violence prevention legal service (FVPLS) in WA. In July 2016, Hannah was appointed as a Senior Indigenous Research Fellow at Curtin University. In that same year, she was also the 2016 Senior Indigenous Fellow of the United Nations Office of the High Commissioner for Human Rights in Geneva. In 2020, she was awarded the Churchill Fellowship.

Why did you choose law? I knew what had happened to Aboriginal people and had hope that law would offer justice, bring change, and address

24 | BRIEF AUGUST 2021

My Ph.D thesis received the Stanner award for excellence in Aboriginal research, a prestigious award that included a book publication ‘Our Greatest Challenge, Aboriginal children and human rights’ by Aboriginal Studies Press. A study on violence and sexual abuse, of racism and the courts, the way the colonial ongoing violence and discrimination is also gendered and based on abuse of power. It’s had a great impact across the country, including with Aboriginal girls. That’s important to me.

What motivated you? Growing up I was told that being Aboriginal meant I was less than white people, I experienced this through law school and even today as an Aboriginal woman with three degrees, the lack of respect and underlying prejudice is still quite pervasive. I know the extent of abuse that Aboriginal people continue to experience, being grounded in my community, and that has driven me to achieve for other people. We are a collective culture, not an individualistic culture, we must care for each other and our future generations. I come from a proud people who experienced dispossession, assimilation and even genocide. This cannot be forgotten.

What are the challenges of being a human rights activist and changemaker of society that the public doesn’t necessarily see? Unfortunately, there is a great deal of rhetoric regarding human rights with governments and politicians refusing to recognise Aboriginal people’s inherent rights, such as those in the UN Declaration on the Rights of Indigenous Peoples. Across the world human rights defenders are punished for their work, in some counties

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

they are murdered, Australia is a democratic country but still not willing to genuinely respect Aboriginal people’s human rights so that puts me at odds with governments and there’s a continual tension at play that can be very tiring.

advised and repeal the mandatory detention laws. We have the highest rate of Aboriginal imprisonment, and deaths in custody some 30 years after the Royal Commission into Aboriginal Deaths in Custody and these laws are very wrong.

What top three books could you recommend to our readers?

Are there any memorable cases that you have been involved in?

What advice would you like to give to junior legal professionals?

Just Mercy by Brian Stevenson

I have supported many race discrimination cases since graduating, my own case McGlade v Lightfoot was the first successful finding of race vilification under the new federal prohibition and section 18C of the RDA (1975). More recently I supported the release of an Aboriginal woman who had been wrongfully convicted of murder by the Supreme Court of WA, her name is Jody Gore and she should never have been convicted. Jody spent four years in a maximum-security women’s prison and was released by the Attorney General as it was clear there had been a miscarriage of justice.

Learn about human rights; it may not be a career pathway but increased awareness in the legal profession would make this a better country.

Do you think much progress has been made in recent years with women having equal opportunities for top leadership positions as their male counterparts? Aboriginal women are in no way regarded as equal to non-Aboriginal women. I’m reading a great book now called Caste by Isobel Wilkerson – quite a brilliant analysis of US race relations and the unacknowledged caste system that’s pervasive and highly damaging to Black people. It’s clear that we have an unacknowledged caste system in Australia. My mother also grew up under the segregation laws and the shadow of the Native Welfare Act 1905 that was said to have been borrowed from South Africa. Aboriginal women do not have the opportunities that present to White women, and white women can also be very racist to Indigenous women.

How do you think legislation in WA has developed over the years in comparison with other Australian States and Territories? We have failed to make good progress in relation to Aboriginal people; at this moment we have laws concerning Aboriginal heritage and child protection that need urgent improvement, but the amendments proposed are being rejected by Aboriginal people across the state. Government is not listening and adopting a paternalistic position to Indigenous people. We want to see laws reflect international human rights standards and I have requested the UN Expert mechanism on the Rights of Indigenous Peoples to intervene for that reason. Our children and our land are integral to our identity as Indigenous people and laws that facilitate abuse of human rights are not acceptable.

If you could now change one law in WA, what would it be? That’s a very hard call; I would do as the UN Committee on Race Discrimination has long

What message would you like to give to senior legal professionals? We need to see leadership in our state when it comes to Aboriginal justice issues. Can you be a part of that future with us?

Caste by Isabel Wilkerson Farmers or Hunter Gatherers? By Peter Sutton and Keryn Walshe

All are brilliant reads.

Life Lessons I’ve had so many put downs and knock backs as an Aboriginal woman, but resiliency and the power of positive thinking have done wonders in my life. I’m really hoping I can study the Sami parliaments before 2023 with the COVID situation, so I guess for younger people I’d say, ‘Always believe in you and your future.’

Solicitors Profile Number of solicitors nationally and by state

53% 47%

Since 2011, the number of female solicitors has increased by 67%, while the number of male solicitors has increased by only 26%. The legal profession continues to be comprised of more female solicitors (53%) than male solicitors (47%). This is consistent across all states and territories. 2016 was the first year with an equal distribution of genders amongst solicitors (50% each). The Northern Territory and Australian Capital Territory have the largest percentage of female solicitors (61% and 60% respectively).

As at October 2020, there were 83,643 practising solicitors in Australia. The largest proportion of solicitors were registered in New South Wales (43%), followed by Victoria (25%) and Queensland (16%). Gender: In 2020 the legal profession comprised a greater proportion of female solicitors (53%) than male solicitors (47%) nationally. This trend was first observed in 2018 and reflects the greater number of female solicitors entering the profession compared to male solicitors (+67% compared to +26%) since 2011. The 2020 National Profile of Solicitors in Australia was released in July on behalf of the Conference of Law Societies. 25

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

Leading the Way

2005 Gillian Braddock SC is the first woman to be President of the WA Bar Association. Ros Fogliani is appointed Commonwealth Deputy Director of Public Prosecutions in WA and is the first woman appointed to head up a law enforcement agency in Western Australia. Julie Wager is appointed as the first (inaugural) Magistrate of the WA Drug Court. Christine Wheeler QC and Carmel McLure QC are appointed to and are founding members of the Court of Appeal of the Supreme Court of Western Australia.

Chief Judge Julie Wager The first (inaugural) Magistrate of the WA Drug Court Julie Wager was admitted as a legal practitioner in 1986. She was a criminal lawyer for 14 years before being appointed as the inaugural Magistrate of the WA Drug Court in 2000. Her Honour was appointed to the District Court in 2005 and was President of the Children’s Court from 2018 to 2020, before being appointed as the new Chief Judge of the WA District Court in 2020. Her Honour has been a valued member of the Law Society since first joining in 1990. Over the years, Chief Judge Wager has made a notable contribution to the Society’s Continuing Professional Development programme for practitioners.

Why did your Honour choose law? Like many young people I didn’t have a clue what I wanted to study and I certainly wasn’t a committed or passionate student. It was only after I started my articles at Legal Aid WA that I realised I loved working in the law. The decision to study law was good luck rather than good judgment.

What does your Honour regard as the proudest achievement of your legal career? Starting the Drug Court 21 years ago enabled people whose lives had been damaged by drugs and who caused pain to their family and the community to make a positive choice to stop drug use and stop offending. I am so proud of how the court has progressed and of the hundreds, probably thousands, of successful graduates over the past 21 years. Every Drug Court team has been committed to work together to make change. The current

26 | BRIEF AUGUST 2021

Drug Court Magistrate, Janelle Scutt, is doing an amazing job in 2021.

What motivated your Honour to achieve so much in your career? I don’t think I am naturally a very motivated person. I have been so fortunate to always enjoy the work I do, to work with talented people and to have been mentored by lawyers and judges of the highest calibre. This combination has been really motivating.

What are the challenges of being a judge that the public doesn’t necessarily see? The workload of judges continues to increase in volume and complexity. Ensuring that judges have enough time to properly consider the outcome of a matter and to exercise their judicial discretion while keeping up with this workload is a challenge. The subject matter of the District Court work is often traumatic and distressing. Judges need to be balanced and healthy in order to discharge their duties. This is a top priority.

Has much progress been made for women having equal opportunities? When her Honour Antoinette Kennedy AO was appointed as the first female judge to the District Court in 1985 she was not welcomed with open arms by all of her brother judges. Times were tough for women. I thank the Honourable Attorney General John Quigley MLA for choosing to appoint women to the District Court. Fifty percent of our judges are now women. I love being part of a court that is finally starting to look a little bit more like the community it serves. Equal opportunities come about through support, encouragement and acceptance. I was articled to the Honourable Len RobertsSmith QC who was Director of Legal Aid in 1985. He encouraged all young lawyers to reach their potential, regardless of gender. Her Honour Kate O’Brien was my first boss in the criminal law section at Legal Aid. She is a fantastic teacher and mentor and was a real inspiration for young women in

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

the law. When I set up in practice I initially briefed senior women at the bar who did their best to put themselves out of a job by encouraging me to do the difficult counsel work on my own. I have also received fantastic support from male judges who have held leadership positions and who gave me the best chance to perform well.

What advice would your Honour like to give to junior legal professionals? Start your career with an open mind. A career in the law shouldn’t be linear. The opportunities and challenges along the way can be what makes a life in the law really interesting. If you don’t love what you are doing and don’t respect and enjoy the company of the people you are working with then try and apply for another job. Work hours are too long and life is too short not to be fulfilled and happy.

Solicitors Profile

Number of solicitors by jurisdiction over time - WA

2020:

2018

The portrayal of criminals having complex lives and hearts of gold is so beautifully written. The characters reinforce why imprisonment should remain the sentence of last resort and the sort of factors that are so important to the exercise of judicial discretion.

5,936

OF AUST

Life Lessons If you are lucky enough to like what you do and be supported by colleagues, then your career is going to be a happy one. Take every opportunity and challenge that comes your way. Say yes before you have thought about the consequences. If you put the time in you will rise to the occasion. Work hard and play hard.

OF AUST

2011

5,666 SOLICITORS

OF AUST

4,038 SOLICITORS

OF AUST

Gender – National Profile 53%

2020 47%

52%

N = 83,633

50%

2016 50%

46%

2018 48%

N = 76,303

48%

N = 71,509

We are so lucky to have great Noongar writers in Western Australia who are prepared to share the stories, complexity and beauty of Aboriginality.

This is a story of isolation in Perth in the 1950s due to Polio that resonates in 2021 when we find ourselves isolated in Perth due to COVID-19. It is a beautiful book about relationships and coming of age in circumstances of isolation.

OF AUST

2014

SOLICITORS

Taboo by Kim Scott

The Golden Age by Joan London

SOLICITORS

2014 52% N = 66,210

In 2020, there continue to be more female solicitors than male solicitors nationally – a trend first observed in 2018. At October 2020, 53% of the profession were female and 47% were male. The proportion of female solicitors has steadily increased over time, with 2016 being the first year to see an even distribution of genders (50% of each). Previously, there were more male solicitors than females.

2011 54%

N = 57,577

Gender – by Jurisdiction

5,936

SOLICITORS

2833

Boy Swallows Universe by Trent Dalton

5,428

3103

What top three books can your Honour recommend?

5,656 SOLICITORS

What message would your Honour like to give to senior legal professionals? Don’t be too tough on young lawyers. Don’t work them so hard that their goal for the future is to get out of the law. Look after your own wellness. Take holidays, prioritise your family and give support to your colleagues when you can. Being generous to yourself and to others won’t put you out of business but if you fail to get your priorities right it will almost inevitably impact on your physical and mental health.

2016

52 %

48%

The 2020 National Profile of Solicitors in Australia was released in July on behalf of the Conference of Law Societies.

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

I worked in private legal practice for many years in the UK and Western Australia for ten years. Instead of applying the law I was drawn to the creation, review and improvement of the law – Parliament then became my focus.

Leading the Way

2006 Mia Betjeman is the first woman appointed Clerk of the Legislative Council.

What do you regard as the proudest achievement of your career? THE single proudest achievement in my career? I view a career as a whole story so this would be giving birth to my daughter and becoming a parent when I was Clerk of the Legislative Council, and Clerk of the Parliaments, I think I was the first female in Australia to give birth while in office.

Mia Betjeman The first woman appointed Clerk of the Legislative Council Mia Betjeman joined Clayton Utz in 1991 practising in the general commercial and corporate areas. From 2002 to 2006, she was Clerk Assistant (Committees) in Parliament House, primarily responsible for legal, procedural and operational aspects of all Legislative Council parliamentary committees. She was promoted to Clerk of the Legislative Council and Clerk of the Parliaments and was responsible for the governance, financing, staffing and administration of the Department of the Legislative Council from 2006 to 2007. Having worked for the University of Western Australia and Curtin University, the State Ministerial Advisory Council on Rural and Remote Education (RREAC) and the RSPCA WA at executive level, Ms Betjeman has extensive senior experience in the public and private sectors including strategic and corporate planning, executive management, and policy development, implementation and review. She is currently the Principal of her own consulting firm, Betjeman Consulting.

Why did you choose to study law? I didn’t initially choose to study law. The call of a creative and artistic life was drowned out by then career guidance “to secure a proper job”. There was no strategic intent or earthshattering call - I simply followed a friend into law school thinking it would provide a good grounding for whatever I might choose later on in life. However very soon I realised that it fed my curiosity about inequality, injustice, and a lack of voice for all, and it provided a skills platform to support change.

28 | BRIEF AUGUST 2021

A bawling baby being wheeled about the “corridors of power” set a cat amongst the pigeons I can tell you! To this day I say that wrangling a newborn was much harder than a chamber full of Parliamentarians! My daughter’s arrival meant that I had to pivot my career in order to be a present parent, but different doors opened.

What motivated you to achieve so much in your career? Being Clerk is akin to being an apolitical Director-General of a government department. I was never motivated to “get to the top” – I just wanted to do my best, help others and support change. To be honest since I left university it was a very hard slog in many different environments that are not comfortable with women and didn’t support women, or know how to. And I truly believe woman have to work harder than men to get to the same place. We are heading in the right direction, but it is taking a long time. I have had the opportunity over thirty years to work in a diverse range of environments including private legal practice, Parliament, government, and the education and the not-for profit sectors. I am always proud to have left organisations in better conditions than when I arrived.

What are the challenges of working in Parliament that the public doesn’t necessarily see? Incredibly long hours, in a traditionally masculine environment which is very slowly moving towards a better approach. When Parliament was sitting a Clerk’s typical working day would start at 7am and end after midnight. Outside of that were committee inquiries. Crawford and Pini summed it up best in their article “The parliament is gendered as masculine, but this is unavoidable. For example, the long sitting hours and the need to spend extended periods in Canberra. … the way in which parliament is structured results in women being seen as ‘the other’ …”.1

Has much progress been made for women having equal opportunities? A very topical question given the current round of focus across the parliamentary and public sector in 2021 – but the question has been

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

constantly asked, with some frustration, for a very, very long time before now. In the 1950’s Betty Friedan said to women that “You can have it all just not all at the same time”. That was over 70 years ago but it remains very true. The modern nuance may be slightly different but there is still imbalance between genders on so many fronts. Numerous milestones may have been reached, but it remains a matter of debate whether sufficient progress has been made. There is a long way to go before we can validly say that paper policies and protocols are embedded and displayed in reality – in our everyday culture, attitudes and expectations. “Equal opportunity” is more than statistics or appointments or opening pathways – it is also about the lived experience, the formal and informal support along the way. Inquiries, policies and processes are all very well but they have to make a real and practical difference with people - otherwise it is just ticking a box for an annual report.

If you could now change one law in WA, what would it be? It just happened with the Voluntary Assisted Dying Act 2019.

That law is an example of a difficult but successful process to create and pass a law to address an incredibly complex issue. It is proof that strong emotions, medicine, science, individual rights, religious beliefs, societal expectations (among other interests) may clash but can find a way to move forward with kindness and compassion. Everyone involved in the many years of debate, no matter their view, should feel proud.

What advice would you like to give to junior legal professionals? Be resilient, balanced and authentic. Importantly – give yourself permission to explore. Just because you walk through one career door doesn’t mean that it closes. Law is not a linear profession; now more than ever it can lead to many satisfying paths including human rights, volunteer, charity work, or business. Success doesn’t mean a big pay packet, a gold-plated name on an office door or someone stroking your ego. Always leave something better than when you found it.

What message would you like to give to senior legal professionals? With every advancement in your career never ever lose sight of where you started;

Betty Friedan said to women that

You Can Have it ALL just not all at the same time

appreciate your front-line team members; share knowledge and enable others.

What top three books could you recommend to our readers? Lessons aren’t limited to the latest motivational leadership book. All writing is about human behaviour whether fiction or non-fiction. I don’t always agree with what I read but I try to pay it respect and ensure that it makes me think! Try: The Prince – Niccolo Machiavelli (1513) Bright and Distant Shore - Dominic Smith (2011) The Wife Drought: Why Women Need Wives and Men Need Lives - by Annabel Crabb (2015).

Life lessons I would repeat the same advice I mentioned to junior professionals in the previous question – it remains relevant. Plus - make sure you can always keep laughing.

End notes 1 M Crawford and B Pini, ‘The Australian Parliament: A gendered organisation’, Parliamentary Affairs, 64(1) 2011, p 93.

The Law Council of Australia’s 2013 National Attrition and Re-engagement Study (NARS) Report collected quantitative data and confirmed trends in progression, attrition and re-engagement rates of female lawyers. The research also examined the qualitative reasons behind these trends. The data indicated there is a perception of conscious or unconscious bias against women who adopt flexible working arrangements to balance family responsibilities. Women also identified practical and cultural barriers to their progression. For women with children, balancing family responsibilities was a recognised challenge. The research suggests that whilst a range of flexible working arrangements might be available for these women, taking them up could have a negative impact on progression prospects. Particularly in larger private firms, study participants reported several negative impacts of utilising flexible working arrangements. These included being allocated unsatisfying work, being passed by for promotion, and dealing with colleagues’ assumptions that because they had accessed flexible working arrangements, their priorities lay outside work.

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

Leading the Way

2007 Anna Liscia is the first female Chairperson appointed to the Legal Practice Board of Western Australia.

Anna Liscia The first female Chairperson of the Legal Practice Board of Western Australia Anna has been practising law for 38 years, during which time she has seen significant changes not only in how law is practiced, but in the make-up of the profession. Anna is a first-generation Australian, the child of Italian migrants who chose to attend the University of Western Australia to study law at a time when she was expected instead to marry and have children rather than follow a career. But the 1980s was a time of societal change, with the introduction of free education and the women’s movement being a loud voice. Having graduated from law in 1982, Anna was admitted to practice in 1983 after completing the required 12 month Articles of Clerkship under the supervision of a senior lawyer. She has practiced as a principal, an employee and a consultant. She has also been a member of various administrative tribunals. Anna started her career with Stone James & Co (now King Wood Mallesons) working primarily as a litigator. Her role models in these formative years, who were all men, provided her with a solid foundation on which she built her successful career. Those early years were, in her view, crucial to the development of sound practices and a strong moral and ethical compass to guide one through what was at times a very demanding and unforgiving career. ‘When I graduated from UWA in 1982, women made up over 50% of graduates and 46% of the legal profession. However, very few women held any positions of seniority or authority in the profession. I was extremely fortunate in that my superiors saw me as a lawyer first and a woman second. This resulted in me being given the opportunity to be involved in complex litigation usually reserved for men thereby being able to prove myself and to be judged on my merit and not any preconceived notations of what women in

30 | BRIEF AUGUST 2021

the law were suited to.’ However, Anna recognises that her experience has not been mirrored for all women in the profession. The greatest hurdle to her career came when she was competing with partners for legal work. ‘It was not until I became a threat, in the sense of taking work away from men, that I felt the first block to my career. Men were still the majority by far of those who held positions of power, and hence who could influence my career. When it comes down to the bottom line, merit is pushed aside.’ Anna was the first female Chairperson of the Legal Practice Board of Western Australia, being elected to that position in 2007. In 1999 she was invited to replace one of the then two female Board members. It is a tribute to the Board that back in 1999 they recognised the need for some form of gender equality and agreed that the retiring elected female Board member should be replaced with another female. Anna’s voice on the Board added to the push for a female perspective to be heard. Working primarily with men on the Board was a challenge, but she found that not being afraid to voice an opinion led to others listening to her, even if they did not agree. It was the start of a conversation with a different perspective, that of a woman with a migrant background. During Anna’s time on the Board, their female membership has grown from having 3 women members in 1999, only one of whom was elected by the profession, to currently having 11 women members, of whom 7 out of the total 12 are elected members. This change in female composition allows for a broader perspective within the Board, noting the significant change in the composition of the profession. Anna’s association with the Board led to her education into the complexities involved in the regulation of the legal profession, from the approval of universities, to the education of law students, to the supervision of legal practice and dealing with issues which

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

cause lawyers to be unable to practice, whether due to health issues or their failures to act in the best interests of their clients and the profession. These experiences have allowed Anna to gain a holistic understanding of what the profession should be doing, with her mantra as a Board member being that it had to be proactive to meet the varying needs of the profession in changing times. In her time on the Board Anna served as Deputy Chairperson from 2004 and in 2007 was appointed as Chairperson, a position she held for 5 years. She has served on many committees of the Board and is currently the Convenor of the Management Committee. Anna was the Board’s WA representative to the Law Admission Authority Council, a national body tasked by the Council of Chief Justices with the aim of developing policies to ensure a degree of consistency of approach to admission issues across Australia. One of her main accomplishments as Chairperson was the introduction of the electronic renewal of practising certificates, making the Board one of the first in Australia to automate its processes. Changes in the structure of legal practices and modern methods of communication have allowed for greater flexibility in work collaboration, working hours and working from

home arrangements, all of which have empowered women lawyers. Not surprisingly, Anna and many other women in the profession have opted to work for themselves, thereby being able to control their working environment, the expectations of others and to work independently. In 1993, Anna formed her own legal consultancy with a business partner that provided specialist litigation services on a contract basis to the then burgeoning boutique legal firm market, after being told there was and would be no demand for that service. That business lasted 18 years and was highly successful! Thereafter she operated her own legal practice as a sole practitioner for 7 years, before in 2018 joining IRDI Legal as Special Counsel to lead its Child Abuse Team in responding to claims of historical child abuse. More women leaders are needed in the legal profession, according to Anna, in order for women to have the confidence to challenge the establishment - and themselves - so as to effect cultural and systemic change.. ‘This is reflected in the fact that in my 38 years of practice, women are still the majority of law graduates and have moved from accounting for 47% of the profession to accounting for 52% of the profession. But it takes more than numbers. It takes women holding positions of power and authority to make a real lasting change. I still recall the boost to my own confidence when the

first woman was appointed a Judge in 1985, the first woman Queen’s Counsel in 1993, and then the appointment of Judge Antoinette Kennedy as Chief Judge of the District Court in 2004. Those women paved the way, showing me that you have to keep going in what you see as your ultimate destiny and to just leave the rest behind. I have found that if you forge your own path forward, others either get out of your way or they follow. That is the joy, and at times pain, of being a first.’ Anna’s experience has included working in all forms of dispute resolution and litigation, acting as Instructing Solicitor for a number of Royal Commissions and Inquiries, sitting as a member of the Legal Practitioners Disciplinary Tribunal and later the State Administrative Tribunal. In addition, Anna has been a director of various companies and not for profit organisations. However, despite these opportunities, Anna points out that the practice of law is still governed by the real world; by clients’ demands and expectations, by the manner in which Courts operate and by the emergence of global communications and interactions. That in turn, has opened opportunities for new ‘firsts’, as traditional boundaries of how we work, interact with our clients and the legal system are tested and expanded. Anna continues to serve as a member of the Board.

Australian legal profession records strong growth as more women enter the profession A statement by The President of the Law Society of Western Australia, Jocelyne Boujos, Wednesday, 14 July 2021 “In 2011, when the first National Profile was published, women accounted for 46% of the nation’s 57,577 solicitors,” Ms Boujos said. “Women now make up 53% of the 83,643 solicitors in Australia and, for the first time, female solicitors outnumber male solicitors in all states and territories.” Over the past nine years, the growth nationally of female solicitors (+67%) has been higher than that of male solicitors (+26%) and in Western Australia females make up 52% of the profession compared to males 48% of the profession, further indicating that more women are continuing to enter the profession.

“This particular trend underscores the importance of ongoing initiatives such as the Charter for the Advancement of Women in the Legal Profession, which was developed by the Law Society of New South Wales and adapted by the Law Society of Western Australia in 2020 to reflect current Western Australian law,” Ms Boujos said. This is because women are still not represented in the higher levels of the profession in numbers that are reflective of their percentage in the profession. It is pleasing to note that of the seven Presidents of Law Societies in Australia in 2021, six of those are women who represent a cross section of practice areas and structures.”

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

What is the proudest achievement of your Honour’s legal career? I am grateful for all of my good fortune throughout my career. However, being appointed as a judge was, and is, a great honour.

Leading the Way

2008 Gail Archer SC is the first woman to be appointed as Acting Commissioner to the Corruption and Crime Commission in Western Australia.

2009

Carmel McClure QC is appointed first female president of the Court of Appeal of the Supreme Court of Western Australia.

What motivated your Honour to achieve so much in your career? Any achievements that have been due to my own efforts largely stemmed from fear: fear of letting down those I was acting for, fear of injustice and, I admit, the everpresent fear of public humiliation.

Does your Honour have any humorous anecdotes about colleagues in the profession?

Justice Gail Archer SC

Humorous to me, or humorous to them? Hard pass.

The first woman to be appointed as Acting Commissioner to the Crime and Corruption Commission in Western Australia

Memorable to me? All of them. Memorable to anyone other than me and the parties? None.

Justice Archer commenced legal practice at the Crown Solicitor’s Office (as it then was) in 1989, before joining the Office of the Director of Public Prosecutions in 1993, remaining there until 2002. From 2002 to 2004, Justice Archer was Principal Counsel of Legal Aid WA. In July 2004, she began practising as a barrister at Francis Burt Chambers in a wide criminal and civil practice. She was appointed Senior Counsel in 2007. In 2008, Justice Archer became the first woman to be appointed as Acting Commissioner to the Corruption and Crime Commission in Western Australia. In 2017, Justice Archer was appointed as a judge of the Supreme Court. Justice Archer has also been a valued and engaged member of the Law Society since being admitted to practice law in 1990, having served the Society in a variety of capacities including as Deputy Convenor of its Ethics Committee and as a member of its Continuing Professional Development (CPD) – General and Commercial Litigation Committee.

Why did your Honour choose law? I would like to say it was because of my commitment to social justice and the rule of law. Regrettably, it was not. It was because I realised in first year university that being a maths lecturer may not be quite as satisfying as I had thought. My father, who bore the brunt of my love of arguing, thought I might be suitable for the law.

32 | BRIEF AUGUST 2021

Are there any memorable cases that your Honour decided?

Has much progress been made for women having equal opportunities? In some areas, yes. In others, no. In particular, I look forward to the day when there are an equal number of male and female silks.

What advice would your Honour like to give to junior legal professionals? Fiercely guard your reputation for integrity. Such a reputation takes years to gain and can be lost in a moment. Never allow your desire to assist your client, or to win, interfere with your obligations to the court and to fellow practitioners.

What message would your Honour like to give to senior legal professionals? Read rule 23 of the Legal Profession Conduct Rules 2010. Go on. Look it up.

What top three books can your Honour recommend? The only book I am willing to admit I would recommend is Misleading Silence, edited by Elise Bant and Jeannie Marie Paterson. It’s a great book. If you want to disappear into a book on a rainy Sunday, anything by Dennis Lehane will make that happen.

Are there any life lessons your Honour would like to share with our readers? While there are disadvantages to aging, the benefits are many. In particular, with age you can stop trying to be the best there is and just be the best you can be. You also stop worrying whether those trousers make the dimensions of the main extensor muscle of your hips look excessive.

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

The Hon Carmel McLure, AC, QC

What are the challenges of being a judge that the public doesn’t necessarily see?

The first female president of the Court of Appeal of the Supreme Court of Western Australia

I am not sure the general public fully appreciates the solitary nature of the judicial decision making process (think ‘the loneliness of the long distance runner’), the work load and time pressures that are now commonplace throughout the judicial system and the constraints on the social life of a judicial officer.

The Hon McLure obtained a Bachelor of Jurisprudence with Honours in 1976, followed by a Bachelor of Laws with Honours in 1979, both from the University of Western Australia. The Hon McLure also studied at Oxford University and attained her post-graduate degree of Bachelor of Civil Law. The Hon McLure returned to WA in 1984 and took employment as a solicitor at the law firm then known as Keall Brinsden, now Corrs Chambers Westgarth. She became partner in 1987 and head of the firm’s litigation division from 1993-1995. In 1995, the Hon McLure joined the Independent Bar practising out of Francis Burt Chambers and was appointed Queen’s Counsel in December 1997. In 2001, the Supreme Court welcomed Her Honour to the Bench. She became a member of the Court of Appeal upon its inception in 2005 and was appointed as President of the Court of Appeal in November 2009. The Hon McLure is a Life Member of the Law Society, having joined back in 1980.

Why did your Honour choose law? As a secondary school student in the early 1970s, my aim was to go to University and qualify to join a ‘profession’, but not a female dominated one that the nuns thought suitable in the interregnum between leaving school and marriage and motherhood. I vaguely understood that the law was not a transitional option. However, no one in my extended family or our social network was a lawyer, so my decision to enter law school in 1974 was a step into the unknown. I certainly did not know at the time that there were no women in the upper echelons of the profession. No female silks, judges, or partners of top tier firms.

What is the proudest achievement of your Honour’s legal career? One of the proudest achievements in my legal career was my appointment as Queen’s Counsel in 1997. I was the second woman appointed silk in WA. Chris Wheeler was the first. I was reluctant to lodge an application but did so after being badgered by my former long-time secretary, Pam Rabbidge. She helped in the preparation of my application and was on hand to celebrate when it was successful. A photograph of Pam and I drinking champagne on the night of the announcement has been in a prominent position on my fridge since 1997.

Does your Honour have any humorous anecdotes about colleagues in the profession? In my early days in the judiciary I was amused at the propensity of senior members of the bench to talk about themselves even when it was completely off topic, such as when welcoming new, or farewelling retiring, members of the bench. I lost my sense of humour after a few years.

Are there any memorable cases that your Honour decided? I wrote judgements in three cases that are particularly memorable for me. The facts of each case involved significant events and relationships in this State’s history and raised some interesting and complex questions of law. They are Beamish v The Queen (2005) WASCA 62, Tipperary Developments v The State of Western Australia (2009) WASCA 126 and Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd (2012) WASCA 216.

Has much progress been made for women having equal opportunities? Over the arc of my time in the legal profession there has been a dramatic increase in the number of women in senior positions in the profession including in law firms, at the bar and in the judiciary. That is not quite as impressive when you know the starting point was zero. And of course, there remains much room for improvement.

How has legislation in WA developed over the years in comparison with other States and Territories? Insofar as parliamentary drafting techniques go, if the competition was between WA and the Commonwealth, WA would win by a very large measure. For some time, Commonwealth statutes have been unnecessarily long, complex, unwieldy and maze-like. They attempt to expressly address the range of facts and circumstances that are likely to arise (an impossibility of course), rather than state general propositions and leave it to the courts to incrementally fill in the detail consistently with the statute’s text and purpose. The Commonwealth’s approach is consistent with a distrust in the judgement

of the judiciary. Whatever the motive for the change in approach, for me it took much of the joy out of the task of judging.

If your Honour could now change one law in WA, what would it be? It is a toss up between the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020, which is inconsistent with good government and the Rule of Law in many and varied ways and the Criminal Property Confiscation Act 2000 which applies generally and would benefit from increased judicial discretion to avoid disproportionate or arbitrary outcomes.

Advice to junior legal professionals As a young lawyer I was permitted by my employer to ferret away and ponder until I was satisfied with my work. If that meant writing off my time, so be it. I learned at my firm’s expense, not the client’s. My firm recognised that young lawyers face a steep learning curve and lack the X-factor of ‘judgement’ that is hard won over time. Young lawyers faced with pressure to achieve unreasonable financial targets or compromise on quality should be on the lookout for a new firm.

Advice to senior legal professionals When appearing before an appellate court that has prepared for the hearing, the bench can pretty quickly spot whether the advocate is winging it, either because of lack of proper preparation or contemplation, or is out of their depth. It should not happen.

What top three books can your Honour recommend? My Name is Red by Orhan Pamuk; The People vs Democracy by Yascha Mounk; The Tyranny of Merit by Michael J. Sander.

Are there any life lessons your Honour would like to share with our readers? There is much to be said for leaving the law behind after retirement from the bench. There is plenty going on in the wider world to occupy your time and attention.

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

Why did you choose to study law? I wish I had an easy answer. I loved reading and as a student it was suggested to me that I should consider a career as a librarian. I did my first year of a Bachelor of Arts degree and that cemented my desire to keep reading as much as I could, to learn about the world around me. So many areas interested me, and at one stage I considered becoming an historian. Towards the end of first year Arts, some friends of mine made applications to study a Bachelor of Jurisprudence, and I decided to go along with that as well. After a couple of weeks at Law School in the Criminal Law unit I felt that I had found what I was meant to do. As it turns out I have loved my career in the law, and I continue to find something new and of great interest to me all the time.

Leading the Way

2014 Ros Fogliani is the first woman to be appointed State Coroner in Western Australia. Kerry Sanderson is the first woman to be appointed Governor of Western Australia.

State Coroner Ros Fogliani The first woman to be appointed State Coroner in Western Australia Ros Fogliani commenced her appointment as State Coroner for Western Australia in January 2014, and has continued in that role for seven and a half years. After graduating from the University of Western Australia, Ms Fogliani was admitted as a barrister and solicitor of the Supreme Court of Western Australia in 1985 and practised law continuously since that time, until her appointment as State Coroner. She commenced her legal career at Keall Brinsden as an articled clerk and restricted practitioner, before moving to Mallesons Stephen Jaques in 1987 as a solicitor, and then to Blake Dawson Waldron, where she was subsequently appointed as a senior associate in 1991. She practised in a range of commercial law areas. From 1993 to 2011, Ms Fogliani worked at the Commonwealth Director of Public Prosecutions, initially as a lawyer in the commercial prosecutions branch, prosecuting white collar crime cases. She was appointed branch head of the commercial prosecutions branch, before progressing to deputy director and head of Perth office. In 2011, Ms Fogliani joined Francis Burt Chambers as a barrister, where her primary areas of practice included corporations matters, criminal law, disciplinary tribunals and regulatory offences. She was briefed by a range of clients including Commonwealth and State DPP’s, Australian Government Solicitor and the Legal Practitioners’ Complaints Committee.

34 | BRIEF AUGUST 2021

It is clear to me as I look back now that a number of paths were open to me, and that I may have found a truly enjoyable career in different areas of the law, and also not necessarily in the law. I share this so that younger professionals might see that their choices are broader than they might think, and that there is no particularly unique way of achieving career aims. My own aim was to pursue what interested me, and to do my very best with whatever matter was assigned to me.

What do you regard as the proudest achievement of your career? I cannot really point to any one matter, because I feel that everything I work on is equally important and deserving of all of the dedication that I am able to give in that moment. My proudest achievement, if it is put in that way, is that I am still here, and that I have been fortunate to spend 36 years enjoying my work and feeling grateful for the opportunity to focus upon matters of great interest to me, and that feel meaningful. I have worked in different areas of the law, and I have appreciated everything that I have learnt along the way. Whilst it may be felt that careers need to be mapped out at an early stage, I urge young professionals to keep learning from whatever matter is assigned to them, because all of it contributes to legal knowledge. Then as they move through the profession, they may well find that something they learnt in an apparently unrelated area has in fact informed their thinking, their instinctive approach, their research skills or their general knowledge.

What are the challenges of being a coroner that the public doesn’t necessarily see? We coroners are people; we have training and support on how to deal with vicarious trauma, but it does not change our feelings and reactions. It assists us to deal with them. There isn’t a case where I have not been aware of the tragedy of the circumstances for the deceased and their loved ones,

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

and consciously or possibly unconsciously imagined how I might feel in similar circumstances. Then the many years of training as a lawyer come into play, and I bring my analytical mind to bear upon the evidence before me. I know that this is the best way in which I can help the families of the deceased. It is also the way in which I can serve the community, by looking at ways of preventing deaths in similar circumstances. Recently I have been doing some reading around the area of post traumatic growth, in the context of how some people can experience a transformative growth after adversity. It is a complex area and cannot readily be summarised. I raise it because in addition to focussing on the coronial role, I think it is important that as a coroner I keep informing myself of ideas or theories that can broaden my understanding of the environment in which I work.

Are there any memorable cases that you have been involved in? After more than three decades, it is a long list of memorable cases.

Do you think much progress has been made in recent years with women having equal opportunities for top leadership positions as their male counterparts? Some progress has been made, but it is not enough. There has been a lot of effort from the senior members of the legal profession and judiciary, to support or promote women, on merit and properly so. Good leadership has been shown. However, some of the progress needs to

Danke

Thanks! Yanga Merci

Bedankt

谢谢

Mahalo Gracias Teşekkürler

Obrigado

come from the broader areas of our society. There is not enough space in this response for me to begin to address matters that may adversely impact upon females in leadership roles, and that have been described by some authors writing about the theory of “Role Congruity”. It is not my terminology, but when I began to read about it, the ideas resonated with me. I would urge people who are interested in these ideas to read about them. For me it encapsulates the unique preconceptions (most of them unconscious) that might confront a woman in a leadership role, where her participation is seen as not being congruous with what is considered to be her gender normative behaviour. I do not doubt that there is a desire amongst many people to see women having equal opportunities for top leadership positions, but we are still in a transitional phase, and aspects of role congruity theory may explain (but not justify) the relative absence of women in areas that may be described as top leadership positions. I say this considering that women make up half the population. It may be that we need to examine our preconceptions about the nature of top leadership positions in order to allow them to fully incorporate different leadership approaches from the different genders. There is still much work to be done.

What advice would you like to give to junior legal professionals? Consider whether this advice is useful for you. The options and pathways for your career may be broader than you think. Keep looking around until you find something that really interests you, and hopefully also makes you feel that you can make your contribution. There is no ultimate career choice, the right choice is the one where you feel that you are able to practise your chosen profession in

a manner that resonates with who you are. Meaningful work is great work. Stand up for what is ethical and proper, whether or not it is popular. Try to keep a balance in your life. While I am sure you have heard this many times, maintain your outside interests and contact with friends and family. Look after yourself and don’t surrender your individuality, because there will be no re-run of your career, or your life. Get to know your colleagues, offer to help them, find committees that interest you, socialise within the broader profession, you will meet people who are willing to offer great advice.

What message would you like to give to senior legal professionals? Friends and colleagues, the junior legal professionals look to you for guidance, and in some cases inspiration. Like me you no doubt remember what it was like as a junior lawyer. At this stage of your career, you have the opportunity to pass on your great knowledge and unique perspectives, and therefore make yet another lasting contribution to the profession that you have already given so much to. For those in the mentoring role, it is rewarding for the mentor as well. Communicating an idea or practice to another can allow you to see it much more clearly as well, and in that process, it may expand your own understanding.

Life lessons Life lessons come to us all, without seeking them out. They often help us to grow and develop if we can learn from them. I will pass on one that has helped me over the years when I have been faced with a task that initially seemed insurmountable: “If you don’t start, you won’t get there.” That one came from my mother.

The Law Society of Western Australia would like to warmly thank our female leaders who participated in the interviews. What stood out most was our leaders’ individual voices coming through in the interviews, their profound sense to serve, and, most importantly, their joy in the law. It was truly inspiring, and we are grateful for the opportunity to celebrate this special moment in history with our readers. We would also like to thank Clare Thompson, President of the Women Lawyers of Western Australia; Toni Church, Curator of the Old Court House Law Museum; and Jamie Freestone, Manager, Media and Public Liaison for the Courts. Brief is grateful for the continued support of the Deparment of Justice.

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

Leading the Way

2016 2019

Larissa Strk is the first woman to be appointed Principal Registrar of the Supreme Court.

Gail Sutherland is the first woman appointed Chief Judge of the Family Court of WA.

Justice Larissa Strk The first woman to be appointed Principal Registrar of the Supreme Court of Western Australia Justice Strk was admitted as a Barrister and Solicitor in 1998, after completion of articles of clerkship at Dwyer Durack. From 2011 to 2016, Justice Strk was a Partner in the Perth Dispute Resolution Group of King & Wood Mallesons where she specialised in commercial litigation. In 2016 Justice Strk was appointed as the Principal Registrar of the Supreme Court of Western Australia – the first woman to be appointed in that role. She also performed the role of Acting Master in that time. Justice Strk was appointed a Judge of the Supreme Court of Western Australia in 2021.

Why did your Honour choose law? As a student I was an avid reader and drawn to the arts. I enjoyed both writing and debating and I was encouraged by several teachers who thought that a career in law, journalism or teaching might suit me. My family had no connection to law. No doubt, mine was not an unusual experience as a child and grandchild

36 | BRIEF AUGUST 2021

of migrants. My family did not expect a lawyer. Their only expectations of me were that I would conduct myself honestly, that I would work hard and that I would run hard at every opportunity afforded to me. While studying, I worked part time, found work experience opportunities and later clerkships and research roles. Each experience, albeit different, firmed my resolve to be a part of this profession.

What does your Honour regard as the proudest achievement of your career? I am deeply honoured by the appointment as a judge of the Supreme Court. I acknowledge that my appointment in 2016 as the Principal Registrar of the Supreme Court afforded me an extraordinary opportunity for development and growth. I also thoroughly enjoyed my time as a partner of King & Wood Mallesons. On reflection, apart from my family, the privilege of working with many talented junior lawyers over the years has brought me the most joy. I have always felt that the employment of a law clerk, graduate, junior lawyer or associate is something of a sacred trust. It comes with an obligation to train, mentor and encourage as, from my own experience and observation, a junior lawyer’s experience of the profession is almost wholly shaped by their early interactions with their principal and the senior members of their team. I believe that investing in junior members of the profession is no sacrifice. I have gained energy and insight from working with dynamic and enthusiastic young

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

lawyers, with different experiences and perspectives.

In pursuing your career, what has motivated your Honour? I suspect that I am motivated by my enjoyment of the law, gratitude and obligation in equal measure. I am fortunate in being able to do something I enjoy every day and to be paid for it. That is not to say that I haven’t experienced challenging days at work, but I have always enjoyed the practice of law and I have been exceptionally well supported personally and professionally by family and friends. I have found that in times of personal difficulty and loss, I have had the structure and stability of work to anchor me. I am also cognisant that some of the opportunities that have been available to me were not readily available to the hard-working women of the Strk and Marinkovich families in the generations before my own.

What are the challenges of being a judicial officer that the public doesn’t necessarily see? Since August 2016, I have had the privilege of serving as the Principal Registrar, an acting master, an acting judge and now as a judge of the Supreme Court. Each role has presented its own unique challenges and pressures. The pressure to produce considered written reasons in a timely way, while attending to competing demands and urgent hearings appears to be a universal judicial experience. While there are many pressures, it is usually the pressure I put on myself that causes the most angst. However, I have experienced the court to be an exceptionally collegial institution. I have found all those who serve here to be generous with their experience and assistance.

What aspect of the role of Principal Registrar did your Honour most enjoy? While the duties and responsibilities of the Principal Registrar are varied and dynamic, I particularly enjoyed developing new processes and practice directions intended to better facilitate the administration of and access to justice. The search for improvement and efficiencies within the court is constant. For example, the court continues to review and tailor its processes to better manage reports and evidence by experts. In an increasingly complex world, parties and the court benefit from the facilitation and oversight of expert conferral sessions by the court’s registrars. The facilitation process continues to improve the comprehensibility of expert evidence and the efficiency with which expert evidence is received and tested as part of the adjudicative process.

As I reflect on the role, I think it is important to acknowledge the exceptional work performed by the registrars of the Supreme Court. For 5 years I have had the privilege of working with dedicated registrars and acting registrars who each have sought to diligently serve the administration of justice. They are talented case managers, interlocutory decision makers, mediators, facilitators of expert conferrals and taxing officers. They attend to over 7000 applications for probate each year, 400 mediations, numerous examinations and applications to access the court’s records, while providing procedural assistance to litigants in person and significant support to the judiciary in the conduct of long and complex trials. Three of the registrars are also concurrently appointed as Magistrates for the purposes of Magistrates Court Stirling Gardens, dealing with proceedings in respect of Supreme Court indictable matters. They also facilitate the court’s voluntary criminal case conferencing process. With skill, nuance and empathy, the registrars attend to an ever-expanding scope of work. It was only after joining the court that I came to understand the extent of their contribution.

Has much progress been made for women having equal opportunities? I am by nature an optimist and I am encouraged by the progress that has been made in recent years. That said, I acknowledge that as a profession, particularly in the senior roles, we are not as diverse as the community we serve. Each of us has a role to play, particularly in creating safe workplaces and by nurturing and promoting cultural, racial, religious, age, sexual orientation and gender diversity in those workplaces.

What advice would your Honour like to give to junior legal professionals? I would suggest approaching every task, matter, conversation and appearance (however straightforward) as an opportunity to learn and to build your reputation as a conscientious and diligent practitioner. Take the time to prepare but also to reflect on what went well or not so well and why. Self-awareness is important, so make reflection a habit.

“I acknowledge that as a profession, particularly in the senior roles, we are not as diverse as the community we serve. Each of us has a role to play, particularly in creating safe workplaces and by nurturing and promoting cultural, racial, religious, age, sexual orientation and gender diversity in those workplaces.” Does your Honour have any humorous anecdotes about colleagues in the profession? Many. But I fear that if I share them with you, those colleagues will seek retribution by sharing their anecdotes of me in your next edition.

What does your Honour you like to read in your down time? For over 25 years, I have been a contrite bookclub member. Each month, I diligently buy the book, but completion can be a bit hit and miss. As a result, books are always piled high on my bedside table, occasionally posing a risk to small dogs and children. I recently enjoyed Damascus by Christos Tsiolkas so much that I purchased copies for three friends. I also like to read whatever my son is reading, which has allowed me to revisit old favourites. We recently read The Giver by Lois Lowry. The best part of my week is usually Sunday afternoon, enjoying some quiet couch time with family, books and blankets. Last night my novel was bumped for Ms Represented with Annabel Crabb. I am very likely to be found this weekend enjoying a repeat viewing.

Secondly, community is key. Spend as much time as possible working with and being supervised by senior members of the profession. Observing how an experienced practitioner works through an issue; structures their advice; or frames a difficult conversation is an excellent way to learn. Finally, invest in the profession, volunteer your time and be prepared to assist your colleagues. You get what you give.

long hours that judicial officers spend out of court in reading to prepare for hearings and in judgment writing; and (3) the sacrifices they make in trying to maintain some sort of a work / life balance.

Has much progress been made for women having equal opportunities? Yes. I think there has been significant progress in Western Australia, particularly in recent years. I only have to look to my colleagues sitting around the table at meetings of the Western Australian Heads of Jurisdiction to see the great progress that has been made.

Advice to young lawyers

Chief Judge Gail Sutherland The first woman appointed Chief Judge of the Family Court of WA Chief Judge Sutherland was admitted to practice in WA in 1982 and has worked in family law for the majority of her legal career in family law. Following her admission, she practised in a variety of areas until 1985 when she commenced at Ilbery Barblett and O’Dea as a family law solicitor, later becoming an associate. Chief Judge Sutherland became an accredited family lawyer in 1994. She was appointed as Registrar of the Family Court of Western Australia in 2009 and as a Family Law Magistrate in 2010, before being appointed Principal Registrar in September 2017. Her Honour was appointed as a judge of the Family Court of Western Australia in 2018. One year later, in 2019, she was appointed Chief Judge of the Family Court of WA – the first female to hold this position since the Court’s inception over 40 years ago. During her time at the Family Court, Chief Judge Sutherland has undertaken a number of projects including as a member of the Court’s Continuing Professional Education Committee. She has presented to many conferences and seminars including to the Law Society of WA and the Family Law Practitioners’ Association of WA.

38 | BRIEF AUGUST 2021

Why did your Honour choose law? I wanted a degree that would give me multiple career options: including in law, commerce, government and education. Studying law fitted the bill perfectly.

What does your Honour regard as the proudest achievement of your career? I was the first in my family to attend university. Graduating and then being admitted to practice as a lawyer in 1982 was a very big milestone for me and my family. I then spent many years in different legal practices, working with great people from whom I learnt a lot. Since joining the Family Court of Western Australia in 2009 I have been privileged to work in every judicial role at the Court, culminating in 2019 with my appointment as Chief Judge. Each appointment was very special, and a career highlight at the time. However, there is no doubt that being appointed as only the 5th Chief Judge of the Court was, and continues to be, a tremendous honour.

What motived your Honour to achieve so much in your career? I don’t think I have ever been motivated by career achievements or career success. Rather, my motivation has always derived from enjoying working as part of a team: helping to achieve tasks or solve problems as they arise and pitching in to do my part.

What are the challenges of being a judge that the public doesn’t necessarily see? The public see judicial officers sitting in Court. What they don’t necessarily see is the unrelenting pressure that judicial officers face in performing their work: (1) the complexity of the cases that judicial officers deal with day in day out (in the Family Court for example, many cases involve very serious issues which adversely impact on children and their families, such as family violence); (2) the

There is one issue that I have been thinking about recently: I would caution junior family lawyers against aligning themselves too closely with their clients. It’s important to maintain a professional perspective, so that you can give the hard, pragmatic advice that your client may not want to hear (but needs to hear) about the merits of their case or the consequences of maintaining a particular position. Particularly in the family law arena, it’s important not to simply become a part of your client’s “armoury” – including in using the litigation itself as a weapon against the other party. Please seek advice and support from your senior colleagues, if you perceive this is becoming an issue with a particular client.

Reflecting back on your career, are there any life lessons your Honour would like to share with our readers? After nearly 40 years, I’m still not sure that I have found the right balance between career and life. Going into labour with my first child while I was appearing in a trial at the Family Court in 1986 was an early indicator that I didn’t have the balance right! I’ve continued to work on it in the years since. I have always been very fortunate to have great support from my family, my friends and my work colleagues. I value those relationships very much. As much fresh air and physical exercise as I can fit in also helps.

Trailblazing Women of Law in W e s t e r n A u s t r a l ia

This Journey... and Beyond Closing thoughts from Law Society President Jocelyne Boujos The history of women in the legal profession offers a unique vantage point from which to view the progress of women in society. This is because the legal profession is one of the most powerful, well remunerated, and respected in the world. The law not only plays a foundational role in a democracy, but is often a stepping stone to higher levels of leadership in business and public life. Thus, women’s progress in the law represents a bench mark of progress in our culture. Legal professionals play critical roles across all segments of our society, most noticeably through the courts, but also in government, business, non-governmental organizations, and other important institutions. Female lawyers in WA have travelled an exhilarating yet rocky road since 1930 when Alice May Cummins was the first woman to be admitted to practice—from token representation in the 1950s and ’60s, to working in the trenches, shoulder pads and all, in the 1980s and ’90s, and finally to achieving numerical parity in law school admissions, if not the profession itself, in the 2000s. Together, these first generations of women in the law make up an incredibly accomplished group as recorded in the previous articles including Claire Thompson’s “On Bravery”. I am however, disappointed by progress in the profession since. Though women are at near parity in graduation rates, they’re still not reaching partner level at anywhere near those levels. To gain equal representation at the highest levels, the culture of work must adjust to a societal structure in which dualincome families are now the overwhelming norm. Flexible policies that encompass the lifespan of a lawyer’s career and make room for periods of time at less than a breakneck pace will benefit men and women alike. High-achieving women often have high expectations of themselves, when a selfforgiving attitude might be more productive given the amount they’re juggling. More is expected of parenting, too, Ursula Wynhoven, General Counsel and Chief of Governance and Social Sustainability for the United Nations Global Compact notes: “Parental expectations these days—they’re

just so much more extensive than when we were kids in terms of the intellectually stimulating environment you should be creating for your child, their different activities, and the things you’re doing with them at home. These have tended to land disproportionately on women—and of course you’re also supposed to be gorgeous, too, right? Beautifully dressed and immaculately put together.”1 So, it is hard to imagine why a woman would want to join the legal profession. However, I see change: in the option for some to work remotely; in pay scales; in the choices many law firms make available to all of their professionals. Although our profession still has much room to improve, and likely will continue to need to do so as times and values change. It has been said that a focus on making family life possible for dual-income families should have easy bipartisan appeal as the community places a high value on family care—it is hardly an issue on the cultural fringe. The adoption of digital technology as a result of COVID-19 has enabled the rise of the flexible workplace. The evidence shows that when law firms have adopted these practices they rarely have problem attracting and retaining female lawyers.2

I wanted to take a moment to reflect why I love being a lawyer.2 The work is great. One of the best aspects of being a lawyer is the satisfaction and reward that comes from the substantive work itself. Lawyers are an essential component of the most significant matters in everything from business to government to the non-profit sector. The process of analysis involved in examining a legal issue and evaluating a constantly changing framework of laws and regulations is mentally stimulating and personally gratifying. The impact of our work also is incredibly significant. Keeping our clients secure through the advice and analysis we provide, guiding them through litigation, whether big or small, structuring deals and all manner of business transactions, securing justice for those who require a voice—for many of our clients, our services are vital to the most significant events in their businesses and lives. As lawyers, we fill an essential function in society, facilitating order, business, fairness and progress. We bring our education, training, experience and wits to advocate for our clients, and guide

them through substantial and critical decisions. Underneath it all, the practice is extraordinarily gratifying.

The profession continues to grow in support of women. The growing support for women in the legal profession is an increasingly beneficial aspect of a career in the law. With a mounting awareness of the benefits of diversity in the practice, many firms, as well as state and federal law society and bar associations, have diversity initiatives in place aimed toward support for professional development, and for workplaces that allow for differing career goals and family structures. Prior generations of women in our profession paved the way and helped break down barriers for new female lawyers, and now, from the very established to the newly minted, female lawyers lend advice and support to their comrades across firm lines and industry practices. This comment, by Canadian lawyers, resonated with me and captured my reflection, “Everyone has days when getting into work seems like a battle, or when a particularly demanding client seems to need everything yesterday. Yet, even in those moments, we should remember that we are lucky. We do challenging and interesting work in a field in which support only continues to grow; we have a community; we have flexibility; and we make a good living doing fascinating work in a well-respected profession”.3 Ultimately, being a female and a lawyer is an unbeatable combination that can allow for a balanced, accommodating lifestyle. We have come a very long way, and law is a great place to be today.4

End notes 1 ”Women as Lawyers and Leaders” Harvard Law Review V/1 I4 May/June 2015 – Section 4 2 The times they are a-changin’: why women lawyers need to support the digital revolution” Pink Rottweiller Copywriting: Genieveve Burnett Australia March 6 2017; Law Council National Attrition and Re-engagement Study (NARS) Report commissioned Mar 2012 3 “The Top Five Reasons We Love Being Female Lawyers” S Zearpoor, Le K.Tilley ONABA MARCH 14 2016 4 This article is influenced by and is a summarised an edited version of ”Women as Lawyers and Leaders” Harvard Law Review V/1 I4 May/June 2015 and “The Top Five Reasons We Love Being Female Lawyers” S Zearpoor, Le K.Tilley ONABA MARCH 14 2016

Royal Commissions: an important part of the research ecosystem

Dr Elise Bant, Professor of Private Law and Commercial Regulation, UWA Law School, Professorial Fellow Melbourne Law School The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (the FSRC) handed down its final report in February 2019.1 Following an initially positive response, the Commonwealth government has not yet implemented (nor, in the case of mortgage brokers, accepted) all recommendations. Indeed, the government has been subject to significant criticism for seeking to implement changes to existing laws, such as the responsible lending obligations, which are wholly inconsistent with the FSRC recommendations.2 Frustration and disappointment at the failure of governments to accept and implement careful and considered recommendations of expensive royal commissions are not new. Such sentiments will often be justified. My purpose in this paper is not to play down legitimate concerns to put commission recommendations into action, but to point to the important, albeit residual, value of these inquiries in the broader research ecosystem. Here, their impact may be widespread, subtle and profound. I limit my discussion to my own personal experience of the ramifications of the Financial Services Royal Commission. No doubt a similar conclusion could be illustrated many times over, and more powerfully, by reference to other royal commissions of inquiry. For a private law scholar with a longstanding interest in statutory and general law doctrines that regulate serious commercial misconduct, the FSRC hearings were gripping viewing. Counsel assisting the Commission led observers through seemingly endless case studies of the worst of corporate behaviours. These provided rich fodder for class discussion and further research in my existing fields. But, as I watched, it was the striking similarity of executive excuses that started to stick in my mind and gullet. As Commissioner Hayne observed, in a lengthy examination in the

40 | BRIEF AUGUST 2021

FSRC Final Report, it was remarkable how often the CEOs of large, powerful and expert financial service providers (FSPs) attributed systemic and profitable wrongdoing to ‘systems errors’. They seemed happy to put their hands up to almost unthinkable levels of sustained ineptitude. Having recently been working in the field of civil penalties jurisprudence with my colleague at Melbourne Law School, Professor Jeannie Paterson,3 the reason behind this strategy was painfully transparent: it was to diminish the level of corporate culpability for that misconduct in order to limit reputational and financial damage. Simply put, careless conduct, even egregiously incompetent conduct, is less damaging to the brand and hip-pocket than deliberate or knowing misconduct. This is so whether or not the form of wrongdoing is fault-based (as in deceit) or strict (as in misleading conduct). Our courts tend to embed culpability at the heart of remedial, scope of liability enquiries, defences and civil pecuniary penalties. In the penalties sphere, for example, courts routinely examine concepts of knowledge, intentionality, dishonesty, regret and contrition when setting civil penalties for the otherwise strict liability statutory prohibition on misleading conduct.4 Minds matter. Currently, the law’s corporate attribution rules, which govern when and how corporate mindsets are established, lend themselves beautifully to corporate ‘fault minimisation’ strategies of the kind repeatedly on display in the FSRC. This is because they are ‘derivative’ of individual, human fault. The law’s traditional approach of locating the corporate ‘directing mind and will’ in its Board of Directors and senior executives5 provides a very real incentive to large and complex corporations to delegate tasks below board level, devolve and divide responsibility for tasks across departments and within information silos and, consequently, dissipate knowledge of the corporation’s actions. This ‘diffusion of responsibility’6 allows directors (and through them, the corporation) to remain comfortably ignorant of even longstanding harmful corporate conduct. While the corporation’s failure to curb that misconduct may demonstrate negligence, its lack of (director-dependent) knowledge or intention will largely prevent it from holding more blameworthy mental states on which offences of dishonesty or unconscionability, for example, will depend. The common law has taken some steps to ameliorate the traditional approach by recognising that, sometimes, the purpose of the law’s prohibition will make it clear

that others (lower level managers, for example, or even just ordinary employees) are, in practice, the individuals responsible for making decisions and putting into operation systems and practices on behalf of the company.7 Yet even as developed in this way, the law’s focus remains on identifying the relevant human whose state of mind may be attributed to the corporation. Without further refinement, it does not respond to, or address, the diffused responsibility problem. Legislative reforms have been similarly unsuccessful in this respect. Statutory attribution or liability provisions modelled on those introduced by the Trade Practices Act 1984 (Cth), for example, expand the scope of the state of mind enquiry beyond the Board to any employee.8 Yet they still depend upon identifying some human repository of fault whose state of mind can be deemed to be that of the corporation. They do not address the challenges of the modern, complex corporation described above. By contrast, the Commonwealth’s unique ‘corporate culture’ provisions, which provide a novel and influential conception of organisational blameworthiness, have the potential to successfully address the problem of diffused responsibility.9 These turn courts’ attention away from solely addressing the state of mind of individuals, to considering the role of corporate policies and practices more broadly. But they have yet to be successfully operationalised. How, for example, does one prove what employees do when no-one is watching, if that is (as Commissioner Hayne suggested) the litmus test of corporate culture? And how does this conception relate to the specific mental states and standards of culpability, such as intention, knowledge, dishonesty and unconscionability, the subject of our general law and statutory doctrines? Commissioner Hayne sought to identify and address these sorts of attribution challenges when considering how the ‘fees for no services’ scandal could properly be characterised as involving dishonest conduct, notwithstanding repeated protestations of ignorance and ‘systems errors’ by offending corporations’ senior executives.10 As he explained, it is important to label and denounce egregious misconduct in appropriately serious terms, such as ‘dishonesty’, in order to effect general and specific deterrence. This requires proof (among other things) of the relevantly culpable corporate mind. However, Commissioner Hayne’s examination of this question assumed factual patterns in which individual employee actions and knowledge could be ascertained, whereas (as we have

...it was remarkable how often the CEOs of large, powerful and expert financial service providers (FSPs) attributed systemic and profitable wrongdoing to ‘systems errors’.

seen) these are typically fragmented and dispersed amongst multiple departments, reporting lines, individual employees and over time. The last factor is important, given that individual employees are prone to leave, resign, move on and forget, constantly creating gaps in the potential chain of corporate information. What is more, in many cases (including in the fees for no services cases), the key processes that generate harm are automated. Human employees are simply not involved, or are peripheral, or performing solely clerical tasks involving no application of independent judgement or discretion. How, in this largely automated environment, can we hope to find a principled means of identifying culpable corporate mindsets? Faced with such questions, I applied for and was awarded funding by the Australian Research Council to reconceptualise corporate fraud and, in particular, develop alternative doctrinal models for identifying the corporate mind in the civil law context.11 Research conducted pursuant to this grant has enabled me to expound a model of ‘systems intentionality’, which proposes that corporations manifest their states of mind through their systems, policies and practices.12 This model captures automated

processes as well as complex corporate systems that coordinate natural employees across diverse tasks and departments, over time. It also operationalises the insights from the ‘corporate culture’ provisions in a way that is practical and principled. In related research, Professor Paterson and I have identified a rich seam of jurisprudence developed by the Federal Court in cases addressing statutory unconscionable ‘systems of conduct or patterns of behaviour’, which both supports and develops this model.13 This research has proceeded alongside the Australian Law Reform Commission’s inquiry into Corporate Criminal Responsibility.14 As with my project, the ALRC inquiry was a consequence of, and response to, the FSRC. These two research programs have generated fruitful and even interactive research. Indeed, it was through dialogue with the ALRC officers, preparing submissions to the review and reflection on its interim and final reports, that I first started to develop a clear understanding of the potential pathway forward. I am now assembling national and international experts in the field of corporate attribution and responsibility to re-examine the ‘Culpable Corporate Mind’ through a

workshop and specialist collection, to be published with Hart Publishing next year. Serendipitously, the Law Reform Commission of England and Wales has this year embarked on its own three-year inquiry into corporate attribution laws.15 I understand that this inquiry will engage deeply with the growing body of Australianled insights, all radiating from the FSRC. Even more recently, and closer to home, the ripples from the FSRC have also lapped at the edge of the Western Australian and Victorian royal commissions into casino regulation and licences.16 In particular, in thinking about whether Crown (in its various corporate manifestations) is an ‘appropriate person’ to hold a casino licence, Crown’s corporate character and, hence, corporate mindset will be a key consideration. I have made submissions to both inquiries, again drawing on research that can be traced directly to the FSRC, which seeks to explain how the lens of ‘systems intentionality’ may provide a valuable perspective on Crown’s reported facilitation of money laundering through its Riverbank and Southbank accounts.17 We may expect that the reports of those commissions will provide further, required reading for those involved in any

aspect of ex ante or ex post facto regulation of corporate (mis)conduct and the role of the culpable corporate mind. It seems plausible to conclude, a couple of years out, that the FSRC has had a very significant impact on the research ecosystem, purely on the issue of corporate attribution. This is not to mention the huge impact it has had in identifying pressing issues of legislative design and financial services regulation more generally, now the subject of a separate three-year review by the ALRC.18 In particular, Commissioner Hayne’s articulation of six key principles that govern financial services regulation, together with his emphasis on principlesbased drafting and simplification, have been recognised as offering powerful insights that are now under serious examination and development. Here, I observe that the consequential work undertaken by the ALRC in mapping the complex financial services regulatory landscape is, to my knowledge, unparalleled amongst law reform or research programs and must be of significant interest to all sophisticated market jurisdictions concerned to effect useful reform. Indeed, its methodologies for computational data analysis across the Commonwealth statute book themselves provide novel research tools capable

of application in any field of legislative regulation. These significant developments arising from the FSRC have, potentially, global impact well beyond the halls of academia. In these straightened times, they may serve as timely reminders of the broader public benefit of the work done by both forms of public institution.

End notes 1

Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Final Report, February 2019).

2 For a range of examples, see: https://www.aph.gov. au/Parliamentary_Business/Committees/Senate/ Economics/NCCPEcoRocovery/Report 3 Jeannie Marie Paterson and Elise Bant, ‘Intuitive Synthesis and Fidelity to Purpose? Judicial Interpretation of the Discretionary Power to Award Civil Penalties under the Australian Consumer Law’ in Prue Vines and M Scott Donald, (eds) Statutory Interpretation in Private Law (Federation Press, 2019) 154. 4 See the ‘French factors’ developed in Trade Practices Commission v CSR [1991] ATPR 41-076 and now authoritative: see eg ACCC v Singtel Optus Pty Ltd (No 4) [2011] FCA 761, [11]; Singtel Optus Pty Ltd v ACCC [2012] FCAFC 20, [37] (Keane CJ, Pinn and Gilmour JJ); ACCC v Woolworths Ltd [2016] FCA 44. 5 Lennard’s Carrying Co v Asiatic Petroleum Co Ltd [1915] AC 705, 713; HL Boulton (Engineering) Co Ltd v TJ Graham and Sons Ltd [1957] 1 QB 159, 172 (Lord Denning); Tesco Supermarkets Ltd v Nattrass [1972] AC 153, 170 (Lord Reid).

7 Meridian Global Funds Management Asia Ltd v The Securities Commission Co [1995] UKPC 26, [1995] 2 AC 500, 91 (Lord Hoffmann). Meridian has been endorsed in in Australia in, amongst others, Director of Public Prosecutions Reference No 1 of 1996 [1998] 3 VR 352; (1997) 96 A Crim R 513, 517 (Callaway JA, with whom Phillips CJ and Tadgell JA agreed). 8 Section 84; now see, eg s 769B of the Corporations Act 2001 (Cth). 9 Section 12.3 of the Criminal Code Act 1995 (Cth). 10 FSRC Final Report, 151–7. 11 https://www.uwa.edu.au/schools/research/unravellingcorporate-fraud-re-purposing-ancient-doctrines-formodern-times 12 Elise Bant, ‘Culpable Corporate Minds’ (2021) 48 UWAL Rev 352. 13 E Bant and JM Paterson, ‘Systems of Misconduct: Corporate Culpability and Statutory Unconscionability’ (2021) 15 Journal of Equity 63. 14 Australian Law Reform Commission, Parliament of Australia, Corporate Criminal Responsibility (Final Report No 136, April 2020). 15 https://www.lawcom.gov.uk/project/corporate-criminalliability/; see initially Law Commission, Corporate Criminal Liability Discussion Paper June 2021 at https:// s3-eu-west-2.amazonaws.com/lawcom-prod-storage11jsxou24uy7q/uploads/2021/06/Corporate-CriminalLiability-Discussion-Paper.pdf. 16 https://www.wa.gov.au/government/perth-casino-royalcommission and https://www.rccol.vic.gov.au/ 17 The substance of the submissions is identical: see https://www.rccol.vic.gov.au/submissions submission 49 ‘UWA Law School’. 18 https://www.alrc.gov.au/inquiry/review-of-thelegislative-framework-for-corporations-and-financialservices-regulation/

6 Brent Fisse, ‘Reconstructing Corporate Criminal Law: Deterrence, Retribution, Fault, and Sanctions’ (1983) 56 Southern California Law Review 1141, 1189.

NEW CARS. Best Prices. FINEST SERVICE. Least Hassle.

1300 667 559 42 | BRIEF AUGUST 2021

Freedom

tion

vs Protec

n orders, inistratio aired hip and adm with imp guardians for people A guide to rt trusts cou and aking litigation decision-m

l Bowyer By Michae 1 May 202

FREEDOM vs PROTECTION: the free online book that will save you at parties By Michael Bowyer, Principal Legal Officer, Public Trustee

Has this ever happened to you? Saturday 10pm. A party. A friend of the host approaches you. FRIEND OF HOST: Hello. YOU: Hi. FRIEND OF HOST: I hear you’re a lawyer. YOU: Er, well, yes, but not on weekends. FRIEND OF HOST: I’m not asking for any legal advice. YOU: Okay. FRIEND OF HOST: But can you tell me what the law says about [insert area of law and a 20-minute explanation of the problem]? YOU: Sorry, I don’t know enough about that. FRIEND OF HOST: You are a lawyer, right? If you’re asked to comment on whether the penalty clauses in a 65-page contract are enforceable, I can’t help you. But there’s a good chance that the query is about a family member who has dementia, is recovering from a stroke or aneurysm, or has some other mental impairment. If so, you might solve things by asking your questioner to take out their phone and Google “Freedom v Protection”. The first entry might be an ad for mattress protectors. High up on the list, though, will be the online book that I’ve written called Freedom vs Protection: A guide to guardianship and administration orders, litigation and court trusts for people with impaired decision-making. Or you can send them this link: http:// publictrustee.wa.gov.au/freedom-protection

What’s Freedom vs Protection about? The book explains how the law strikes the difficult balance between a mentallyimpaired person’s right to make their own financial and lifestyle decisions in a free society, with the need to protect them from abuse, neglect and exploitation. It focuses on three main areas:

The appointment of guardians and administrators in SAT under the Guardianship and Administration Act 1990

legally represented. A party to one of these proceedings could use this book to find out more about what’s involved.

Civil litigation in the Supreme and District Courts for people under the age of 18 or with mental impairments

Court compensation trusts

A health professional may be asked – or ordered – to provide a report for a court, tribunal or assessor about a person’s mental capacity. Freedom vs Protection may give them the legal background to the request or order.

Why should a lawyer read Freedom vs Protection? If you want to specialise in criminal law, you can spend most, if not all, of your work time in that area. But if you represent people in guardianship or administration hearings in SAT, you’ll probably only do it every now and then. It’s harder to specialise and build up your expertise. Freedom vs Protection aims to make it easier by answering a lot of questions. For instance, what classifies as a “mental disability” under the Guardianship and Administration Act 1990? How useful is a Mini-Mental State Examination? How can one advocate for, or represent, a person in SAT? Can you recover your costs? How can a SAT decision be changed? What limits are on the powers of a guardian or administrator? What’s the “best interests” test? How significant is a person’s will when they’re still alive? Can and should SAT direct an administrator? What are the differences between an administration order and an enduring power of attorney? How can the assets of people with mental impairments be misappropriated? What can be done about that? If, say, you’re a commercial lawyer, you’re bound at some stage to encounter a client who’s having difficulty giving you instructions. Maybe another party to a contract doesn’t understand what’s going on. These situations can’t be ignored. This book can help. In civil litigation, most parties are mentally capable adults, a corporation or the government. When one of the parties has a mental impairment or is under the age of 18, it creates extra challenges, opportunities and complications for the lawyers in those proceedings. Freedom vs Protection answers questions about them. For instance, what advantages does a solicitor have when negotiating on behalf of a “person under disability”? When should the court be asked to approve a compromise? When should counsel’s opinion be obtained? What about confidentiality clauses? If an award of damages is made, what orders can be made to establish a trust? Can the money go into superannuation?

Who else might benefit from reading it? More than just annoying party guests. People who are charged with serious criminal offences normally have a lawyer, even if they don’t have any money. But most people who want a lawyer at guardianship or administration proceedings in SAT have to pay for one themselves. Plenty of hearings take place without anyone being

Anyone who wants to change the law should understand how it currently operates. This book explains that. I’m always dubious about claims that something is in “plain English”, but I’ve tried (honest!) to keep things accessible to laypeople. Chapter 2 is called “Legislation (if you’re not a lawyer)”; Chapter 3 is “Case law (if you’re not a lawyer)”. The book contains direct links to cases, legislation and reports. Much of the technical legal detail is in the footnotes.

Were there any challenges in writing it? The ongoing aim of a novelist is to make things interesting enough that the reader keeps reading until the end. Ian McEwan wrote a novel – The Children Act – about a judge who decides whether a 17-year-old Jehovah’s Witness with leukaemia should have a blood transfusion. It was compelling enough to be turned into a movie, with Emma Thompson in the lead role. When I decided to write a legal reference book, I soon realised that Emma Thompson was unlikely to appear in a movie that explains some of the exceptions to Order 66 rule 24 of the Rules of the Supreme Court 1971, but it’s important that Freedom vs Protection does. In an attempt to redress the problem, there are people and things you wouldn’t expect to see in a government book about financial and lifestyle management in twenty-first century WA. Elizabeth the First, the Profumo Scandal, Snow White, Walt Disney, Doris Day, Mary Poppins, 10cc, The Sound of Music and Franklin D Roosevelt all get mentioned. There’s a suggestion on the correct way to pronounce margarine, a short analysis of the French Revolution, the different meanings of su casa in Spanish and a comparison of ways English monarchs killed their relatives.

Does it just cover WA? Yes and no. It is specific to WA. Other states and territories have their own systems. But Freedom vs Protection addresses some issues that are common throughout Australia. No matter what the law says, some problems with recovering money for people with dementia are the same, whether they live in Newcastle, Bendigo, Whyalla or Bunbury.

Do you have to pay to download it? Absolutely not! Just click on http:// publictrustee.wa.gov.au/freedom-protection. I hope that you do.

Who Moved My Bitcoin?

Blockchain and cryptocurrency basics that won’t put you to sleep by Verginia Serdev-Patterson B Com LLB LLM1

Think of an unstoppable dragon in a fantasy tale. The dragon is coming. It is inevitable. You have three choices. You can try to kill it with some version of a sharp stick, hide and hope you and everything you own doesn’t get turned to ash, or tame it and ride it into battle. Blockchain technology is that dragon, and cryptocurrency: the lifeblood in its veins. They are a global, borderless phenomenon and a technological advancement so powerful that anyone with common sense would try to harness their potential. You can be sure that they are now here to stay. By the end of this article, you will understand why.

What is blockchain technology? In short, it is the next stage in the evolution of the Internet: the so-called Internet 3.0. We still (mostly) live in the age of Internet 2.0. Internet 1.0 was the digital primordial soup version, before it was organised and made navigable for the masses. Remember what Internet 2.0 did? It completely transformed our lives. It was hailed, in terms of human advancement, as the new industrial revolution.

So why does Internet 2.0 need improvement? It’s highly centralised, resulting in large power imbalances that reinforce and entrench various inequalities. A few large organisations now effectively control most essential aspects and services, e.g. finding information (Google), or web hosting (AWS). The more centralised any system becomes, the more vulnerable it is, with large-scale consequences. Remember the global outage on 17 June 2021 that hit Australian banks, Australia Post, Telstra, airlines, social services like Twitter, Reddit and Snapchat, Yahoo Mail, and the Hong Kong Stock Exchange? How did this happen? Their content delivery network (CDN) service provider, Akamai, explained it thusly: “A routing table value … was inadvertently exceeded.”2 This followed on the heels of the 8 June 2021 outage that shut down news sites around the world when a customer of another CDN, Fastly, changed a setting.3 No malicious actors involved. Just a tiny programming glitch, causing widespread chaos.

44 | BRIEF AUGUST 2021

Internet 2.0 is largely insecure. The vast majority of data and communications are not adequately protected from intrusion. There have been hundreds of serious data hacks over the years. We may be unknowing victims of several. Things are not getting better in that respect. Internet 2.0 is extremely invasive of our privacy. Our data is harvested by digital landlords like Facebook for the privilege of using their services. It’s sold and re-sold without our knowledge, sometimes even our permission, to entities we’ve never heard of, located who knows where, regulated by who knows who, and probably not at all. Its recipients often don’t bother to secure it. In a sense, we have become digital serfs, able to exercise limited control over our digital lives, unless we choose to opt out of many of the conveniences and advantages of modern technology.

How can blockchain help? Blockchain technology is the culmination of the latest advances in computer science and cryptography that, firstly, enable online safety and privacy like never before. Blockchain communications and transactions are end-to-end NSA-level encrypted.4 Internet users can secure their private data (such as browsing history, financial transactions, ownership and identity) and control its dissemination on a direct one-to-one basis. For example, X can authenticate her identity to Y without providing Y with any private documentation. This is already a reality. Safe, encrypted QR-code based digital IDs can be used to log into websites without username, password or 2 factor authentication. One example is DigiByte’s AntumID, which is integrated into Microsoft Azure5 and Amazon Web Services. The Brave internet browser blocks all cookies, trackers and ads, which makes the browsing experience faster and saves on bandwidth. It also gives users the option to monetise their browsing history by earning cryptocurrency — the Basic Attention Token (BAT) — if and when they wish to view privacy respecting ads on the browser. Its default search engine, DuckDuckGo, keeps no record of searches.6 The most powerful and revolutionary aspect of blockchain technology is its decentralized, “trustless consensus” mechanism, which renders intermediaries previously indispensable to almost every aspect of global economic activity redundant. Trusted intermediaries have always been necessary to enable strangers to confidently transact with each other. They grease the wheels of global trade and commerce and are an essential catalyst to growth and prosperity the world

over. Think of banks, payment platforms like Visa, Mastercard or PayPal, and trading platforms like eBay and Amazon. Without them, millions of people and businesses would be poorer and enjoy far more limited economic opportunities. However, trusted intermediaries come with economic and social costs. They can enjoy privileged status, exercise disproportionate power, impose substantial rents and propagate or exacerbate existing inequalities. The first blockchain was born in the midst of the bailout of “too big to fail” banks by taxpayers in the aftermath of the Global Financial Crisis, and its stated purpose was to eliminate the role of banks in electronic payments.7 Cryptocurrency payments pass directly from one web wallet to another anywhere in the world. Web wallets are nodes in a blockchain that can receive and make payments in its native cryptocurrency. They are different to bank accounts in a few respects. They are selfcustodied, which means that the wallet holder is in direct physical possession and control of its contents at all times. Bank

accounts are actually controlled by the bank, and transactions within them are permissioned by it. However, unlike bank transfers, cryptocurrency transfers are irreversible. No name or any private information is attached to a web wallet, or needs to be disclosed to anybody when it’s created. The wallet generates an address (a public key), which looks like a long string of random characters, at which it can receive the cryptocurrency. Some wallets can generate a different address for every transaction, like a new berth for each new ship that arrives at the same port. The movement of cryptocurrency from one address to another is all anybody sees on the blockchain ledger. To access the cryptocurrency on the wallet requires a password or biometric authentication. Otherwise, the wallet’s private key, normally comprised of 12 random words that must be entered in strict order, will be required. Anyone who has the private key to a wallet can unlock it, even if they don’t know the password. Conversely, if both the password and the private key are lost, the wallet can never be opened because of the effectively unbreakable encryption used. There are many tragicomic tales of lost keys to a crypto fortune.8 However, it doesn’t stop with the banks. You will see after reading the next section, which explains how blockchain works, that it can eliminate every toll collector that has heretofore provided

trust in some form, from safe custody to authentication to auditing. This is hugely disruptive to some of the largest, most powerful and lucrative industries in the world. The services they provide are human-led and human-executed. This introduces friction in the form of (enormous) cost, delay and error, as well as man-made structural barriers to entry which may exist for reasons of tradition, bad policy or sheer prejudice. A blockchain replaces all this with a computer program which is neutral, reliable and operates 24/7/365. It confirms and executes transactions automatically, accurately, quickly and cheaply. Every successful blockchain of good repute that has stood the test of time is public, open-source and decentralized. This ensures that nobody can interfere with individual on-chain transactions or set the overall agenda for the benefit of a small minority. The computer code of a public blockchain, and every transaction that takes place on it, are subject to open audit and scrutiny. Changes to the code that substantively affect how the chain will operate are debated by developers and within the wider blockchain community before they are executed. Many blockchains have voting mechanisms. Anyone anywhere in the world can get involved. Voting rights are usually gained by running the blockchain software on your computer or smartphone in exchange for earning the blockchain’s native cryptocurrency. This ensures that people with genuine interest and stake in the future of the blockchain get a say in decisions.

How blockchain works A blockchain is a digital distributed, immutable ledger. It is made up of data blocks, each recording every transaction that has occurred on the network over a specific period of time, joined together through a process called “cryptographic hashing”. The blockchain is “transmitted in peer-topeer fashion across a global network with no intermediary and no central party to approve transactions.”9 Nodes are the computers, servers and mobile phones running the applications that connect to and contribute to the blockchain. The more nodes a blockchain has, the more decentralised it is. Full nodes are the backbone of the system. Running one requires downloading the entire history of the blockchain. A key aspect of the design of a blockchain is the consensus mechanism by which thousands of full nodes agree on a single history of the blockchain. Only if more than 50% of all nodes confirm that a transaction is legitimate will it be executed and recorded. Once recorded, it can’t ever be changed. It is in the interest of all participants running nodes (we’ll call them miners) that the ledger remains accurate. If transactions can be tampered with, the blockchain will become worthless, as will the cryptocurrency in which miners are paid to run it. The more nodes there are, the stronger and more reliable the blockchain is, and less vulnerable to tampering.

You can have consensus (therefore authentication) of any type of digital content on the blockchain: documents, audio, video, as well as digital assets like cryptocurrency and tokens. This allows the technology to transcend well beyond its original function of redesigning electronic payments, especially with the advent of smart contracts. The importance of decentralisation cannot be understated. A decentralised system has no central point of failure. It is resilient and adaptive, able to survive extreme challenge and upheaval. The world’s most established blockchains today, Bitcoin in particular, have survived numerous, relentless attacks over the years. A dragon has central points of failure, which is why you can kill it with a sword. A globally distributed bee swarm does not.

The structure of a blockchain Blockchains have three layers. The core communication layer is where transaction information is exchanged between nodes and consensus is reached on the history of the blockchain. The cryptocurrency layer is where the native coin is issued from. It exists to reward miners for running nodes on the communications layer. Without them, the blockchain will not be able to process new transactions and mint new blocks and will simply stop working. The cryptocurrency is therefore necessary to incentivise as many people as possible to operate the blockchain on their computers and mobile phones. It is possible to run a blockchain without a cryptocurrency if it is centralised (i.e. the people who control it run all the nodes). Private blockchains exist and have their uses. For reasons already explained, they are more fragile and vulnerable to tampering. I mention this to stress the central importance of cryptocurrency in blockchain operation, and why calls for it to be “banned” make neither logical nor technical sense. The most famous cryptos in the world are Bitcoin (BTC), the native coin of the Bitcoin blockchain, and Ether (ETH), the coin of Ethereum. An altcoin (alternative coin) is any coin that is not BTC (or, according to some, ETH), being the cryptocurrencies on all the other blockchains. People transacting on a blockchain must pay for transactions in its native coin. The transaction fees go to the miners. So, what kind of transacting happens on a blockchain? The top layer of the blockchain is the applications layer, where decentralised applications (dApps) are built and interact with the blockchain. It’s also where other digital assets such as tokens are created. A blockchain needs to have smart contract capability for dApps to operate. DApps offer products and services using blockchain technology, and as you will recall, all transactions on the blockchain must be paid for in its cryptocurrency. As more blockchain technology integrates into our everyday lives

Many blockchains are still in their infancy in terms of delivering on real world applications, but the technology’s disruptive potential guarantees that future giants like Amazon, Google and Netflix will be born on the blockchains. and demand for it increases, cryptocurrencies will gain widespread use. DApps usually have their in-house reward token that can be earned or purchased and has specific uses and benefits. Successful dApps have very valuable tokens and contribute utility and value to their native blockchain. This also increases the value and utility of the native coin, because the more activity there is on the blockchain, the more demand there is for the coin to pay for transactions. Tokens and coins can be traded on crypto exchanges, provided there is a market for them. They can also be leant and borrowed against, staked for rewards or used in other profit-making activities. The dApp tokens are fungible (interchangeable one for another). On the other hand, non-fungible tokens (NFTs) are a digital asset that represents a real-world object. Each NFT has a digital signature that makes it unique and contains built-in authentication, which serves as proof of ownership. Digital tokens can represent any asset, from equities to contractual rights to real estate, or fractions of the whole. This allows for the tokenisation of real-world assets and has the potential to revolutionize anything from conveyancing to venture capital markets.

Why have more than one blockchain? Isn’t this confusing and inefficient? Why not just build everything on one blockchain? The answers to this are innovation and competition. Bitcoin started the blockchain revolution. It is the king of what it does, and for 12 years no challenger has unseated it, but its design and purpose were limited as discussed. Ethereum took the revolution to another level when it pioneered smart contracts, dApps, NFTs, DEXs (decentralised cryptocurrency exchanges) and DeFi (decentralized finance) applications. DeFi has enabled cryptocurrency holders to earn yield on their coins and tokens in a number of inventive and in some cases extremely lucrative ways. Ethereum remains the busiest, most built-up blockchain for the time being, and ETH has been the fuel that

46 | BRIEF AUGUST 2021

powers blockchain business and industry. ETH has the second highest market capitalisation after BTC. It is predicted that if Ethereum maintains its growth trajectory, ETH’s market cap will one day exceed that of BTC — a concept known in the cryptosphere as “The Flippening”. Ethereum enjoys significant first mover advantage, but like Bitcoin, it is relatively expensive and slow to transact on, especially at busy times. Both blockchains use a first-generation proof of work consensus mechanism which does not age well, as it requires vast computing power to run as the blockchain lengthens. Both have had to deploy “second-layer solutions”, like Bitcoin’s Lightning network and Ethereum’s Polygon network, to move activity to sidechains to improve speed and efficiency. Newer blockchains are constantly improving the design and functionality of the technology. Polkadot and Cardano popularized the faster, more energy-efficient and democratic proof of stake consensus mechanism. Cardano is developing its own programming language, Plutus, to enable dApps readying to deploy on its network to write what sound like the most complex smart contracts yet. Thor developed a Proof of Authority algorithm ideal for logistics applications like VeChain, a supply chain management platform that is used by luxury brands, food importers, even hospitals, to streamline business processes and information flow for complex supply chains. Solana is working on being a central hub of interoperability between blockchains, and has a mind-blowing processing speed of 60,000 transactions per second, which in future may reach 710,000 transactions per second. This is due to its lightning-fast solution algorithm (Proof of History) and communication protocols (Gulfstream and Turbine).10 As much of blockchain technology is open source, popular dApps and protocols can be replicated and improved on other blockchains. In 2020 the Binance Smart Chain addressed the speed and cost of DeFi activity on Ethereum by cloning the wildly popular DEX Uniswap. At the time, transactions on Uniswap could take hours to clear and fees had become so high that ETH gas fees could exceed the price of the tokens being exchanged. Access to Uniswap’s liquidity pools and other lucrative features had become the preserve of hedge funds and other deep pocket players until Pancakeswap replicated them at a fraction of the speed and cost for retail investors. This is how competition and innovation thrive on the blockchains. While a blockchain is its own closed ecosystem, there is already some interoperability across blockchains, with muchmore to come. Interoperability will strengthen competition and lead to an explosion of new uses and possibilities.

The future Many blockchains are still in their infancy in terms of delivering on real world applications, but the technology’s disruptive potential guarantees that future giants like Amazon, Google and Netflix will be born on the blockchains. The coins of influential blockchains will be as valuable as any commodity without which we cannot make do. The World Economic Forum has a lot of easy to understand and informative material on blockchain technology, its potential, and its real-world uses.11 It even provides a blockchain deployment toolkit12 to assist organisations with tools and information for undertaking blockchain projects and developing blockchain business solutions. It is a good place to go for “baby steps” if you want to learn more about the technology. So, step out of your hut and make friends with the dragons. Most of them are still infants, but one day soon they will rule the sky, and they will breathe fire.

End notes 1

Verginia Serdev-Patterson is the Claims Manager at Law Mutual (WA). The subject matter of this article is an area of private interest. The opinions in this article are the author’s and do not represent the views of Law Mutual (WA) or the Law Society of Western Australia.

2 “Akamai says a technical problem not cyber attack was behind mass bank, corporate web outage”, Stephanie Chalmers and Michael Janda, ABC News, 17 June 2021, https://www.abc.net.au/news/2021-06-17/banksexperiencing-outages-internet-banking-app/100223900 3 “Fastly blames global website outage on software bug that was accidentally triggered by customer”, ABC News, 9 June 2021, https://www.abc.net.au/ news/2021-06-09/global-website-outage-software-bugtriggered-by-customer-fasty/100203290 4 SHA-256 is the most widely used encryption algorithm and hashing function used in blockchain and is part of the SHA-2 family developed by the National Security Agency of the United States of America. 5 See also the password generator plug-in for Microsoft Edge here: https://www.microsoft.com/en-au/p/digiidantumid-easy-extension-advanced/9p6j2s3w0d8r?activ etab=pivot:overviewtab 6 Check it out at https://brave.com 7 White paper entitled “Bitcoin: A Peer-to-Peer Electronic Cash System” by Satoshi Nakamoto, 31 October 2008, https://bitcoin.org/bitcoin.pdf 8 “Lost Passwords Lock Millionaires Out of Their Bitcoin Fortunes”, The New York Times, 12 January 2021, https://www.nytimes.com/2021/01/12/technology/ bitcoin-passwords-wallets-fortunes.html; “5 Stories About People Who Lost Their Bitcoin”, John Mecke, Altcoin Magazine, 28 October 2019, https://john-mecke. medium.com/5-stories-about-people-who-lost-theirbitcoin-cdaaae329468 ; “Bitcoin owner whose story went viral after he lost his wallet password says he has ‘made peace’ with potential $220 million loss”, Business Insider Australia, 17 January 2021, https:// www.businessinsider.com.au/bitcoin-owner-who-lostpassword-made-peace-potentially-huge-loss-20211?r=US&IR=T; 9 Jared Tate and Andrew Knapp, “Blockchain 2035: The Digital DNA of Internet 3.0”, published by BlueShed LLC, 28 October 2019 10 https://cointopsecret.com/2021/07/05/how-the-solanaworks-history-perspectives-criticism/ 11 You can find it at www.weforum.org/agenda/archive/ blockchain/. 12 https://widgets.weforum.org/blockchain-toolkit/index. html

‘Me Too’ on the Character Radar Gino Dal Pont Professor, Faculty of Law, University of Tasmania Ethics Column ‘Good character’ has long been crucial to being a lawyer. Yet the boundaries of what challenges ‘good character’ have a capacity to be fluid in time. The modern ‘Me Too’ era has clearly placed certain forms of misbehaviour on the ‘character radar’. Questions surrounding character have long proven a core inquiry when it comes to both a person’s admission to practice and when it comes to professional discipline. This is hardly surprising, as the jurisdiction to admit is the flipside of the jurisdiction to mete discipline (in particular, via protective orders in the form of suspension or striking off). Moreover, the heightened trust the public and the courts place in members of the legal profession in administering justice has translated to a long-standing expectation that lawyers exhibit good character as a prerequisite to entering and remaining in practice. Yet it should not be assumed that what goes to ‘good character’ — or, perhaps, more accurately, what may reveal its absence — remains static over time. For instance, in the 1800s a requirement of ‘good fame and character’ did not preclude the American legal profession allowing persons with convictions for serious offences, including murder, to enter and remain in practice.1 What ultimately prompted a shift in thinking in the United States was not jealousy for good character but the 1920’s influx of immigrants perceived to threaten the profession’s standing.2 Of course, one could argue that the preceding antecedents were relics of a

former time when, respectively, a frontier (‘wild west’) mentality ruled and racial (and other) forms of discrimination were ingrained. But this should not be read as suggesting that, even in modern Australia, the ‘character’ goalposts are incapable of shifting. For instance, ostensibly triggered by adverse media coverage rather than any pro-activity within the profession itself, only in comparatively recent times have courts and professional bodies seen fit to view nonpayment of tax as going to character.3 And in 2007, in a case involving the revocation of admission to practice, the Victorian Supreme Court conceded that ‘[i]ncreasingly, there is an expectation that even ancient peccadillos should not be left out’ when it comes to disclosure, even though ‘[i]n the past, perhaps, the obligation was not always seen as going quite so far’.4 Against the backdrop of fluidity in character assessment, in an era when the ‘Me Too’ catch-cry has entered our vernacular, it should not be surprising that behaviour that in the past may not (but should) have cast a shadow over a lawyer’s character may not be viewed otherwise. Weighty anecdotal evidence of sexual harassment (and worse) within the legal profession over a lengthy time frame was a driver for including a proscription to this effect within professional rules.5 Explicitly bringing this into the fold of professional discipline reflects a (welcome) change in character inquiry. That we should now start witnessing disciplinary case law involving sexual harassment should therefore prove little surprise. For example, a tribunal decision from March of this year issued a disciplinary finding against a male barrister who, in a state of inebriation during a barristers’ clerks’ social function, made sexual gestures and comments to a female assistant clerk.6 The

LEAVING A

backdrop to this event was apparently an ‘in joke’ between the barrister and a colleague involving a ritualised greeting parodying oral sex. The tribunal considered that this interaction ‘was clearly not appropriate at a barristers’ clerks’ dinner’, as it ‘had the potential to offend onlookers’.7 But it was the barrister’s extension of this greeting to the clerk, who was previously unknown to him, while lightly pushing the clerk’s head towards him and saying ‘suck my [readers can guess]’, that formed the principal basis for the disciplinary complaint. That the barrister’s behaviour, which was substantiated in part through CCTV footage, was a once-off, occurred over a very brief period and was influenced by intoxication ultimately did not preclude a declaration of unsatisfactory professional conduct. He was saved from a finding of professional misconduct, it seems, by a finding that, although ‘poorly judged, vulgar and inappropriate’,8 his behaviour was not a sexual advance. It nonetheless marked a stain on his character, and with this a timely reminder that, from a professional perspective, the character goalposts have indeed shifted.

End notes 1 See R Roots, ‘When Lawyers Were Serial Killers: Nineteenth Century Visions of Good Moral Character’ (2001) 22 Northern Illinois UL Rev 19 at 22–32. 2 D Rhode, ‘Moral Character as a Professional Credential’ (1985) 94 Yale LJ 491 at 499. 3 A seminal decision is New South Wales Bar Association v Cummins (2001) 52 NSWLR 279. 4 Re OG (A Lawyer) (2007) 18 VR 164 at [123] per Nettle JA and Mandie J. Cf Law Society of Tasmania v Richardson [2003] TASSC 9 at [80] per Crawford J. 5 See Legal Profession Conduct Rules 2010 (WA) r 17(5). 6 Council of the New South Wales Bar Association v EFA [2021] NSWCATOD 21. 7 Ibid at [56]. 8 Ibid at [76].

LASTING LASTING LEGACY LEGACY

HOMELESS

WILL HELP

DOGS

IN WA

Attorney General’s

Update to the Profession by the Hon John Quigley LLB JP MLA

ast December I celebrated with a quiet drink to mark my 45 years in the legal profession. Throughout my time as a lawyer, parliamentarian and now as Attorney General, I have seen the law achieve remarkable victories for justice. But I have also witnessed the law oppress and marginalise the most vulnerable people in our society. I have never been one to accept that things should be done in a particular way because that is how they’ve always been done. I would encourage all practitioners to think the same. If you see that the law is failing you, failing your clients, failing us, I want to hear about it. I believe that it is incumbent on all legal practitioners, as administrators of justice, to always consider how we can do things better. I have included here some brief reflections on the justice reforms achieved during the McGowan Government’s first term—and have set out some of the most significant reforms we will be pursuing during this term.

Last term Last year, considerable resources across government were dedicated to responding to the COVID-19 pandemic. This was no different for my ministerial portfolio. I have been continually impressed by the diligence and hard work of public servants, including those at the Department of Justice, Office of the Director of Public Prosecutions, State Solicitor’s Office and Parliamentary Counsel’s Office. A special mention goes to WA’s Solicitor General, Joshua Thomson SC, who along with his junior counsel and instructing solicitors from the State Solicitor’s Office, successfully defended Clive Palmer’s now notorious constitutional challenge to the State’s border policy. Throughout the last term of government, my priority was to implement a number of urgently needed reforms. This started

48 | BRIEF AUGUST 2021

early in the term of government with the removal of the limitation period for historical sexual abuse claims. Later in the term, the Government implemented a range of election commitments aimed at tackling family violence, including a new “suffocation and strangulation” offence and a “persistent family violence” offence. These new offences expressly criminalise this unacceptable conduct, which had otherwise not been adequately prohibited by the criminal law. The fines enforcement regime was overhauled so as to significantly restrict the circumstances in which a person may go to jail for non-payment of fines, being only in exceptional circumstances where there has been wilful and repeated failure to comply with a Work and Development Permit. Since those reforms were implemented, no person has been imprisoned for a fine default. This is a significant step forward from a regime that disproportionately affected Aboriginal people and, self-evidently, imprisoned those who could not afford to pay their fines. A high risk serious offenders regime was introduced to give the Supreme Court the power to order continuing detention or supervision of serious violent offenders, in the same way that was already available for serious sex offenders. This regime— reserved for the most serious violent criminals—is crucial in protecting the community from high risk offenders.

Next steps Lapsed Bills There are many Bills that I introduced in the Lower House during the last term of government which languished in the Upper House and lapsed upon the prorogation of Parliament. These included much needed reforms to intestacy laws (specifically increasing the statutory legacy) and appeal rights for second and

subsequent criminal appeals. There was also a Bill, which has now been reintroduced into Parliament, to apply the Legal Profession Uniform Law as a law of this State. This law, once introduced, will simplify and standardise regulatory obligations, cut red tape for legal practitioners, and provide consistency for consumers of legal services across jurisdictions. While the changes to the regulation of our profession will take some time to familiarise ourselves with, I am confident that this legislation will be to the advantage of WA lawyers. I am hoping that these important reforms can pass through our newly constituted Parliament as quickly as possible.

Criminal Law (Mental Impairment) Bill One of my highest priorities for this term of government is to introduce legislation to replace the Criminal Law (Mentally Impaired Accused) Act 1996. This regime is in desperate need of reform. The proposed reforms will significantly improve the treatment and management of persons with mental impairment in the justice system, including through:

Expanding the disposition options available to the judiciary so that community-based orders are available for people found unfit to stand trial.

Limiting the terms of custody orders to ensure they align with, and are no longer than, the likely sentence had the person been found guilty.

Introducing procedural fairness provisions to provide for the rights to appeal and review.

Corruption and organised crime One topic that people continually raise with me is what can be done to combat the scourge of corruption and organised crime. From my perspective, one of the most useful things government could

have possibly done was to enable the Corruption and Crime Commission to once again operate at full throttle by having a full-time commissioner. As many of you will be aware, due to a peculiar statutory reappointment process, last year the reappointment of the previous Commissioner, the Hon John McKechnie QC, was blocked by a lone Liberal Upper House MP, at the very time Mr McKechnie was overseeing an investigation into Upper House MPs. As a result, the Government introduced legislation to resolve the impasse by reappointing Mr McKechnie as CCC Commissioner. Mr McKechnie is the best corruption buster this State has ever seen and I am pleased he has returned to the helm. I would also like to thank the Acting Commissioner, Scott Ellis, for his assistance while the office was vacant. The Government is also considering its options to fight organised crime by restricting and disrupting communication and networking between convicted offenders.

Uniform Evidence Law My Department is working on the development of a new evidence Act for Western Australia. The new Act will adopt those aspects of the Commonwealth’s uniform evidence legislation that would benefit WA, retain existing WA provisions that are necessary for the proper administration of justice in WA, and introduce new provisions that respond to recent inquiries, such as the Royal Commission into Institutional Responses to Child Sexual Abuse.

Bail reforms My Department is urgently progressing targeted amendments to the Bail Act 1982 to strengthen protections for alleged child victims of sexual abuse. You would no doubt remember young Annalise Ugle who died by suicide last year after her alleged abuser was released on bail. The Department will also continue to progress a broader package of bail reforms with a focus on improving the operation of the bail system and reducing unnecessary

custody while on remand.

Reducing Avoidable Remand Project In 2019, my Department embarked on an ambitious four year justice reform project aimed at improving community safety, reducing the rates of Aboriginal incarceration and reducing the forecast growth in the adult prisoner population, through a suite of initiatives and significant investment in programs and services. One of the key initiatives is the Reducing Avoidable Remand (RAR) pilot. This is a 3-year pilot program, based at Perth Magistrates Court and Broome and Derby Magistrates Courts in the Kimberley region. The RAR initiative contributes to improving community safety by reducing offending behaviour and addressing the over-representation of Aboriginal people in custody.

Judicial Commission I have long been an admirer of the Judicial Commission model of handling complaints about the judiciary. Recent events in the Commonwealth sphere have diminished the standing of the judiciary in the eyes of the public and a Judicial Commission would go a long way to ensuring the judiciary in WA continues to be held in the very high esteem that it currently enjoys among the public. I believe a Judicial Commission would be for the benefit of both the public and the judiciary in ensuring complaints against judicial officers are handled appropriately, and I intend to bring this reform to Western Australia.

Electoral Reform In this new term of government, the Premier has bestowed a new hat on me: Minister for Electoral Affairs. As a lawyer and parliamentarian, I have a particular interest in how members are elected to Parliament. However, I admit that I had no idea about the extent of the malapportionment in the Legislative Council. For example Wundowie, a township on the way to Northam, has a

vote which is weighted to be four times the value of a vote in Wooroloo, which is only 7.5 kilometres closer to Perth. The Government has publicly committed to undertake a thorough review of how electoral equality might be achieved in the Legislative Council, and how its proportional representation system should distribute preferences. This was instigated following the anomalous outcomes at this year’s State election—including one member who was voted in with just 98 primary votes—which highlighted just how flawed the system is. These issues go to the very heart of our democratic institutions and any reform requires careful consideration. To assist Government in its deliberations, an expert panel comprising three eminent electoral and constitutional law experts and led by former Governor Malcolm McCusker AC CVO QC was convened. A public consultation process was recently undertaken and I am heartened by the interest the public has taken in this important issue.

In closing Through these reforms, I am reminded that the law is anything but static. The law develops as society develops. Unfortunately, however, sometimes the law does not keep pace with society. For example, there is still much more the law needs to do to catch up to the modern understanding of equality and fairness, and there is much more the law needs to do to help undo the significant intergenerational disadvantage suffered by Aboriginal and Torres Strait Islander people. Law reform cannot be a political goal for any one Attorney General, or any one Government. It needs to be a lifelong commitment made by society. Even if I could implement every possible law reform today, in no time at all, we would have new innovations, new ideas and new experiences that would necessitate further change. To paraphrase Dr Martin Luther King Jr, the arc of the moral universe bends toward justice. As Attorney General, I hope to do everything I can to ensure our system of laws bends toward justice.

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

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

Suite 4, 5 Colin Street, West Perth WA 6005 T (08) 9322 3300 F (08) 9322 3355 www.shearnhrlegal.com.au 49

Environmental Protection and Economic Development: A Poorly Executed Balancing Act Tim Dickson 2020 NELA Winning Essayist

Introduction The Environment Protection and Biodiversity Conservation Act 1999 (‘Act’) is the federal framework guarding our environment from unchecked harm. It ensures matters of national environmental significance (‘MNES’) are considered when assessing domestic developments or changes in land use. The Act applies where before assessment, an action (projects, developments, undertakings, activities or an alteration of these things)1 is proposed in a referral where a preliminary decision is made on whether the action requires assessment . This screening process involves the submission of a referral by a proponent, a public comment period and the decision by the relevant minister. An action will either be determined a ‘controlled action’ because it is likely to have a significant impact on MNES or not a controlled action because it is unlikely to have a significant impact, or it falls under an exemption.2 The controlled action decision has significant consequences, including subjecting significant impact referrals to environmental assessment. In practice, proponents have submitted separate referrals constituting parts of one large project – these are known as split referrals. Split referrals may allow a person to sequence and structure a project or development. However, split referrals may diminish the integrity of the assessment if a project is not considered in its entirety. This requires a balance to be struck between business efficacy and environmental protection. Section 74A of the Act was introduced to provide discretion for the minister to reject split referrals. The criterion of this discretion is whether the split referral is ‘likely to promote the objects of the Act’.3 It is a case-by-case decision and involves balancing between the practicality of sequencing a project against the integrity of a comprehensive environmental assessment of all its components. Recent use of the split referral process in South Australia has raised serious questions around the legitimacy of s74A and its ability to ensure environmental protection. The referral, assessment and approval process under the Act is drafted to limit negative impacts on the environment while facilitating economic development. This article explores

50 | BRIEF AUGUST 2021

how this balance – in practice – favours development; environmental consideration is not prioritised in decision-making. While such a proposal is consistent with the conclusions of Professor Graeme Samuel’s 2020 Independent Review of the Act, this article provides evidence based on no recorded cases of the s74A discretion being used to reject a split referral since its inception, despite a recent opportunity to do so. This article attempts to reposition one’s perspective when looking at environmental law in Australia, introducing earth jurisprudence theory to analyse the capitalistic nature of the current environment law framework and encourage reform.

A repositioning of perspective - Earth jurisprudence theory The current assessment and approval system, while being refined, or progressed, since its inception, has always been rooted in Australia’s neo-liberalist and capitalist economic focus.4 Australia is one of many industrialised nations whose ‘complex progrowth system’ is resulting in current rates of consumption of natural resources that are unsustainable and a rate of biodiversity loss that is accelerating.5 Australia’s rates of biodiversity loss are second in the world,6 the number of threatened species is increasing, and there are international concerns for some of Australia’s most well-known heritage sites.7 As an alternative to the current anthropocentric, theoretical paradigm of environmental governance in Australia, Earth jurisprudence theory diverges from a human-centred perspective and places the principle of Earth community at the fore – acknowledging humans’ interconnectedness with nature, and that the natural world does not exist for human use and exploitation.8 Simply put, human beings are not separate or superior to Earth – we are one part of the Earth community.9 This ecocentric approach is not opposite to anthropocentrism and does not remove the human as centre and replace it with nature, but rather draws humans back into a contextual whole with all ecological entities on Earth.10 In this sense, Earth jurisprudence could be viewed as a type of soft ecocentrism. Of course, opponents of Earth jurisprudence may argue it rebalances the scales of human activity on the one part and environment on the other part to an extreme, and affords environmental protection at an unnecessary cost to human development. However, Earth jurisprudence does not aim to apply any principles directly as new laws, or produce a takeover of the legal system.11 It seeks to require current lawmakers, in the current process, to formulate laws consistent with the integrity of nature as a ‘limit for Human Law’ – in this way centralising environmental ideals at the core of formulation, and not imposing them from the outside in.12 Regardless of interpretation, Earth jurisprudence advocates are united in the belief that the anthropocentric paradigm on

which the legal system is founded must be remodelled.13 A paradigm shift away from anthropocentrism is certainly not imminent. However, an acceptance of the intrinsic value of nature without denying the moral status of human beings could be a suitable entry point to an ecocentric shift. The flourishing of the Earth community must be recognised as a prerequisite for human existence, not an afterthought. In the context of the Act, Earth jurisprudential law-making and decision-making require a repositioning of perspective. When placing environmental protection against economic needs, Earth-based principles must be the foremost consideration. Such a shift seeks to address the findings from the Australian National Audit Office (ANAO) which concluded that environmental risk is not currently effectively regulated under the Act.14 Despite some objects of the Act aligning with Earth jurisprudence theory by aiming to protect the environment and conserve biodiversity, their achievability is difficult to reconcile. The interim report to the 2019/2020 Act Review notes the Act is ‘not clear’ on its environmental outcomes and does not frame how objectives are to be interpreted or applied.15

Ecologically Sustainable Development (ESD) The promotion of ESD is contained in the objects, a concept which demonstrates the inherent conflict and balance required between environmental and economic concerns. While, initially, the government stated that no factor should predominate over others,16 the government later claimed that the principles encompass a ‘very strong environmental emphasis’.17 Contrary to this, I argue that in practice the decisionmaker has discretion to favour whichever side is desired.18 An expert paper on ESD supports this argument, finding decisionmakers are given no guidance on the practical implementation of ESD.19 This leads to a simple application of administrative law, whereby the weighing of priorities in individual decisions is a matter for the decision-maker.20 However, in practice I contend that decision-maker’s discretion ‘invariably favours development’.21 Perhaps this is due to the core belief of our economic system that unlimited growth is possible and is unhindered by nature.22 Or perhaps it is simply a result of poor guidance and clarity of objects; it must be difficult appropriately to weigh factors when the term ‘ecological integrity’, found in principle (d), is not defined in the Act. In any case, it is clear the Act and its objects create a polycentric framework built on balance that lacks transparency but provides that environmental factors may not be placed above others.23 Earth-based decision-making would properly consider (in the context of a sustainable future) the wellbeing of the environment – or non-human members of the Earth community – and by doing so acknowledge the intrinsic rights of

nature to exist and flourish and thus always proportionally factor in environmental risk.

Section 74A: The split referral What does the Minister actually have to consider when looking at s74A? This question is not answered by the Act, which simply states that the Minister may decide not to accept a referral if it is a component of a larger action. To reach an understanding, we must look to the explanatory material, consisting of departmental manuals and policy statements. Although the government refers to them as ‘guidance and not legal advice’ they are the only material to shed light on the decision-making process. They provide the key question the Minister is to consider when deciding whether to accept or reject a split referral – whether the splitting of the project reduces the ability to achieve the objects of the Act.24 They refer to what approach would be ‘more consistent’ with or ‘promote’ the objects of the Act and ask if it is ‘preferable’ to assess and approve the larger action as a whole. This language imposes a vague obligation on the Minister which is essentially impossible to define and measure in practice. As mentioned, it is unclear how objects are to be applied or interpreted as achieved and thus it is difficult to determine whether a split referral reduces the ability to achieve objects. ESD must be taken into account, but to what degree is discretionary, leaving outcomes effectively unconstrained.25 The explanation states ‘all the relevant impacts’ should be ‘adequately assessed’ if allowing the split referrals and the Minister may reject a split referral to best achieve ‘proper consideration’ of environmental impacts. There is no elaboration on what is “adequate”, “proper”, or what exact impacts are relevant. Ultimately, when applying s74A there is no language binding a decisionmaker to reject a referral, even in appropriate circumstances, instead stating it ‘may be preferable’.26

Cumulative impacts Reading the policy guidance as a whole leads to a focus on whether all impacts can be properly assessed if the referral is split. I argue that without proper consideration of cumulative impacts under the EPBC Act, this question is relatively moot. Logically, there cannot be proper consideration of cumulative impacts of a whole project if components of the project are reviewed independently in split referrals. If potential impacts are denied consideration this approach undermines Earth jurisprudence theory and does not place the integrity of nature at the fore; instead it prioritises human-centred economic concerns. While a full exploration of the important issue of cumulative impacts is outside the scope of this article, I suggest, at least in regard to the implementation of s74A, that they are not adequately considered under

the EPBC Act. Historically, the Federal Court has asserted that cumulative impacts need not be considered when assessing actions because no consequences of other actions, present or anticipated, are to be considered.27 However, in the Rocky Hill case, the rejection of an application for a new coal mine in 2019 took into consideration noise, air quality, visual, heritage and climate change impacts cumulatively.28 The mine was rejected for its ‘significant and unacceptable planning, visual and social impacts’, adding the projects greenhouse gas emissions were a further reason for rejection.29 Preston CJ concluded that the economic impacts were outweighed by the cumulative environment impacts, providing a catalytic decision for environmental jurisprudence.30 The decision was the first in Australia to cite greenhouse gas emissions and climate change as part of reasoning to reject a mine, and has already caused two later coal mine applications to be rejected under similar reasoning in NSW.31 While the persuasiveness of the decision is limited, due to its state jurisdiction, it encompasses encouraging potential to change the future of cumulative impact consideration in Australian decision making. By defining cumulative impacts and incorporating the definition into jurisprudence this reasoning challenges the very nature of split referrals. It seems that cumulative impacts will always be ‘overlooked’ in assessing split referrals; therefore there can never be proper assessment of all relevant impacts. The definition of a cumulative impact refers to impacts caused from interactions with other foreseeable activities,32 which would include future planned stages of a project that is split into separate components at the referral stage. Applying this rationale to the policy, MNES can only ever be properly assessed through consideration of the whole project to take into account cumulative impacts, and it will almost always be preferable to assess and approve the larger action as a whole unless parts of the project produce no impacts whatsoever.

Olympic Dam Resource Development Project In 2019, BHP submitted three related referrals for a Tailings Storage Facility (TSF), an Evaporation Pond (EP) and the Olympic Dam mining development generally. Its project is one of two s74A decisions published with statements of reasons in the history of the Act; the Minister used his discretion not to reject the split referral, deeming the two former actions as not controlled.33 This project is a clear example of misuse of the split referral system by referring parties – by splitting a referral, a proponent is not contravening law, but may be attempting to circumvent comprehensive environmental assessment by diminishing the scale of the project or excluding features. In making the s74A decision, regard was given to the proponent’s ‘efforts to

publicise their proposals’ and to account for all relevant impacts in the referrals.34 The delegate concluded that the objects of the Act would not be frustrated and environmental assessment would not be diminished, nor would any assessment – if the referral was for the whole development – be avoided.35 212 public comments were received for the TSF and EP referrals, all opposing the actions. Submissions argued that the referrals should be controlled actions and should not be approved by relying on ‘non-independent’ information provided by the proponent. Furthermore, it was strongly argued that the Olympic Dam development ‘should be assessed in its entirety’, with a comprehensive assessment of project impacts subject to public consultation including cumulative impacts, rather than separating the TSF and EP projects.36 This is consistent with a recommendation by the Australian Government in 2011 to regulate ‘the entire Olympic Dam operation (existing and expanded)’ under a single Act approval.37 This 2011 decision also stated EPs are not to be constructed and are to be ‘phased out as soon as practicable’ to reduce impacts on Listed Species of birds.38 The 2019 decision appears contrary to the 2011 decision, as not only has the development of a new EP been approved, but it does not require assessment. It is certainly arguable that the approval of a new EP and TSF without assessment – whereby a rejection of the split referral would eventuate in their assessment as a whole project – does not frustrate the objects of the Act. Given the ‘extreme risk’ category the TSF falls into (due to the nature of a potential catastrophic failure)39 and the previous government recommendation to halt EPs due to environment concerns, it seems incongruous to not now choose to have these developments be included in the accredited assessment. This appears to do the opposite of promoting protection of the environment and does not appear to be in the interests of conserving biodiversity due to the potential impacts on migratory and threatened species. Long-term risk of impacts – a key consideration in ESD principles (a) and (d) – such as those of the TSF (radioactive waste is stored ‘effectively forever’),40 seem not to have been balanced appropriately against short-term economic benefit. Furthermore, the decision is not reconcilable with a cumulative impact approach, as they cannot be properly assessed without the rejection of the three referrals and the request for the referral of the whole development.

EPBC Act Reviews and possible reform The issues with s74A, ESD and decisionmaking under the Act are not new, having been the subject of considerable criticism in the 2008/2009 EPBC Act Review process. While some recommendations of the review sought to address the Act’s deficiencies, the

government did not act upon them, showing that any significant reform was not seriously considered. The 2020/2021 EPBC Act Review criticised considerable discretion available in decision-making processes and found ESD factors are not given sufficient weight or prominence, particularly when approving developments.41 It found that there is no clear link between approval decision and the objects of the Act or the achievement of environmental outcomes, and this is something highlighted by the Olympic Dam decision. The Review does not discuss the introduction of ecocentric principles, nor a suggestion to shift the balance of decisionmaking away from economic focus. Findings from the Australian National Audit Office in 2020 further highlight the need for a shift in focus. The independent audit concluded that the administration of referrals, assessments and approvals under the EPBC is ineffective and inefficient, and regulatory standards are not proportional to environmental risk.42 Furthermore, the report noted the reduced ability to achieve intended environmental outcomes due to inconsistency of procedural guidance and inadequacy of decisionmaking under the Act.43 The split referral system is a prime example of ineffective regulation. It exists plainly to benefit developers to structure projects in a manner more financially or practically suitable44 and is not appropriately implemented. While the Review did not deal with s74A directly, it recommended instead that standards be applied by decision-makers in most cases.45 These would intend to set strong, measurable and legally enforceable standards which place clear outcomes and limits for decisionmakers. This is because, as the Review states, the Commonwealth has a patchy history of demonstrating that it makes and enforces decisions according to the law, and in a way that achieves the objects of the Act. Patchy is one way to put it, as it was found 79% of approvals contained clerical or administrative errors or did not comply with procedural guidance.46 This has all led the Government to introduce the EPBC Amendment (Standards and Assurance) Bill 2021 which is awaiting its second reading in Parliament. However, the proposed laws have already received heavy criticism for being piecemeal legislation that does not come close to implementing what was recommended as part of the Standards reform package in the Review.

Conclusion There is a growing body of literature arguing that long-term ecological sustainability continues to be an afterthought with the prioritisation of short-term social and economic benefit in environmental decisionmaking.47 This is true not only in Australia, but internationally, where it has been argued it is impossible to protect the environment while pursuing ‘endless economic growth’.48 The balance of the s74A discretion appears to fit within this evaluation, having developed

52 | BRIEF AUGUST 2021

toward an under-utilisation of the power to reject split referrals. This suggests that environmental concerns are not being sufficiently considered and ESD factors are not being appropriately balanced in decisionmaking processes. It appears economic considerations are prevailing, necessitating urgent reform to the Act to regain control of the referral process in line with its role as Australia’s key piece of environmental legislation. In the recent Review, Professor Graeme Samuel notes that industry stakeholders raise concerns about imposing limits on discretion when approving the environmental impacts of developments, and at the other end of the spectrum, he notes environmental groups advocate for uncompromising rules that prevent any impact at all to protected matters. This is why an earth jurisprudence approach is advocated. It sits more in the middle of this spectrum. It is an approach where discretion is limited but not taken away, and impacts may still be permitted as long as they are considered properly and cumulatively. The National Environmental Standards have the potential to limit decision-making in this way if they are appropriately implemented by the Government, but whether this happens remains to be seen. It is hoped enough advocacy and support for these issues of national interest can deliver better outcomes for the environment while meeting Australia’s future development needs sustainably.

End notes 1 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 523 (‘EPBC Act’). 2 EPBC Act (n 1) s 67. 3 Australian Government, Department of Sustainability, Environment, Water, Population and Communities, Policy Statement: Staged Developments-Split referrals: Section 74A of the EPBC Act (2013) 1 (‘Policy Statement’). 4 Michelle Maloney, ‘Earth Jurisprudence and Sustainable Consumption’ (2011) 14 Southern Cross University Law Review 119, 120-121. 5 Maloney (n 5) 121; Millennium Ecosystem Assessment, Ecosystems and Human Well-Being: Synthesis (Island Press, 2005) 1. 6 Anthony Waldron et al, ‘Reductions in Global Biodiversity Loss Predicted from Conservation Spending’ (2017) 551 Nature 364-367. 7 G Samuel, Independent Review of the EPBC Act – Interim Report (Department of Agriculture, Water and the Environment, Canberra, June 2020) CC BY 4.0, 19. 8 Peter D Burdon, ‘A Theory of Earth Jurisprudence’ (2012) 37 Australian Journal of Legal Philosophy 28, 29; Thomas Berry, The Great Work: Our Way Into The Future (Bell Tower, 1999). 9 Cormac Cullinan, Wild Law: A Manifesto for Earth Justice (Green Books, 2003) 34. 10 Ben Mylius, ‘Towards the Unthinkable: Earth Jurisprudence and an Ecocentric Episteme’ (2013) 38 Australian Journal of Legal Philosophy 102, 106; Klaus Bosselmann, When Two Worlds Collide: Society and Ecology (RSVP Publishing, 1995) 1-8. 11 Burdon (n 8) 50; Eric T Freyfogle, Bounded People, Bounded Lands: Envisioning a New Land Ethic (Island Press, 1998) 108. 12 Burdon (n 8) 50. 13 Burdon (n 8) 30-31. 14 Australian National Audit Office, ‘Referrals, Assessments and Approvals of Controlled Actions under the Environment Protection and Biodiversity Conservation Act 1999’ (2020) Auditor-General Report No. 47 2019-2020, 6. 15 Samuel (n 7) 20.

16 Commonwealth of Australia, Ecologically Sustainable Development Steering Committee, National Strategy for Ecologically Sustainable Development (1992) 2. 17 Australian Government, Department of the Environment, Criteria for Determining ESD Relevance (2003) 1. 18 Justine Bell-James and Craig Forrest, ‘Ecologically Sustainable Development and the Great Barrier Reef – A Delicate Balance of Interests’ (2019) 36 Environmental and Planning Law Journal 97, 100. 19 Bates, GM, An expert paper on ESD, prepared by Dr Gerry Bates for the Commissioner for Sustainability and the Environment (2015) 12. 20 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113. 21 Andrew Lothian, ‘ESD in State Government Decisionmaking’ in Clive Hamilton and David Throsby (eds), The ESD Process: Evaluating a Policy Experiment (The Academy of the Social Sciences in Australia, 1997) 53, 54. 22 Maloney (n 4) 124; Douglas A Kysar, ‘Law, Environment, and Vision’ (2003) 97:2 Northwestern University Law Review 675, 676-680. 23 Guy J Dwyer and Mark P Taylor, ‘Moving from Consideration to Application: The Uptake of Principles of Ecologically Sustainable Development in Environmental Decision-making in New South Wales’ (2013) 30 Environmental and Planning Law Journal 185, 199. 24 Policy Statement (n 3) 1. 25 Andrew Macintosh, ‘The Impact of ESD on Australia’s Environmental Institutions’ (2015) 22 Australasian Journal of Environmental Management 33, 41. 26 Policy Statement (n 3) 5. 27 Tarkine National Coalition Inc v Minister for the Environment [2015] FCAFC 89 [43]. 28 Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 (‘Rocky Hill case’). 29 Rocky Hill case (n 28) [556]. 30 Rocky Hill case (n 28) [688]. 31 Environmental Law Australia, ‘Gloucester Resources (“Rocky Hill”) case’ (2019) http:// envlaw.com.au/gloucester-resourcescase/#:~:text=Background,%E2%80%9CRocky%20 Hill%20Mine%20Project%E2%80%9C. 32 Rocky Hill case (n 28) [273]. 33 Gregory Manning, ‘Statement of Reasons for a Decision on Controlled Action Under the Environment Protection and Biodiversity Conservation Act 1999’ EPBC Number 2019/8526 [30] (‘EP Statement of Reasons’); Gregory Manning, ‘Statement of Reasons for a Decision on Controlled Action Under the Environment Protection and Biodiversity Conservation Act 1999’ EPBC Number 2019/8465 [35] (‘TSF Statement of Reasons’). 34 ‘EP Statement of Reasons’ (n 33) [28]. 35 ‘EP Statement of Reasons’ (n 33) [29]. 36 ‘EP Statement of Reasons’ (n 33) [8]. 37 Conservation Council SA, Australian Conservation Foundation and Friends of the Earth Australia, ‘Public Submission to BHP’s EPBC Act Referral 2019/8570 “Olympic Dam Resource Development Strategy” copper-uranium mine expansion’ (2019) 2. 38 Tony Burke, ‘Approval of the Expansion of the Olympic Dam copper, uranium, gold and silver mine, processing plant and associated infrastructure’ EPBC Number 2005/2270 [19], [21]. 39 BHP, ‘Tailings Facilities Disclosure: Response to the Church of England Pensions Board and the Council on Ethics Swedish National Pension Funds’ (2019) 11-12. 40 Conservation Council SA, Australian Conservation Foundation and Friends of the Earth Australia (n 37) 4; Burke (n 38) [32]. 41 Samuel (n 7) 20. 42 ‘Audit Report’ (n 14) 6. 43 ‘Audit Report’ (n 14) 10. 44 Policy Statement (n 3) 2. 45 Samuel (n 7) 4. 46 ‘Audit Report’ (n 14) 10. 47 Dwyer and Taylor (n 23) 195; Amanda J Carter and John D Pisaniello, ‘Moving from rhetoric to effective implementation for Australian governments’ sustainability policies’ (2012) 18:1 Journal of the AsiaPacific Centre For Environmental Accountability 25, 27; Bell-James and Forrest (n 19) 111. 48 Sam Adelman, ‘Tropical Forests and Climate Change: A Critique of Green Governmentality’ (2015) 11 International Journal of Law in Context 195, 196.

Reform of the Law of Ademption in Western Australia

By Dilani Peiris* and John Hockley**

(a) What is ademption? Ademption is defined as: “A taking away; revocation”.1 The definition attributes nuanced meanings of this word in Equity and in Succession Law. Equity - The implied revocation, in whole or part, of a gift made by will, by an act of the testator done after making the will. The doctrine by which equity presumes that if a testator leaves a legacy for a particular purpose and then makes a gift for the same purpose, the legacy is adeemed, even though the testator does not stand in loco parentis to the legatee:1 Succession - The common law doctrine that a specific gift will fail and the beneficiary will take nothing if the subject matter of the specific gift is absent from or ceases to exist as part of the deceased estate at the date of the testator’s death:

(b) Ademption arises: Ademption arises where the holder of a power of attorney or the administrator of an estate disposes of assets specifically bequeathed under the represented person’s will resulting in a failure of the gift made under the will.

(c) Application of Ademption (i) Re Viertel: In Re Viertel, the testatrix had devised her house to her attorneys by Will some years before she lost testamentary capacity and her affairs were administered by the Public Trustee. The attorneys who held an enduring power of attorney had no knowledge of this devise. They made enquiries of the Public Trustee who informed them that it was not at liberty to disclose the contents of the will. The attorneys decided to sell the residence. After the sale the proceeds of sale could be traced into a bank account. With some “hesitation” Thomas J held that there had been no ademption of the specific devise. He did so on the basis that the “rule” recognised by Stuart J in Jenkins v Jones (1866) L. R. 2 Eq 323 “is an historical exception to the consequences of ademption and that the present circumstances fall within that exception”. The result was that the devise of the property to the attorneys had not been adeemed and that the attorneys were entitled under the will to the proceeds of sale. (ii) Re Hartigan In Re Hartigan3 there was an application by the Public Trustee for directions and an opinion under section 58 of the Public Trustee Act 1941, on questions arising on administration of the estate of a lady of

mature years who was unable to look after her own affairs and lacked testamentary capacity. The Public Trustee wanted to sell the property and use the funds to provide for the welfare of Ms Hartigan. Parker J found the analysis of the position and reasoning of Thomas J, in Re Viertel, helpful and persuasive. The heart of that reasoning turns on the sale of the property by a person other than the testator at a time when the testator is incapable of selling the property or of altering an existing will to give effect to the testator’s intentions in the changed circumstances. If that is correct, it ought not to be a material distinction whether or not the person effecting the sale knew of the terms of the will. I am somewhat reassured in this view by another opinion under S 58 of the Public Trustee Act given in Re-Bearsby, SCt of WA (Wheeler J); Civ 1919 of 1997: 29 August 1997 where her Honour gave the opinion that the proposed sale of the property would not adeem its devise in a will in circumstances where the testatrix lacked the capacity both to sell the property herself and to change the will. It will be apparent that there is a measure of uncertainty as to the relevant state of the law so that I approach the task of decision with some hesitancy. This is especially so as I have not had the advantage of adversarial argument on the point. Nevertheless, this very uncertainty is the reason for the Public Trustee to seek the opinion of the Court. Uncertainty persisted whether Re Viertel was correct in law even though the conclusion may have been correct on grounds of social policy. (iii) RL v NSW Guardian and Trustee: In RL v NSW Guardian and Trustee, a decision of the NSW Court of Appeal, the leading judgment was given by Campbell JA whose orders were agreed to by Young AJA and Sackville JA. In a very comprehensive judgment, Campbell JA gave a detailed, erudite review of the law of Ademption and the law of Lunacy and its application in New South Wales. In the course of his judgment Campbell JA emphatically rejecting Re Viertel and its progeny.5 4

Campbell JA stated at [151] that in his view Viertel had come to an incorrect view of the law when viewed in the context of the history of the law on ademption. At [175] Campbell J cited Johnston v MacMahon [2002] NSWSC 97 a decision of Young CJ in Eq (as his Honour then was) on a pleading point. In the course of it his Honour said: 13. Roper on Legacies,4 ed, William Benning the & Co-, London, 1847) at pp 329 and following, sets out the general rule with respect to the ademption of specific gifts. The learned author says: The word “ademption” when applied to specific legacies of stock or money… This must be considered as synonymous with the word “extinction”. For it should

* B Ec (Hons) (UWA), LLB (UWA); Student in Succession Law at UWA in 2013. ** Barrister, Francis Burt Chambers, 77 St Georges Terrace, Perth, WA, 6000; Lecturer in Succession Law at UWA. This article is based on an Assignment given to Succession Law Students in the JD Course at UWA in February 2020.

be observed, that if stock, securities or money, so bequeathed, be sold or disposed of, there is a complete extinction of the subjects, and nothing remains to which the words of the will can apply (a): for if the proceeds from such a sale or disposition were to be substituted and permitted to pass, the effect would be to convert a specific into a general legacy.” At p 331: ‘this view of ademption means that the testator’s intention is irrelevant. The only thing to be ascertained is whether the testator possessed the property in the specific gift at the time of his death. If he did not, the legacy is deemed by annihilation of the subject.’ Roper J’s approach has been followed ever since.6 Campbell JA stated at [173]: The conclusion in Viertel, at 116, was “The result should be no different than if a stranger had converted or misapplied an asset in circumstances where the proceeds of the asset can be traced”. I do not agree. Rather the only circumstances on which it is legitimate for the proceeds of sale of a specifically gifted item of property to pass to the intended donee of that property, other than where the sale has been effected without authority or in some other fashion wrongfully, is where the specifically given asset has not been changed in substance. That is the law stated in the passage from Re Slater at 672 that I have quoted at [132] above, as stated in the High Court in Harrison v Jackson, Fairweather v Fairweather and Pohlner v Pfeiffer ([130] and [135] above) and as accepted in this Court in Perpetual Trustees Co-v Robbins ([134] above). At [174] Campbell JA said when commenting on the decision in Re Hartigan: ex parte the Public Trustee (WASC, Parker J, 9 December 1997, unreported): … In my view this decision is mistaken, for the same reason that Re Viertel is mistaken. It is because the sale of the house by a person with authority to do so would have the effect of adeeming the specific devise for which legislation like s83 was enacted (s83 of the NSW Trustee and Guardianship Act 2009 that was cited in his judgment at [48]). Campbell JA stated at [149], that there was no question that Re Viertel should be followed in NSW, as there was a statutory provision that covers that type of situation with which Re Viertel was concerned. (see: s22 of the Powers of Attorney Act (2003) (NSW).

(d) Statutory Exemptions to Ademption The above cases demonstrate the uncertainties in the common law doctrine of ademption. This has led to a call for statutory exceptions to ademption by various Australian States. The possibility of ademption raises the question whether there should be an exception to permit the holder of the power of attorney or the

administrator to obtain access to the will to avoid ademption occurring. The degree of access to the will is also a matter of contention.7

in one or more named beneficiaries gaining an unjust and disproportionate advantage, or suffering an unjust and disproportionate disadvantage of a kind not contemplated by the will.

(i) In the United Kingdom

Although it has been recognised that the current position can lead to harsh results it remains up to Parliament to provide exceptions to the rule.1

(v) In Victoria

(ii) In Queensland

In Queensland, the courts have held that the ademption rule still applies. Some decisions have not followed Re Viertel but preferred RL v NSW Guardian and Trustee.1 A beneficiary may apply to the Supreme Court for compensation out of the estate where they have suffered loss as a result of the act of a power of attorney.1 There is no requirement that the principal lacked capacity at the time of the sale or other dealing by the holder of the power of attorney.1

(iii) In South Australia

If the donor lacked capacity, then a beneficiary under a will can apply to the Supreme Court if their share of the will has been affected by the action of the holder of the power of attorney. The Supreme Court may make orders as it thinks just ‘to ensure that no beneficiary gains a disproportionate advantage or suffers a disproportionate disadvantage, of a kind not contemplated in the will’ The recent report by the South Australian Law Reform Institute made many recommendations to reform the law on Powers of Attorney including, for clarity, a new Powers of Attorney Act, to cover the role and operation of powers of attorney, or in the alternative, that the Powers of Attorney and Agency Act 1984 (SA) be amended and updated. The Report contained no recommendation on ademption as that topic was beyond the remit of the Report.

(iv) In New South Wales

In New South Wales sections 22 and 23 of the Powers of Attorney Act 2003 (NSW) alter the pre-existing law.

Under section 22, a beneficiary under a will of a person who executed an enduring power of attorney has the same interest in surplus money or other property arising from the sale or other dealing with the property by the attorney, as if the sale or other dealing had not taken place. There is no requirement that the Will-maker lacked capacity at the time of the dealing and there is no obligation on the attorney to keep a separate account of the proceeds.

In section 23 the Supreme Court has the power to vary the operation of the provision if it considers it would result

54 | BRIEF AUGUST 2021

The call for Law Reform made by Justice Hargrave in Simpson v Cunning (2011) 4 Australian Succession and Trusts Law Reports 584, was taken up in a recommendation by the Law Reform Commission of Victoria. This recommendation was acted upon with the result that section 83A of the Powers of Attorney Act [2014] Vic, has the same effect as section 22 of the Powers of Attorney Act [2003] NSW, in that a beneficiary of a principal has ‘the same interest in any money or other property arising from any sale under the powers given to an attorney that the beneficiary would have had in the property the subject of the sale if no sale had been made’. In a way similar to section 23 of the Powers of Attorney Act (NSW) (“the PAA”). under section 83B of the PAA Vic, this exception to ademption applies whether or not the principal of the power of attorney has testamentary capacity.

In Victoria, where an administrator was appointed by VCAT sold a represented person’s asset any beneficiary under their will had the same interest in any money or other property gained as result of the sale as if the property had not been sold. (vi) In Western Australia

In Western Australia the issues in regard to ademption and access to Powers of Attorney were well-known. The question of some common ground between the States, even if not uniformity, arose at a time when section 14 of the Acts Amendment (Consent to Medical Treatment) Act 2008 (WA) (Amendment Act) required a statutory review of the Guardianship and Administration Act 1990 (WA) (the Act) and the relevant sections of the Criminal Code as soon as practicable after the expiration of three years from the commencement of the Amendment Act. This resulted in the Elder and Succession Law Committee of the Law Society of Western Australia producing a Briefing Paper: Ademption.8 The Briefing Paper sets out the Re Viertel progeny in Western Australia, Re Hartigan, a decision of Parker J in 1997 in detail. There is no mention that the persuasive decision by the NSW Court of Appeal in RL v NSW Guardian and Trustee cast doubt on the decisions in: Re Viertel and Re Hartigan as set out above. There is uncertainty whether Re Hartigan can be relied upon to be

followed in Western Australia after the decision of Campbell JA in RL v NSW Guardian and Trustee. The writers advocate the need for an addition to the Administration Act 1903 (WA) or another Act (in NSW and in Victoria reference is made to their Powers of Attorney Act), to introduce statutory provisions similar to sections 22 and 23 of the NSW Powers of Attorney Act 2003 or the similar legislation introduced in Victoria, in section 83A of the Powers of Attorney Act (2014) (Vic), following the recommendations of The Law Reform Commission of Victoria that gave an exemption to an attorney in the same terms as an administrator under section 53 of the Guardianship and Administration Act 1986 (Vic).9 This remedied the unfairness referred to in Simpson v Cunning (2011) 4 Australian Succession and Trusts Law Reports 584. In Western Australia there is no legislation giving a partial exemption to administrators in regard to ademption as there was in Victoria. It is for this reason that the broader provisions of the NSW legislation are preferred. Legislation is needed to overcome the uncertainties raised in RL v NSW Guardian and Trustee as to the continuing validity of any “exception to ademption” arising from the decision in Re Hartigan.10 Sections 22 and 23 of the Powers of Attorney Act (2003) NSW state: 22 Effect of ademptions of testamentary gifts by attorney under enduring power of attorney (cf 1983 No 179, s 48) (1) Any person who is named as a beneficiary (a “named beneficiary”) under the will of a deceased principal who executed an enduring power of attorney has the same interest in any surplus money or other property arising from any sale, mortgage, charge or disposition of any property or other dealing with property by the attorney under the power of attorney as the named beneficiary would have had in the property the subject of the sale, mortgage, charge, disposition or dealing, if no sale, mortgage, charge, disposition or dealing had been made. (2) The surplus money or other property arising as referred to in subsection (1) is taken to be of the same nature as the property sold, mortgaged, charged, disposed of or dealt with. (3) Except as provided by subsection (4), money received for equality of partition and exchange, and all fines, premiums and sums of money received on the grant or renewal of a lease where the property the subject of the partition, exchange, or lease was real estate of a deceased principal are to be considered as real estate. (4) Fines, premiums and sums of money received on the grant or renewal of leases of property of which the deceased principal was tenant for life are to be considered as the personal estate of the deceased principal.

(5) This section has effect subject to any order of the Supreme Court made under section 23. (6) A person is named as a beneficiary under a will for the purposes of this section if: (a) the person is referred to by name in the will as being a beneficiary, or (b) the person answers a description of a beneficiary or belongs to a class of persons specified as beneficiaries, under the will. (7) This section does not apply to any person to whom section 83 of the NSW Trustee and Guardian Act 2009 applies. 23 Supreme Court may make orders confirming or varying operation of section 22 (1) On the application of a named beneficiary referred to in section 22(1) or such other person as the Supreme Court considers has a proper interest in the matter, the Supreme Court may: (a) make such orders and direct such conveyances, deeds and things to be executed and done as it thinks fit in order to give effect to section 22, or (b) if it considers that the operation of section 22(1) and (2) would result in one or more named beneficiaries gaining an unjust and disproportionate advantage, or suffering an unjust and disproportionate disadvantage, of the kind not contemplated by the will of the deceased principal - make such other orders as the Court thinks fit to ensure that no named

beneficiary gains such an advantage or suffers such a disadvantage. (2) An order made by the Supreme Court under subsection (1)(b): (a) may provide that it has effect as if it had been made by a codicil to the will of the deceased principal executed immediately before his or her death, and (b) has effect despite anything to the contrary in section 22. (3) An application under subsection (1) must be made within 6 months from the date of the grant or resealing in this State of probate of the will or letters of administration unless the Supreme Court, after hearing such of the persons affected as the Supreme Court thinks necessary, extends the time for making the application. (4) An extension of time granted under subsection (3) may be granted: (a) on such conditions as the Supreme Court thinks fit, and (b) whether or not the time for making an application under this section has expired.

Conclusions The law on ademption in WA is in need of reform. The current law leads to uncertainty and errors in the distribution of estates. Victoria has recently changed its law on ademption to conform with the law in New South Wales. In this article an identical change to that made in Victoria is advocated as the best path for Western Australia. This harmonisation of the law in the three

Australian States joining together in a uniform law for the legal profession could be the start of a change where the law in WA is amended more often to keep pace with the changes in New South Wales and Victoria. The change advocated in this article is long overdue and could be brought in alone or not later than with the proposed reform of the Administration Act 1903 (WA). In the interim, it is hoped that this article gives practitioners some guidance in navigating the increasingly uncertain waters of the distribution of estates that include ademption.

End notes 1 LexisNexis Concise Australian Legal Dictionary, Fifth edition, 2015 at 17 2 [1996] QSC 66; [1997] 1 Qd R 110. 3 Unreported, Supreme Court of Western Australia, Parker J, (9 December 1997. 4 [2012] NSWCA 39. 5 (see “Law of Succession”, Dal Pont and Mackie, 2nd ed., 2017, LexisNexis/Butterworths at [7.36]). 6 (see e.g. In re-Rudge [1949] NZ LR 752, 761). 7 In Simpson v Cunning, Justice Hargrave recognised an exception to the ademption rule where a person was acting under an Enduring Power of Attorney and the property needed to be sold to fund accommodation bonds and other necessities and comforts for an ageing population. 8 See: The Law Society of Western Australia Briefing Paper: Ademption, August 2020. 9 See Explanatory Memorandum, Administration and Probate and other Acts amendment (Succession and related matters) Bill 2013 xxiv [4.73]-[4.93] (“VLRC Succession Laws Report”); see also Robertson v Broadbent (1883) 8 App Cas 812); (see also: In re Foord [2019] VSC 44, McMillan J). 10 In a manner similar to that adopted in Victoria, sections 22 and 23 of the NSW ACT should be incorporated into the Administration Act 1903 (WA), as sections 149 and 150.

Finance tailored for legal professionals We are Australia’s only specialist broker for lawyers. With access to all major lenders and private banks, we’ll secure the best home loan tailored for you.

CHAT TO US TODAY (02) 9030 0420 enquiries@legalhomeloans.com.au www.legalhomeloans.com.au

WA Case Notes Improper Conduct And The Limitation Act: Lowe Pty Ltd V Belgravia Nominees Pty Ltd [2020] WASCA 180 INTRODUCTION The decision of Quinlan CJ, Mitchell and Beech JJA in Lowe Pty Ltd v Belgravia Nominees Pty Ltd1 provides important guidance on the meaning of improper conduct and when delays in commencing proceedings will be “attributable” to improper conduct under s 38 of the Limitation Act 2005 (Limitation Act). FACTS Colin Heath, Bill Godecke and Rob Godecke were long time property investors and involved with Belgravia Nominees Pty Ltd (Belgravia). Mr Heath provided services to Belgravia as a project manager and, at times, real estate agent, through Lowe Pty Ltd (Lowe), which he controlled. The relevant directors of Belgravia were Bill and Bob Godecke, Mr Heath, and later Bob’s wife Delyse and Bob’s children Karin and Tony Godecke. Disputes arose between Belgravia, Mr Heath and Lowe, amongst others, in relation to various payments made to Lowe. The claims below were wide ranging, but the appeal related to payments made by Belgravia to Lowe on 4 April 2006 and 26 March 2007 (the Payments). The primary judge upheld Belgravia’s claims relating to the Payments for restitution on a mistaken belief of entitlement under an agreement involving Lowe and Belgravia (the 1999 Agreement)2 and for breach of fiduciary duties by Mr Heath, which Lowe jointly participated in, by causing or directing the Payments be made. Given proceedings commenced in October 2013, those claims were prima facie statute barred. However, the primary judge extended the limitation period under s 38(2) of the Limitation Act. The appeal concerned the findings supporting this extension. Section 38(2) involves an application by a plaintiff to commence an action with an expired limitation period. It provides: (2) On an application a court may extend the time in which the action can be commenced up to 3 years from when the action ought reasonably to have been commenced if the court is satisfied that the failure to commence the action was attributable to fraudulent or other improper conduct of the defendant or a person for whom the defendant is vicariously liable. IMPROPER CONDUCT DOES NOT REQUIRE MORAL TURPITUDE Lowe appealed the primary judge’s findings on improper conduct and submitted that improper conduct must include an element of moral turpitude, requiring more than a mere breach of contract, duty of care or fiduciary duty. It relied on Master Gething’s decision in Shire of Toodyay v Merrick to that effect.3 That decision was based in part on the finding that the “fraudulent”, which immediately precedes “other improper conduct” limited its meaning. It was also based on reasoning that if it encompassed every breach of contract, duty of care or fiduciary duty, then the section would be too broad. Master Gething also drew an analogy between the equitable doctrine of concealed fraud and conduct which would be “otherwise improper”. It was also based on the decision of the High Court in R v Byrnes,4 which concerned the meaning of “improper” in the context of the Companies (South Australia) Code. This court found that improper conduct in this context does not require an element of moral

56 | BRIEF AUGUST 2021

turpitude. Applying orthodox principles of statutory construction,5 the court noted an applicant under s 38(2) must make out two elements: 1. The defendant, or someone for whom they are vicariously liable, engaged in fraudulent or other improper conduct; and 2. The plaintiff’s failure to commence the action was attributable to that fraudulent or other improper conduct. A court then has discretion to grant an extension to commence an action up to three years from when it ought reasonably to have been commenced. That discretionary exercise requires consideration of matters such as the prospect of a fair trial and prejudice to the defendant.6 The “fraud or other improper conduct” need not be the conduct giving rise to the claim.7 It may instead dishonestly conceal facts or evidence giving rise to a claim. Courts must exercise discretionary powers judicially, not arbitrarily or capriciously, and in accordance with general principle, which the court noted favours the most liberal construction.8 Accordingly, the court found that improper conduct in s 38 is not limited to conscious wrongdoing, conduct akin to fraud or conduct with an element of moral turpitude.9 Nor does it require a breach of contract, duty of care or fiduciary duty. It carries its ordinary meaning, being conduct not in accordance with propriety, or what is proper in the circumstances. It is conduct by a prospective defendant which has a purpose or likely effect of preventing, impeding or delaying the commencement of an action by the prospective plaintiff.10 Conduct should be assessed in the context of that person as a prospective defendant to a prospective plaintiff’s action.11 This is an evaluative judgment considering the circumstances, analogous to assessing unconscionable conduct.12 Given this finding, the concern raised in Shire of Toodyay v Merrick falls away. It will not be every case of breach of contract, duty of care or fiduciary duty that will enable recourse to this section. It will only be where the conduct has the intention or likely effect of causing the action to not be commenced in time. However, this decision does have the unfortunate effect of causing a rift between the meaning of improper in the context of the Limitation Act and how it was understood under the former State Companies Codes. But this is not uncommon in the law, LOWE’S FAILURE TO PROVIDE INVOICES WAS IMPROPER The Court held the correctness standard of review (whether the fact exists objectively) applies on appeal of a finding of improper conduct, not the principles applied in appealing a discretionary judgment.13 After all, it was not the exercise of the discretion which was being appealed. The Court found the primary judge was correct to conclude there was improper conduct in the circumstances. Specifically, it was improper conduct for Lowe to fail to inform Belgravia the Payments were for additional project management and selling fees at the time the Payments were made. The Court also agreed it was improper for Lowe to fail to provide anyone at Belgravia, other than the defaulting fiduciary, Mr Heath, the invoices for which the payments were made when they were created.14 Instead, Lowe retained the invoices while aware Mr Heath had not informed or sought approval from any other officer of Belgravia of the Payments. Lowe was the custodian of Belgravia’s financial records and bank statements were sent to and

retained by Lowe. Through its processes, it participated in Mr Heath’s breach of fiduciary duty in a manner which was likely to prevent Belgravia from ever becoming aware of the fact of the breach.15 While there was a history of trust and informality in the party’s business dealings, these Payments were made in an extraordinary level of informality even considering that background. Lowe unfairly deprived Belgravia of the opportunity of becoming aware of the payments and the asserted basis for them, and unfairly deprived Belgravia of the opportunity to commence proceedings to recover the payments within the limitation period. It was both knowing participation in a breach of fiduciary duty and improper conduct.16 “FOBBING OFF” CAN BE IMPROPER EVEN WITHOUT AN INTENT TO DECEIVE The primary judge found improper conduct arising from the failure by Lowe’s chief financial officer, Mr Quinlivan, to provide invoices for the March 2007 payments when requested by Mr Tony Godecke. One aspect of this was that Mr Quinlivan had conveyed the false impression he, Mr Heath and Bill and Bob Godecke had agreed in 2008 to the outstanding balances between Belgravia and Lowe. Mr Quinlivan accepted, in effect, he said this to dissuade Mr Godecke from pursuing his request; he was “fobbing him off”. Mr Quinlivan also did not respond to another email from Mr Godecke seeking details of the 2007 payment. Lowe was vicariously liable for Mr Quinlivan’s conduct given he was an officer of Lowe and the request was made in relation to records retained by Lowe. Mr Quinlivan’s conduct came from a desire to avoid the effort of obtaining the information, rather than actively desiring to conceal wrongdoing. It remained improper. Belgravia was entitled to make the requests and should have been given the information and records when the payments were made. The Court agreed that Mr Quinlivan’s “fobbing off” was improper conduct given the background of the other above described improper conduct of Lowe. It unfairly deprived Belgravia of information it required to commence proceedings to recover the Payments, and to appreciate the looming expiry of the limitation period. NO IMPROPRIETY IN LOWE’S CHANGED LEGAL JUSTIFICATION OF THE PAYMENTS The primary judge found improper conduct arising from Mr Heath’s and Mr Quinlivan’s failure to inform Karin and Tony Godecke why Lowe was charging additional fees at the time or between 2012 and 2013. Yet the primary judge found Lowe had given a basis for the payments, being the 1999 Agreement. The failure the judge was referring to was Lowe not informing Belgravia of the basis for the charges on which it later relied at trial. The Court held this finding was erroneous. It was not improper conduct for Lowe to later rely on justifications which emerged only after proceedings were commenced, despite the fact it had earlier justified the payments in another way. Nor was it improper for Lowe to advance the actual reason it believed itself to be entitled to the payments at the time it was asked. That was particularly so given Karin and Tony Godecke had a copy of the 1999 Agreement on which Lowe relied and so could assess for themselves the merits of Lowe’s claims.

BELGRAVIA’S FAILURE TO COMMENCE PROCEEDINGS WAS ATTRIBUTABLE TO LOWE’S CONDUCT

of moral turpitude has been thoroughly rejected, widening the scope of matters which may constitute improper conduct.

The appellant submitted the trial judge erred in finding Belgravia’s failure to commence proceedings in time was “attributable” to Lowe’s conduct, based on two contentions.

Tom Camp is a Solicitor at Butcher, Paull & Calder and Council Member of the Law Society of Western Australia.

The first contention was that Belgravia knew, through its officers or agents, the Payments had been made before the expiry of the relevant limitation periods. The appellant relied on an accounting record including the amounts and dates of the April 2006 payments. The record was maintained by Lowe. Mr Sendziuk was employed by the accountants for Belgravia and this document was apparently available to him for preparation of the accounts. However, the court found this didn’t provide a basis for attributing knowledge of the payments to Belgravia. While it was available to Mr Sendziuk he apparently did not collect it. In any event the description was highly ambiguous and formed part of a large volume of material. The fact the Payments had been made and their nature was not readily discernible from the record. There was also no breakdown of the Payments in any profit and loss statements. While Mr Heath was an officer of Belgravia, the court found knowledge of a breach of fiduciary duty was not to be attributed through the knowledge of the defaulting fiduciary.17 Of the other Belgravia directors, Bill, Bob and Delyse Godecke were not shown to have known of the payments, while Tony and Karin Godecke only discovered in August 2013 that the Payments had been made. The Court found that Belgravia did not know of the Payments through its officers or agents before August 2013. The second contention was that Belgravia did not need to know of the basis on which Lowe claimed entitlement to the Payments in order to commence the action. The Court found this did not assist the appellant even if it were so because Belgravia needed to know of the Payments to commence proceedings. THE EXTENSION WAS APPROPRIATE The critical findings of the primary judge were that Belgravia did not know of the Payments before the expiry of the relevant limitation periods. Therefore, Belgravia was not in a position to make a decision to commence proceedings to recover the Payments. Belgravia’s lack of knowledge was attributable to the upheld improper conduct, so the delay in commencing proceedings was also attributable to the improper conduct. Indeed, once Belgravia had that knowledge, it promptly commenced proceedings. The errors identified by the court were not material to the primary judge’s ultimate decision. The remaining improper conduct was a substantial cause of Belgravia’s relevant lack of knowledge. The Court found that if Lowe had not engaged in improper conduct then Belgravia would have known before the expiry of the limitation period that the Payments had been made as payment of additional project management and selling fees. Belgravia would then have been in a position to commence proceedings.

R v Kinghorn (No 7) [2020] NSWSC 1483 Justice Adamson of the NSW Supreme Court recently published R v Kinghorn (No 7) [2020] NSWSC 1483, the latest instalment in a protracted pre-trial skirmish between federal prosecutors and RAMS Home Loans founder John Kinghorn. The prosecution, commenced in 2017, originally alleged that Kinghorn defrauded the Commonwealth, an offence carrying a maximum penalty of 10 years’ imprisonment. In 2019, this charge was discontinued, leaving two offences contrary to the “general dishonesty” provisions in s 135.1 of the Criminal Code (Cth). Broadly, Kinghorn is charged with dishonestly representing to the Australian Taxation Office (ATO) that he did not control two foreign companies, in the context of a multi-day examination by the ATO which he was compelled to attend in 2005. In 2020, the consequences of this compulsory examination have seen the prosecution scrutinised by the NSW Supreme Court, Court of Criminal Appeal, and even the High Court. In September, the latter heard and dismissed an application for special leave to appeal argued by Bret Walker SC, not by rejecting his submission that the case raised legal principles of “the highest public importance,” but on the grounds that it was premature for the Court to intervene at such an early stage: Kinghorn v DPP (Cth) [2020] HCATrans 144. While the maximum penalty for “general dishonesty” was increased to 10 years in 2018, the penalty applicable to these dated charges is only 5 years. The High Court tells us that the maximum penalty is only one yardstick, and sentencing guidance may also be drawn from comparable cases. Consider that of ACG Security founder Harry Korras. Charged in 2015 with an $8 million fraud conspiracy, in 2018 he pleaded guilty to an offence against s 135.1 involving $85,000, which he repaid in full shortly before his plea hearing. More than a year later, the County Court of Victoria sentenced him to a suspended sentence of imprisonment and a $10,000 fine: DPP (Cth) v Korras [2019] VCC 1681. Kinghorn, on the other hand, has pleaded not guilty. Like everyone else in the mortgage industry, he is to be presumed generally honest. The interlocutory disputes before Adamson J commenced when, in April 2018, Kinghorn issued subpoenas for the production of correspondence between the ATO, Australian Federal Police and Commonwealth Director of Public Prosecutions: R v Kinghorn [2019] NSWSC 553. The Commonwealth authorities sought to set aside the subpoenas on the grounds of client legal privilege, litigation privilege and public interest immunity. Kinghorn contended that it was “on the cards” that production of the correspondence would assist a defence application for a stay of proceedings, by establishing the circumstances in which compulsory examination material was disseminated.

This decision establishes that improper conduct in s 38(2) of the Limitation Act is conduct which is not in accordance with propriety or what is proper in the circumstances and the impropriety must relate to a purpose or tendency of the conduct to deprive a prospective plaintiff of a reasonable opportunity to commence an action or divert them from doing so. This is an evaluative judgment made in all the circumstances of the case.

In R v Kinghorn (No 4) [2019] NSWSC 1420, Adamson J ruled that the Crown’s conduct in opposing the accused’s application for a permanent stay was inconsistent with the maintenance of privilege. This finding was reversed by the Court of Criminal Appeal in DPP (Cth) v Kinghorn [2020] NSWCCA 48. However, the Court of Criminal Appeal noted that the ultimate outcome of Kinghorn’s foreshadowed stay application would depend on an undecided issue described as “the Leach question.” It was this question which returned to Adamson J for determination in Kinghorn (No 7).

Practitioners should note that the suggestion in Shire of Toodyay v Merrick that s 38(2) requires an element

The High Court has made it clear that statutory examination powers will not be construed as

SUMMARY

authorising an examination in relation to the commission of charged offences unless required by clear words of necessary intendment: X7 v Australian Crime Commission (2013) 248 CLR 92. The unlawful conduct of a compulsory examination or dissemination of compulsory examination material may lead to a prosecution being permanently stayed, even if the material is not adduced in evidence: Strickland v DPP (Cth) (2018) 266 CLR 325. Unlike other compulsory examination powers, which provide for ‘direct use immunity’ while raising questions about ‘derivative use,’ the tax legislation does not expressly prohibit direct use of compulsory examinations as evidence in a prosecution. However, in R v Leach [2018] QCA 131, the Queensland Court of Appeal held that a miscarriage of justice occurred because the prosecution possessed, and tendered at trial as evidence of consciousness of guilt, a recording of a compulsory examination conducted by the ATO in 2010. The “Leach question” is whether it follows, in the pre-trial context of the proceedings against Kinghorn, that the ATO should not have disseminated, and the CDPP should not have had access to, the content of Kinghorn’s compulsory examination in 2005. Adamson J held that the prosecution should not be in possession of, and could not tender in evidence, recordings of the examination. Her Honour’s judgment contains, at [56] – [103], a useful summary of the accumulating authorities in this area, the length of which (12 pages) provides some idea of the law’s confounding state. Ultimately, while Adamson J accepted that the tax legislation expressed a clear intent to abrogate the privilege against selfincrimination, her Honour read it down, limiting the direct use of examination material to prosecutions for the summary dishonesty offences in s 8K and s 8N of the Taxation Administration Act [128], [142]. The future of the indictable charges against Kinghorn remains uncertain in these circumstances. The unlawful disclosure of the examination material may have rendered Kinghorn “unprosecutable,” as was Strickland (a pseudonym). In the Court of Criminal Appeal, the Crown had conceded that an adverse answer to the “Leach question” would require Kinghorn’s prosecution to be temporarily stayed until a new team which had not had access to the examination material was appointed and the court moved to lift the stay. The Court of Criminal Appeal left open the possibility that the waiver of privilege issue might be re-litigated following the appointment of a new prosecution team [182]. The DPP must now determine whether it is in the public interest to return to the Court of Criminal Appeal, or continue an interlocutory process which has been fought hard for three years so far – longer than anyone could expect the almost octogenarian Kinghorn to spend in custody if convicted. Starting trial preparation afresh with a new team that has never seen the examination transcripts will be expensive, and risky. The prosecution concerns conduct which took place while today’s graduate lawyers were in primary school. If the decision is to press on, Kinghorn and his counsel appear ready to take the Executive back to the High Court as soon as there is a plausible case for special leave.

Scott Young - Solicitor

End notes 1 [2020] WASCA 180. 2 [2020] WASCA 180 [101], [105]. 3 [2016] WASC 29 [147]. 4 (1995) 183 CLR 501. 5 See Mohammadi v Bethune [2018] WASCA 98 [31]-[36]. 6 [2020] WASCA 180 [178]; Limitation Act s 44. 7 [2020] WASCA 180 [183]. 8 [2020] WASCA 180 [190]. 9 [2020] WASCA 180 [182]. 10 [2020] WASCA 180 [187]. 11 [2020] WASCA 180 [183]. 12 [2020] WASCA 180 [188]. 13 [2020] WASCA 180 [215]. 14 [2020] WASCA 180 [216], [218], [222]. 15 [2020] WASCA 180 [219]. 16 [2020] WASCA 180 [221], [222]. 17 [2020] WASCA 180 [239].

HIGH COURT JUDGMENTS Dr Michelle Sharpe Castan Chambers, Melbourne

Abuse of process In Victoria International Container Terminal Limited v Lunt [2021] HCA 11 (7 April 2021) the High Court had to consider whether an applicant’s motive for commencing proceedings (and concealment of that motive) amounted to an abuse of process that necessitated a permanent stay of the proceeding. The first respondent, Mr Lunt, was a member of the Maritime Union of Australia (MUA) for more than two decades before it merged with the Construction, Forestry, Mining and Energy Union to form the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). While a member of the MUA, Mr Lunt was employed by the appellant until his dismissal. Mr Lunt commenced proceedings (the First Proceeding) in the Federal Court against the appellant claiming that the appellant had breached the Fair Work Act 2009 (Cth) by, among other things, breaching the Victoria International Container Operations Agreement 2016 (Enterprise Agreement). Mr Lunt later sought leave to amend the First Proceeding to seek an order quashing the Fair Work Commission’s (FWC) approval of the Enterprise Agreement on the grounds that the approval was beyond the jurisdiction of the FWC. Leave was refused and so Mr Lunt commenced a fresh proceeding (the Second Proceeding) seeking this relief. The appellant brought an application for summary dismissal of the Second Proceeding on the basis that it was an abuse of process. The primary judge found that the MUA and CFMMEU were reluctant to bring proceedings in their own names because of the risk that they would be refused relief on discretionary grounds given that the MUA had acquiesced in the approval of the Enterprise Agreement by the FWC. The primary judge found that, for this reason, the CFMMEU had engaged Mr Lunt as the “front man” in both the First Proceeding and the Second Proceeding. The primary judge allowed the appellant’s application, and

58 | BRIEF AUGUST 2021

summarily dismissed the proceeding because, the primary judge concluded, Mr Lunt had brought the Second Proceeding not to vindicate his own right but rather for an “illegitimate and collateral purpose”. Mr Lunt subsequently appealed, successfully, to the Full Court of the Federal Court. The Full Court reasoned that because Mr Lunt sought to obtain a result within the scope of the remedy sought in the Second Proceeding there was no impropriety of purpose and, as such, no abuse of process. The appellant subsequently appealed to the High Court and failed: the High Court unanimously upheld the Full Court’s decision. Keifel CJ and Gageler, Keane and Gordon JJ (the majority) set out their reasons in a single judgment. Edelman J agreed with the majority and added a few observations of his own in his own judgment. The majority, at [23], drew a distinction between motive and purpose. The majority cited William v Spautz (1992) 174 CLR 509 at 526527 in which the plurality (Mason CJ, Dawson, Toohey and McHugh JJ) said, among other things, that an abuse of process is “when the purpose of bringing proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers”. The majority noted at [24] that Mr Lunt’s desired result, quashing the Enterprise Agreement, fell squarely within the scope of the remedy sought in the Second Proceeding. And “That Mr Lunt did not desire the result for himself, or desired the CFMMEU to take the benefit, does not change this fact” (Edelman J makes the same observation at [39]). The majority also did not see that Mr Lunt’s lack of candour about his relationship with the CFMMEU warranted a dismissal of the Second Proceeding. The majority considered at [27]-[30] that there was nothing objectionable about the relationship and Mr Lunt was under no obligation to disclose it. And, in any event, the majority observed at [32] that

the Court’s powers in relation to abuse of process are not concerned with punishing or deterring parties for their lack of candour. Instead, these powers are “exercised in order to protect the integrity of the court’s own processes”. Edelman J at [43] also considered that a permanent stay of the Second Proceeding was an inappropriate response to Mr Lunt’s lack of candour: If the Court’s discretion miscarried because of Mr Lunt’s concealment of his relationship with the CFMMEU then a new trial can be ordered. Edelman J noted that: “If the integrity of the court can be protected by remedies less drastic than a permanent stay of proceedings then there is no justification for a court to go further than necessary to protect its processes by denying a party the liberty of a fair hearing”.

Criminal law Conspiracy The poets might claim that for those in love two hearts beat as one but, in Namoa v The Queen [2021] HCA 13 (14 April 2021) the High Court had to consider whether, for the purposes of a criminal conspiracy, a married couple are, legally, as one person. Section 11.5(1) of the Criminal Code (Cth) (the Code) creates the statutory offence of conspiracy. Section 11.5(1) provides: ‘A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed”. The appellant was found guilty by a jury of conspiring to do acts in preparation for a terrorist act contrary to ss11.5(1) and 101.6(1) of the Code. Prior to the trial the appellant applied for a permanent stay. The appellant argued that she could not be found guilty of conspiracy under the Code because she and her co-conspirator

were married. The appellant pointed to a common law rule that spouses alone cannot conspire and argued that this rule affects the meaning of “conspires” and “conspiracy” in s11 of the Code. The trial judge dismissed the appellant’s application. The appellant unsuccessfully appealed to the Court of Criminal Appeal of the Supreme Court of New South Wales. The Court of Appeal considered that the language of the Code was clear: a husband and wife are each a “person” and, as such, can be guilty of conspiring with each other within the meaning of s11.5 of the Code. The appellant was similarly disappointed in her appeal to the High Court. Gleeson J (with whom Gageler, Keane, Gordon, Edelman and Stewart JJ agreed) found at [9] that the Court of Appeal was right in reaching the conclusion that it did. Gleeson J observed at [11] that a “code is to be construed according to its natural meaning and without any presumption that its language was intended to do no more than restate the common law”. The appellant cited authorities from New Zealand, Canada and the United Kingdom in which the court recognised a common law rule that a husband and a wife, alone, cannot be convicted of conspiracy. Gleeson noted at [27] that Lord Denning MR, in Midland Bank Trust Co Ltd v Green [No 3] [1982] Ch 529 at 538, explained the existence of the rule to be a ramification of the doctrine of unity between husband and wife. And, at [24]-[25], Oliver J, in Midland at 521, considered that “the continued existence of the rule, in relation to the crime of conspiracy rests ... not upon a supposed inability to agree as a result of some fictional unity, but upon public policy which, for the preservation of the sanctity of marriage [married author laughs

out loud], accords an immunity from prosecution to spouses who have done no more than agree between themselves in circumstances which would lay them open, if unmarried to a charge of conspiracy”. But Gleeson J pointed out that in none of the cases, cited by the appellant, the Court was concerned with the meaning of the word “conspiracy”. Gleeson J drew upon the definition of “person” in the Code at [14] and extrinsic materials at [29]-[33] to conclude that s11.5(1) did not include a common law rule that a husband and wife cannot conspire. This extrinsic material included reports from various review committees which had declared the common law rule to be unhelpful, outdated and unacceptable to a modern society and recommended that the rule not be retained.

Tort Unlawful means conspiracy Charles Dickens’ great literary work Bleak House centres on the fictional legal proceeding of Jarndyce v Jarndyce, a legal dispute between family members that carried on through several generations. In Victoria, the courts had their own, real life, version of Dickens’ fictional case which culminated in the High Court decision of Talacko v Talacko [2021] HCA 15 (12 May 2021). The High Court decision is the final chapter of a legal dispute that spanned some 20 years and two generations of the Talacko family and employed a revolving door of solicitors and counsel (including this author in hearings before McDonald J and Sloss J) with multiple parallel proceedings (including proceedings for contempt: see R v Witt [2016] VSC 19). The story begins with Alois and Anna

Bequests Help Save Cats’ Lives For nearly 60 years, Cat Haven has relied on the generosity of West Australians bequests and donations to keep our doors open for cats in need. We are WA’s premier cat welfare organisation taking in over 8,000 cats a year and rehoming close to 90%. We can assure your clients in the unfortunate situation of them passing away before their much loved

Talacko. Alois and Anna had three children: Helena, Peter and Jan Emil. They owned substantial property which included: five buildings in the centre of Prague (the Prague Properties), about 17 hectares of agricultural land at Repy located on the outskirts of Prague, about 0.8 hectares of agricultural land in Kbely being a suburb of Prague, a 368 hectare private forest plantation at Sucha in the north-east of Slovakia and an apartment building and adjacent vacant land in Dresden, East Germany (collectively, the Properties). In 1948 the Talacko family fled their home in Czechoslovakia and settled in Australia. All of the Properties were seized by the communist regime then in power in Czechoslovakia or (in the case of the Dresden property) in East Germany. Alois and Anna died in 1964 and 1984 respectively. Following the Velvet Revolution in 1989, communist rule came to an end in Czechoslovakia. Properties seized by the regime were returned, by the new Czech. Republic, to their previous owners if those owners met certain conditions which included having Czech citizenship. In 1991 Jan Emil applied for the restitution of the Prague Properties. At the time Jan Emil was the only sibling who had applied for and obtained Czech citizenship and was eligible to seek their restitution. In 1992 Jan Emil had most of the Prague Properties restored to him as well as the Repy, Kbely and Sucha properties. And here is where the trouble begins. Helena and Peter claimed, and Jan Emil denied, that there had been an agreement between the siblings that any interest recovered by them, in their parents properties, would be held in trust for all of them to share in equally. In 1998 Helena and Peter’s estate (Peter having died in 1995) brought

Please Donate, Adopt Foster, Bequeath, Volunteer

companion cat we will rehome it in a similar home as to the one it has come from via our Cat Custodians Program. All we ask is they remember us in their estate after providing for family and friends. For further information please go to our website www.cathaven.com.au or call CEO 9442 3600 for a brochure.

proceedings in the Victorian Supreme Court against Jan Emil. The proceeding settled two days after the commencement of the final hearing. Clause 1 of the written settlement agreement provided that Jan Emil would transfer title in certain properties to persons nominated by Helena and those claiming through Peter’s will. Clause 6 provided that, if Jan Emil failed to comply with clause 1, he would be required to pay equitable compensation. Some time later Jan Emil refused to execute the documents for the transfer of the properties. Helena and Peter’s estate subsequently applied to reopen the 1998 proceeding and leave to enter judgment against Jan Emil for compensation under clause 6. Jan Emil argued that he had not breached the settlement agreement and that clause 6 was otherwise void for uncertainty. In 2008, following a trial on issues of liability only, Osborne J found against Jan Emil in favour of the respondents. In November 2009, Kyrou J determined the quantum of equitable compensation payable by Jan Emil (Judgment Debt). But, in May 2009, Jan Emil executed three donation agreements by which he transferred the Prague Properties and the properties in Repy and Kbely to his sons; David and Paul (Donation Agreements). Both sons had relocated to Prague with their families after the commencement of legal proceedings. Jan Emil, denuded of these properties, was declared bankrupt in 2011. In 2012 the respondents obtained a certificate from the Pronthonotary of the Supreme Court of Victoria certifying the Judgment Debt with a view to recovering that debt in the Czech Republic. But in May 2015 (after Jan Emil’s death in 2014) Sloss J declared that the consequence of Jan Emil’s bankruptcy was that the certificate is invalid (note that the High Court upheld Sloss J’s decision in 2017). Importantly, in 2009, after Jan Emil entered into the Donation Agreements, the respondents commenced proceedings in the Supreme Court of Victoria against Jan Emil, his wife and sons (the Jan Emil Family) claiming that, together, they had committed the tort of unlawful means conspiracy. In April 2015, McDonald J held that the respondents had proved all of the requirements to establish the tort save for loss and damage. McDonald J held that the respondents had not proved that they suffered any of the various categories of loss alleged which included being prevented from recovering the Judgment Debt by the

Donation Agreements and the costs and losses incurred by the respondents in seeking to recover the Judgment Debt. McDonald J considered that any alleged loss was contingent on whether the Czech courts would have enforced the Judgment Debt and whether they would have made any costs orders in the respondents’ favour. The respondents’ appealed successfully to the Court of Appeal. The Court of Appeal accepted that the respondents had suffered an immediate loss as a consequence of the Donation Agreements, being a loss of opportunity to enforce the Judgment Debt, and costs. The Court of Appeal noted that the prospects of enforcement of the Judgment Debt in the Czech courts was an issue that went to the quantum of damage, not its existence. As to the costs incurred in seeking to enforce the Judgment Debt, the Court of Appeal did not consider this loss to be contingent at all. The Court observed that these costs had actually been incurred and any recovery by way of a costs order on an indemnity basis was only a mere possibility. The matter was remitted to McDonald J to determine quantum. McDonald J considered that prior to the Donation Agreements, the respondents had a 75 per cent chance of recovering the Judgment Debt and, after the Donations Agreements had been entered into, a 20 per cent chance. Therefore, McDonald J assessed the respondents’ loss to be 55 per cent of the Judgment Debt plus their costs. The Respondent unsuccessfully appealed to the Court of Appeal, complaining that the 20 per cent discount was too harsh. The Jan Emil Family appealed to the High Court and the respondents crossappealed. In a unanimous decision, delivered in a single set of reasons, the High Court dismissed the appeal and allowed the cross-appeal. The High Court observed, at [40], that a loss of an opportunity includes two categories of loss: “(i) instances where a defendant’s tortious act deprives a plaintiff of an opportunity or chance to which the plaintiff was not entitled but where such deprivation constitutes an immediate loss; and (ii) instances where a defendant’s tortious act reduces or extinguishes the value of a plaintiff’s existing right, where the value might be quantified by reference to the likelihood of future events”. The High Court noted at [41], citing HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLT 640 at 656, that quantifying the value of the lost opportunity in respect of both categories can depend on “estimating the significance of events

which are, or may be, yet to come”. And, in respect of the second category, it must be shown that there has been a permanent impairment of the value of the plaintiff’s existing right. The High Court, at [49], accepted that the respondents’ loss fell within the second category and that the loss was permanent by reason of the fact that Jan Emil had denuded himself of the properties; indeed that had been Jan Emil’s intention when he executed the Donation Agreements. Although the High Court acknowledged, at [47], the correctness of the Jan Emil Family’s submission, citing Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, that the mere risk of future loss does not count for loss or damage, the High Court, at [48], considered that Wardley was distinguishable from the present case because the respondents, unlike in Wardley, had an existing right (the Judgment Debt). In respect of the quantification of that loss, the High Court considered, at [58], that the 20 per cent reduction of damages amounted to an “unjustifiable shift of the risk of those speculative proceedings from the wrongdoers to the victims”. The High Court noted that it had not been shown that there was any real value to the respondents in the enforcement proceedings in the Czech courts. As to the respondents’ legal costs in seeking to enforce the Judgment Debt, the High Court, at [60], noted that, as a matter of principle, costs of litigation that are reasonably incurred in an attempt to reduce losses by wrongdoing are a head of loss. Accordingly, the High Court made orders dismissing the Jan Emil Family’s appeal and allowing the respondents’ cross-appeal; and an order varying orders made by McDonald J, in the Supreme Court of Victoria, to award the respondents’ damages at 75 per cent of the Judgement Debt (that is without the 20 per cent discount).

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

FEDERAL COURT JUDGMENTS By Dan Star QC, Theresa Power and Anthony LoSurdo SC

Industrial law and practice and procedure Challenge to a report of a referee regarding causation under s545 of the Fair Work Act 2009 In Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 348 (1 April 2021) the Court rejected a report of a referee pursuant to s54A(3) (c) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). In a previous judgment the Court found the union contravened the Fair Work Act 2009 (Cth) (FW Act): [2019] FCA 451; (2019) 286 IR 52. The remaining issues in the litigation were (1) the identification and quantification of any entitlement to statutory compensation; and (2) whether the Court should impose any pecuniary penalty. The Court referred some aspects of the issues as to the entitlement to statutory compensation to a referee for inquiry and report: see (No 2) [2020] FCA 1093. The referee prepared a report and the parties were in dispute as to whether the report should be adopted or rejected. The power of the Court to determine how to proceed with a referee report after it has been “provided to the Court” is in s54A of the FCA Act and rule 28.67 of the Federal Court Rules. Lee J relied on the principles in Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 at [7] as setting out the considerations relevant to the Court’s discretion as to whether or not to adopt a referee report (at [15]). Lee J held that the referee’s report should be rejected in whole. In summary, this was because the referee had gone beyond the questions and concepts that the Court asked

him to address, being those related to factual causation. Further, the referee misunderstood the legal principles applicable to causation in the context of s546(2)(b) of the FW Act, the scope of the questions and, more specifically, blurred the line between factual and legal causation and that misunderstanding coloured the referee’s report on the evidence before him (at [9]). Rather than referring the matter back to the referee, the Court will in due course determine all remaining issues (at [53]). Lee J observed at [47]: “For reasons I have already explained, the line was blurred between the task of the Court and the specific questions put to the Referee for resolution, in this case the line between factual and legal causation. I mean this with no disrespect to the Referee. I thought it was clear, given the nature of my Reference Judgment, but perhaps in future in matters such as this it may be useful for there to be a case management hearing where a nonsubject matter referee is apprised directly by the Judge of the precise nature of the task the referee is being asked to undertake”.

Practice and procedure and legal practitioners Application to restrain solicitor from acting against former client In Sacca v El Saafin [2021] FCA 383 (20 April 2021) the Court dismissed an interlocutory application by the first defendant seeking an order restraining a solicitor from acting for the plaintiff in the proceeding. In doing so, Anastassiou J summarised the three potential bases that might justify the exercise of the Court’s jurisdiction to restrain a solicitor from acting against a former client, being:

1. misuse of confidential information (at [26]-[27]) 2. the duty of loyalty owed by a solicitor to their former client even after the solicitor’s retainer has been terminated (at [28]-[29]) 3. the due administration of justice to protect the integrity of the judicial process (at [32]-[33]).

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

Consumer law Admitted contraventions of s21 of Australian Consumer Law – determination of pecuniary penalty – declaratory relief and penalties awarded in terms sought by parties. In Australian Competition and Consumer Commission v Telstra Corporation Limited [2021] FCA 502 (13 May 2021, Mortimer J) the ACCC commenced proceedings in the Federal Court against Telstra in respect of alleged unconscionable conduct (s21 of the Australian Consumer Law) that occurred between January 2016 and August 2018. The parties ultimately filed a statement of agreed facts and admissions and proposed consent orders. The Court conducted a hearing in relation to the proposed orders and quantum of penalty. Factual setting The contraventions occurred in five Telstra stores which serviced remote Indigenous Australian communities

The Children sought a quia timet injunction to restrain the Minister from exercising her power under ss130 and 133 of the EPBC Act in a manner that would permit the extraction of coal from the Extension Project.

and sold post-paid services with “add ons” to customers. It was agreed that Telstra was in a substantially stronger bargaining position than the affected customers because of the personal circumstances of many of the affected customers, including that many of them spoke English as a second, third or fourth language, had difficulty with reading, writing or understanding financial concepts and were unemployed and dependant on government benefits. Telstra was also the only service provider in many of the affected remote communities, such that the customers had little or no choice but to use the Telstra stores. Telstra admitted, among other things, that its staff had in some instances:

engaged in unfair tactics by not giving a full and proper explanation of the contract and charges

falsely represented the impression that customers would receive a device for “free”

sold customers extra “add ons” that they did not want

failed to take adequate steps to determine whether the cost of the post-paid products and services were affordable for the particular consumer

exploited the consumer’s lack of understanding and/or took advantage of a cultural propensity for Indigenous Australian people to express agreement as a means of avoiding conflict

manipulated aspects of Telstra’s credit assessment process, which meant that affected consumers were approved for the post-paid

62 | BRIEF AUGUST 2021

products when they should not have been. All of the affected consumers consequently incurred significant debts to Telstra, averaging $7461. Some of those debts were sold by Telstra to third party debt collectors. Telstra subsequently waived all the debts and refunded amounts to the sum of $979,507. Proposed penalty The parties proposed that Telstra pay a pecuniary penalty of $50 million. Telstra also agreed to enter into an enforceable undertaking with a term of five years and to enhance the “digital literacy training” programs for customers in nominated Aboriginal communities. Consideration Mortimer J addressed the principles relevant to the Court’s consideration of penalty, including that the Court is not bound to give effect to the sum proposed by the parties (at [30] ff). Her Honour noted at [46]-[50] that the total statutory maximum penalty available in this case was more than $130 million. Her Honour accepted that, particularly as the facts were agreed, the conduct arising from each individual store could be characterised as a single course of conduct. The Court accepted that the totality principle did not warrant an alteration (up or down) to the proposed penalty sum because of the significant overlap in wrongdoing. The Court accepted the parties’ submission that the nature, extent and duration of the conduct was “extremely serious”, geographically widespread, systematic and dishonest. The loss and damage was of a serious kind. Telstra’s

cooperation with the ACCC had been substantial and deserved recognition. Its public apology was also given weight. The Court accepted the parties’ joint proposal as to a total penalty of $50 million, and also granted the declaratory relief sought by the parties.

Environmental law and negligence Representative proceeding seeking a declaration that a duty of care be recognised and an injunction be granted restraining its breach – Environment Protection and Biodiversity Conservation Act 1999 (Cth) – novel duty of care – whether the Minister for the Environment owes Australian children a duty of care when approving the extraction of coal – risk of injury from climate change At issue in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 (27 May 2021, Bromberg J) was the novel question as to whether the Minister for the Environment owed the applicants, eight Australian children, who brought the proceedings on their own behalf and also in a representative capacity (Children), a duty to take reasonable care not to cause the Children personal injury when exercising her power under ss130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to approve a

proposal by the second respondent (Vickery) to substantially extend its coal mine operation in Gunnedah, NSW (Extension Project). Background The unchallenged scientific evidence on the future trajectory of global average surface temperatures demonstrated the following: i. the Paris Agreement target of limiting global average surface temperature to well below 2°C, with the ambition to limit temperature to 1.5°C above the pre-industrial level, is unlikely to be achieved without significant overshoot ii. the best future stabilised global average surface temperature which can be realistically contemplated today, is 2°C above the pre-industrial level iii. if the global average surface temperature increases beyond 2°C, there is a risk, ranging from very small (at about 2°C) to very substantial (at about 3°C), that the global surface temperatures will irreversibly increase to about 4°C above the pre industrial level by about 2100 iv. the 100 million tonnes of CO2 attributable to the burning of coal from the Extension Project is likely to cause a tiny but measurable increase to global average surface temperatures. In doing so, it would increase the risk of global average surface temperatures increasing beyond 2°C and the risk of global surface temperatures being propelled into an irreversible 4°C trajectory v. the risk of harm to the Children from climatic hazards brought about by increased global average surface temperatures increases exponentially if the Earth moves beyond a global average surface temperature of 2°C, towards 3°C and then to 4°C above the pre-industrial level vi. the nature and extent of the harm that may be experienced by the Children may fairly be described as catastrophic. One million of today’s Australian children are expected to suffer at least one heat-stress episode serious enough to require acute care in a hospital. Many thousands will suffer premature death from heat-stress or bushfire smoke. Further, substantial economic

loss and property damage will be experienced. The Great Barrier Reef and most of Australia’s eastern eucalypt forests will no longer exist due to repeated, severe bushfires. Do the circumstances give rise to a duty of care? As to foreseeability of future harm, the Court concluded that a reasonable person in the Minister’s position would foresee that, by reason of the effect of increased CO2 in the Earth’s atmosphere and the consequential increase in global average surface temperature, each of the Children is exposed, through the occurrence of heatwaves or bushfires, to the risk of death or personal injury. Section 136(2)(a) of that EPBC Act requires that in approving or not approving a controlled action, the Minister must take into account the “principles of ecologically sustainable development”. Those principles include what is known as the “precautionary principle”. The applicability of the “precautionary principle” to the Minister’s decision-making attunes both the foresight and response required of a reasonable person in the Minister’s position to the risks that the plausible scientific evidence confirms will be faced by the Children.

of the law of negligence and that the Minister had a duty to take reasonable care to avoid causing personal injury to the Children when deciding, under ss130 and 133 of the EPBC Act, to approve or not to approve the Extension Project. Does an injunction lie against the Minister? The Children sought a quia timet injunction to restrain the Minister from exercising her power under ss130 and 133 of the EPBC Act in a manner that would permit the extraction of coal from the Extension Project. In refusing injunctive relief, the Court was not satisfied that a reasonable apprehension of breach of the duty of care by the Minister had been established nor that the extent of the restraint they sought was justified.

Anthony LoSurdo SC is a barrister, arbitrator and mediator in 12 Wentworth Selborne Chambers, Sydney, and Lonsdale Chambers, Melbourne. Joanne Sheperd is a barrister in 12 Wentworth Selborne Chambers, Sydney

The Court concluded that the foreseeability of the probability of harm from the Minister’s conduct may be small, but where the consequent harm was so immense, it “powerfully supports” the conclusion that the Children should be regarded as persons who are so closely and directly affected, that the Minister ought reasonably to have them in contemplation as being so affected when directing her mind to granting approval of the Extension Project (at [257]). The evidence further demonstrated to the Court’s satisfaction that the Children were extremely vulnerable to a real risk of harm from a range of severe consequences caused by climate change, or more specifically, increased global average surface temperature brought about by increased greenhouse gases in the Earth’s atmosphere (at [289]). The Court accordingly found that the relationship between the Minister and the Children justified the intervention

FAMILY LAW CASE NOTES Craig Nicol and Keleigh Robinson Accredited family law specialists Editor and co-editor of The Family Law Book

Property – Systematic and continuing breaches of property orders warranted imprisonment for three years and ten months In Campbell & Louis (Sentencing) [2021] FCWA 64 (15 April 2021) Moncrieff J considered the sentence of a de facto husband who had contravened injunctions on 14 occasions. The Court said (from [16]): “The respondent’s regard for the orders … has been limited only to his attempts at obfuscation by the use of descriptors for transactions that … suggested that his actions were not undertaken in disobedience of the orders. (…) [18] He has utilised for his own benefit funds from the superannuation fund. He has utilised for his own benefit … the property of his mother … in breach of an injunction … (…) [20] He has utilised his undoubted skill as an accountant and auditor … with a seemingly complete disregard for the impact [of] his actions … [21] He has shown no remorse and seeks to excuse his conduct … [22] … [T]he charges individually are not of significance but they form part of a collective pattern of behaviour, the focus of which can only have been to remove from the asset pool property …” The Court concluded (from [54]): “These are serious prolonged and sustained breaches of orders … Whilst I agree that imprisonment should be viewed as a last resort, I hold the view that it is the only appropriate penalty in the circumstances … [55] … I am satisfied that an immediate custodial sentence should be imposed … [56] In other words a total served term of imprisonment of three years and 10 months … [57] … [T]he key to an early release rests in the hands of the respondent who may apply to be released upon the purging of his contempt and upon demonstrating that he has complied with all previous orders … requiring the production of accounts or information…

64 | BRIEF AUGUST 2021

Further, that he disclose the location of funds withdrawn … or account for their expenditure …” The Court also ordered costs fixed at $62,707.

Costs – Provision of a lawyer through the Family Violence and Cross-examination of Parties Scheme is not legal aid, such that the recipient is still exposed to the costs of an ICL In Legal Aid ACT & Westwell [2021] FamCAFC 50 (15 April 2021) the Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) heard Legal Aid ACT’s appeal from Gill J’s refusal to make an order for costs in favour of the independent children lawyer (“ICL”). The mother discontinued parenting proceedings but a costs order was not made, as her lawyer was provided under the Family Violence and Crossexamination of Parties Scheme, which the Court said was “legal aid in respect of the proceedings”. The Full Court said (from [22]): “Section 117(4) … applies when … a party ‘has received legal aid in respect of the proceedings’, which operates to shield that party from being ordered to pay the costs of the [ICL]. (…) [24] … An [ICL] is appointed because the Court has found it is in the best interests of the child … Those best interests are not determined with regard to the financial disadvantage of the parties, but rather by looking at how the best interests of the children might best be advanced. The ability of the parties to pay for that representation … does not bear on that question. … (…) [27] It follows that ‘legal aid’ as it appears in s 117(4) should be given the same meaning as in s 117(2A)(b) – namely, a formal grant of aid from a recognised legal aid agency. (…) [40] We are therefore satisfied … the reference to ‘legal aid’ in s 117(4) does not include a reference to the provision of funding of a lawyer under s 102NA where that funding is from a legal aid body. [41] … [I]t would be a bizarre outcome if

a person who receives legal assistance … under the Scheme brings with it an immunity against the costs of the [ICL] to the alleged perpetrator of family violence, but the other party … remains liable to pay them. Such an outcome is not consistent with the Act as a whole, with its many provisions dealing with family violence or s 102NA itself. … ”

Property – Trust for sale sought by wife – Dismissal of wife’s application to restrain husband from making a vendor bid In Field & Kingston (No. 3) [2021] FamCA 167 (25 March 2021) Wilson J heard a wife’s application for her appointment as trustee for sale of a property registered in the husband’s name. She also sought an order restraining him from making a vendor’s bid. The wife feared that the husband would agree to unfavourable terms and that he would submit an unrealistically high vendor bid to thwart the sale. Dismissing the wife’s application, Wilson J said (from [16]): “ … [T]he auction contract … contain[s] express provisions for the making of a vendor bid. … [17] I am unable to find a contractual basis upon which … the husband is enjoined from making a vendor bid. … In debate with [the wife’s lawyer] I … raised with him the test propounded in Blueseas Investments Pty Ltd & Mitchell [1999] FamCA 745; which … restates the conventional learning on the grant of an injunction namely, that the applicant must demonstrate … the existence of a serious issue to be tried and that the balance of convenience favours the granting of the injunction. I am not persuaded that the applicant has demonstrated anything remotely approximating such an entitlement and on that basis alone, aside from the express provisions of the contract, I rule against the wife … [18] In all I am not persuaded that it is proper to appoint the wife as the trustee for the sale. [19] … [O]n behalf of the husband [counsel submitted that] … a trustee must not put … itself in a position where there might be a conflict between duty and interest. Self-evidently, the risk of the emergence of such a conflict would

arise (or I apprehend that there is a substantial risk to that effect) if the wife were appointed as a trustee because there is a substantial risk that she might agree to any price that is obtained at the auction. In those circumstances I am not persuaded that the wife is entitled to the orders that she seeks.”

Child support – Section 90UD financial agreement was not a binding child support agreement In Piper & Talbot & Anor [2021] FCCA 511 (18 March 2021) Judge Bender heard a father’s appeal from a decision of the Administrative Appeals Tribunal as to whether a financial agreement made pursuant to s 90UD of the Act was also a child support agreement. The parties made the financial agreement in April 2015 following the breakdown of their relationship, which the mother registered with the Child Support Registrar in May 2018. The Court said (from [53]): “… s 84(5) of the [Child Support] Assessment Act states that the same document can be both a Child Support Agreement and a parenting plan, a Child Support Agreement and a Maintenance Agreement or Financial Agreement under the Family Law Act or a Child Support Agreement and a Part VIII AB Financial Agreement. Given my finding that the principles of law and equity are applicable to Binding Child Support Agreements, it will be necessary for the parties to have intended that the component of their joint document which relates to child support be a Binding Child Support Agreement … (…) [165] … [I]t was incumbent upon the Tribunal … to look at the agreement as a whole, including the recitals, to satisfy itself that the legal advice given not only related to … Part VIII AB of the Family Law Act, but also related to … Part 6 of the Assessment Act as the parties’ rights and the advantages and disadvantages of the agreement are clearly very different depending upon which agreement the advice is being given for. [166] Whilst there is no statutory requirement … that a binding child support agreement specifically state that it is made pursuant to Part 6 of the Assessment Act … the Tribunal had an obligation … to read the agreement as a whole to determine if on its face the Tribunal could be satisfied the advice given was the effects of the document as both a financial agreement under the Family Law Act and a binding child support agreement under the Assessment Act.” The Court upheld all grounds of appeal and made a declaration that the s 90UD financial agreement was not a binding child support agreement.

Appeal – “Gross and deplorable” seven year delay in handing down judgment “contributed to the making of substantial errors” In Manifold & Alderton [2021] FamCAFC 61 (4 May 2021) the Full Court (Strickland, Kent & Austin JJ) heard a father’s appeal from parenting and property orders made in September 2020, where the trial concluded seven years earlier. After a trial in 2013, further evidence was taken in March 2018, after which judgment was reserved again. A further hearing occurred in September 2019. Strickland J, with whom Kent & Austin JJ agreed, said (from [36]): “… [D]elay is not itself a ground of appeal, [but] the authorities are clear that where there is delay, the reasons for judgment must be subject to the strictest of scrutiny … [37] Here … the focus is … the failure by the primary judge to take relevant matters into account, to engage with the father’s case and with the evidence, and to provide adequate reasons … (…) [52] … [H]er Honour concludes … that it is in the best interests of the children … to marginally increase [paternal] … time … [53] The only basis for that decision … are a query ‘whether the father has the capacity to adequately support the children’ … and that the father has not ‘demonstrated’ how he would attend to the support needed … [54] … [T]hese are all matters … addressed in the evidence, but which evidence was overlooked and clearly not taken into account … [55] This is significant given the extraordinary delay here. … [H]er Honour was required to carry out a more detailed consideration of the evidence, and analysis of the respective cases … than would normally be required. The purpose of doing so would be to demonstrate … that the delay had not affected the decision. That did not occur here. (…) [61] … [T]here is no mention by her Honour of any difficulty experienced … as a result of the loss of the file and the exhibits. There being nothing said … to explain how she overcame the absence of these documents … provides another basis for finding that that decision is unsafe. … ” The case was remitted for rehearing and costs certificates were ordered.

Property – Anshun estoppel applied to wife’s second application to set aside order under s 79A In Amery & Kedrina [2021] FamCAFC 79 (25 May 2021) the Full Court (Ainslie-Wallace,

Ryan & Tree JJ) considered a wife’s appeal after her second application to set aside property orders had been permanently stayed. The Full Court said (from [52]): “ … [T]o preclude the wife from bringing her claim under s 79A(1)(a) of the Act, it was necessary for his Honour to determine whether: the issue sought to be raised in the second proceedings was so relevant to the subject matter of the first proceedings that it was unreasonable for it not to have been raised in the first proceedings … (…) [70] … The question of whether two proceedings are ‘connected’ or ‘so relevant’ to one another, that it would be unreasonable not to have raised the point … in the first proceedings, is determined by having regard to the substantial equivalence of rights and subject matter of the actions, not the outcome achieved or the orders sought. … (…) [72] Here, the wife’s rights arose from s 79 and in the first and second proceedings she sought remedies pursuant to s 79A which, were she successful, would permit only of variation or of setting aside the existing orders and, in their place, different orders pursuant to s 79 would be made. Even though the first and second proceedings sought different outcomes … they both concerned her rights … under s 79 … Thus in our view the ‘sources and incidents’ of the wife’s rights are found in s 79. … [I]t was uncontroversial that at the time of instituting the first proceedings the wife was in possession of the information and documents critical to her decision to institute the second proceedings. Plainly enough, the asserted rights were of a substantially equivalent nature and covered substantially the same subject matter. (…) [88] … His Honour found that the proposed application, if allowed to continue, brought with it the prospect of contradictory judgments … and referred to the general acceptance that if a successive action would result in a judgment in conflict with the first, the successive action will be stopped … ” The wife’s appeal was dismissed.

Children – Failure of an ICL to respond to a self-represented litigant’s enquiries does not warrant the ICL’s removal In Fisher [2021] FamCA 236 (26 April 2021) Williams J heard an application by a father to discharge the appointment of an independent children’s lawyer (“ICL”). The father sought the removal of the ICL as he lacked independence, had kept confidential information from the parties

Member

Privileges

In each issue of Brief we highlight a small selection of the exclusive special offers and discounts our members receive on a variety of goods and services. For the full listing of member privileges head to our website : lawsocietywa.asn.au/member-privileges/

Motoring Australian Motor Vehicle Services (AMVS) offers a Vehicle Buying Service that is 100% customer focused. AMVS will source, negotiate and deliver new vehicles for members of the Law Society of Western Australia at no cost. To find out more about this fantastic service for Law Society members, please read an introductory letter from the Managing Director of AMVS here.

Finance Legal Home Loans is Australia’s only mortgage and finance broker that specialises in lending to legal professionals members. Members of the Society receive a $500 cash rebate upon loan settlement.* ([21]) and had been influenced by the mother’s lawyer ([24]). After citing Horner & Horner [2018] FamCA 487 as to the removal of an ICL, the Court said (from [29]): “ … [T]here is nothing unusual about an [ICL], in discharging his duty and obligations, having contact with both legal practitioners for parties and/or the parties themselves, when they are under-represented. I do not perceive that the [ICL] has acted improperly in failing to align his interpretation of the recommendations of the report with the father’s interpretation. He has most properly formed a view at an interlocutory stage of the proceedings, which was entirely consistent with the only independent expert evidence, has conveyed that to the parties and made the appropriate submissions to the court. [30] … [I]t would of course be preferable for the [ICL] to promptly respond to any reasonable enquiries made by a self-represented litigant. However, after reading the father’s email to the [ICL] … some of the questions posed are problematic and inappropriate. … I am of the view that the conduct complained of by the father does not justify a discharge of the [ICL] and cannot be construed … as the [ICL] being derelict in his obligations to the court or representing the interests of the child … [31] For these reasons, I do not intend to

66 | BRIEF AUGUST 2021

discharge the appointment of the [ICL] …”

Children – Costs order – Father’s false denials of violence, admissions and “insouciant attitude” to the mother’s costs In Garrod & Davenort [2021] FamCA 276 (6 May 2021) Bennett J heard a costs application against a father after a 15 day hearing. The Court ordered that the child live with the mother and have no time or communication with the father. The Court said (from [16]): “I have taken into consideration the father’s blatant failure to comply with the requirements of Family Law Rules which impose an obligation of full and frank disclosure. Failing to admit the truth of facts and allegations resulted in the mother incurring unnecessary costs. … [17] The father misled the Court. He consistently denied the mother’s allegations of serious domestic violence … [18] The father … consistently denied the allegations of violence both on oath and in assessment interviews … It was not until the father went into the witness box that he admitted the mother’s allegations of violence … (…) [29] … [I]f the father told the truth from the outset, most of the proceedings may

Home Switch to Kleenheat for your home gas supply and, as a member of the Law Society, they’ll give you a special discount of 30% off your natural gas when you choose the Monthly Smart Saver plan*.

Travel As a member of the Law Society of Western Australia you and your travel companions will enjoy exclusive offers on airfares. Additional benefits are included, such as the Discounted Lounge Scheme, plus much more. *Conditions apply to some offers. For the full list of member privileges please check our website.

have been avoided … [30] … Counsel for the mother was required to cross examine the family report writer at length to unpick her flawed expert opinion … that opinion … having been based on … the father’s false denials and her disregard of violence described by the mother and subsequently admitted by the father. (…) [32] I am satisfied that the father conducted these proceedings with an insouciant attitude to the level of costs his behaviour caused the mother to incur. This factor weighs heavily in favour of the mother’s application for costs. (…) [38] It is submitted on behalf of the father that he has not been wholly unsuccessful because, firstly, he successfully defended the allegations by the wife of physical mistreatment of B. Secondly, he is only restrained for a limited period from instituting further parenting proceedings. … Having regard to the fact that parenting orders are rarely, if ever, final having regard to the many and varied changes of circumstance in a family which can justify the court revisiting parenting arrangements, the father’s position can … be fairly characterised as ‘wholly unsuccessful’. … ” The Court ordered the father to pay costs of $45,000.

Superannuation Guarantee Contributions Increased Changes to Superannuation Guarantee contribution laws mean most employees will receive more super. by Andrew Proebstl Chief Executive of legalsuper

nder Australia’s Superannuation Guarantee (SG) laws, employers are required to pay a set percentage of superannuation into each eligible employee’s super fund, on top of their standard wages or salaries. From 1 July 2021, SG rates increased from 9.5 percent of ordinary time earnings to 10 percent. The SG rate is scheduled to continue to increase until it reaches 12 percent from 1 July 2025 onwards.

Why the increase? SG is increasing to further help Australians save for their life in retirement. The SG rate has increased since its introduction in 1991, from 3 per cent to 9 per cent, and then 9.5 per cent in 2014.1 Out of concern that many retirees would be too reliant on the age pension, and to increase the extent to which Australians have sufficient savings to self-fund a comfortable income by the time they retire, Parliament legislated a gradual increase of the percentage to 12 per cent by 1 July 2025. The 2014 federal budget deferred the 2018 SG rate increase by three years, such that the 9.5 per cent rate remained until 30 June 2021. Five annual increases of 0.5 per cent are now due until SG reaches 12 percent from 1 July 2025.

Why only 0.5 per cent? This stepped increase gives businesses time to plan ahead and manage small increases each year rather than cope with

a 2.5 per cent increase all at once. If you’re an employer and need assistance to navigate the changes and understand your obligations, you’re welcome to contact legalsuper – the industry super fund for Australia’s legal community – for comprehensive, personalised support.

What does this mean for employees? As a result of this change, most employees will receive more super from their employer, but the overall impact of the SG increase will depend on people’s employment arrangements. There may be a potential ‘sting in the tail’ for people whose wages or salaries are packaged in a certain way and they may find they actually take home less pay each pay cycle. People covered under enterprise agreements, or minimum pay standards, are unlikely to be affected. However, those under an employment contract specifying their total remuneration, inclusive of superannuation, may take home less pay from July 1. I would encourage you to check if the SG increase has any implications for your remuneration package, including any salary sacrifice or after-tax contributions arrangements you may have in place. Your super fund and your employer will be able to help you with this.

Looking long term A 0.5 per cent increase to your super

may not seem like much, but over the long-term, with the wonders of compound interest and the lower tax rates applying to superannuation, a small increase in super could make a huge impact on your life in retirement. To help you see what the latest SG increase could mean for you over the long-term, Industry Super Australia2 has an easy-to-use online Superannuation Calculator at https://www.industrysuper. com/retirement-info/retirementcalculators/retirement-balance-projection/. Take a look and find out how much extra you may have in retirement. Legal Super Pty Ltd ABN 37 004 455 789 is the Trustee of legalsuper ABN 60 346 078 879 and holds Australian Financial Services Licence No. 246315 under the Corporations Act 2001. The information contained in this document is of a general nature only and does not take into account your objectives, financial situation or needs. Past performance is not a guide to future performance.

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

End notes 1 https://www.aph.gov.au/About_Parliament/ Parliamentary_Departments/Parliamentary_Library/pubs/ BN/0910/ChronSuperannuation 2 Industry Super Australia (ISA) was established in 2006 and manages collective programs on behalf of the 15 Industry SuperFunds, with the objective of maximising the retirement savings of five million industry super members.

The Tale of The Alarming Affidavit By John McKechnie QC In the Tale of the bootleg brewer, we learned that the entire bar of the Northern Territory, both of them, loathed the magistrate and sometime deputy judge GG Hogan. D Roberts esq and RID Mallam esq were the only lawyers in Darwin in 1921. When one was appointed as prosecutor, the other was appointed as defence counsel. This arrangement continued harmoniously even after another lawyer joined the profession. In 1921, the stipendiary magistrate and deputy judge (or so everyone thought at the time) was Major Gerald Hogan. Born in 1886, and trained as a solicitor, Hogan enlisted in the AIF in 1915 and saw service in Gallipolli, Egypt and France, being mentioned in despatches. Retiring as Major, he moved to the Northern Territory as a Magistrate. For some reason, a mutual antipathy developed between Roberts and Mallam on the one hand, and Hogan on the other. Mallam in particular complained that in court Hogan was rude and offensive. It may be that Major Hogan was a little sensitive to criticism. What else could explain the extraordinary events that would unfold over the most minor matter when executors sought the assistance of the court to give advice in relation to the estate of the late Mr Goodya Singh. When the matter first came before Judge Hogan (as he was then thought to be) Mr Mallam appeared for the executors. Probate had not yet been granted and the judge adjourned the case to the 20th December 1920 for this to occur. On that day, probate had still not been filed and Mr Mallam sought a further adjournment which the court granted to the 17th of January 1921. However it did so while calling on Mr Mallam to show cause why he should not pay the costs of the adjournment personally. Now the dates are important. At that time it was thought that Judge Hogan’s temporary appointment would expire on 14th January and there would be a new judge to deal with the matter. To show cause, Mr Mallam filed an affidavit on the 23 December 1920. The contents of this affidavit alarmed the judge who brought the matter back before him on the 3d of January 1921 (never mind the Christmas holidays) to deal with what he saw as contempt, if not perjury. Mr Mallam was represented by Mr Roberts. In the affidavit Mr Mallam deposed as to the difficulties of getting instructions by mail from his clients who lived in Borroloola, a remote settlement on the McArthur River. These difficulties, Judge Hogan explained, were never made known to the court at the earlier hearing. In fact, suggested the Judge, the picture presented is that of a solicitor worried by the difficulties of communication and the fault was that of the judge who selected the date though it was impossible to get a reply by that time. However Judge Hogan was having none of it. He thought it was sinister that the affidavit also alluded to the forthcoming expiry of the judge’s commission (it was in fact extended).

68 | BRIEF AUGUST 2021

The judge was firm in his conclusion: “I am of opinion that the affidavit was made to deceive the court and would have deceived a court which had not a full knowledge of what had taken place”. Alarming indeed. Difficult not to draw a distinction between such concealment of facts and perjury. So what to do? The judge found the solicitor in contempt. He noted there is no control over practitioners – no bar council or other help, not even strong public opinion. Judge Hogan decided that Mr Mallam was a distinct menace to the proper administration of justice in Darwin and the public must be protected from him. He suspended Mr Mallam from practice for 12 months. Mr Mallam was not the sort to take this lying down. Heading off on his first vacation in 10 years he dropped in at the High Court and obtained a stay, thereby enabling him to argue Presley v Geraghty – the bootleg brewer – in front of Judge Hogan the next month, possibly to the latter’s chagrin. In due course the High Court ruled that Hogan’s appointment as deputy judge was a nullity and all decisions void. An ordinance retrospectively validated all of the deputy judge’s decisions except Pressley v Geraghty – and Mr Mallam’s suspension. What became of the players in this little spectacle played out in a hot and humid summer in Darwin without the benefit of air conditioning? Donald Roberts who appeared for RID Mallam was shortly thereafter appointed a Supreme Court judge replacing Major Hogan. At 32 years of age, he remains the youngest ever appointment to a superior court in Australia. He retired due to ill health in 1928 and was replaced by RID Mallam. He did not pass away for another 30 years. RID Mallam served for only 5 years before also retiring due to ill health. Described as an excellent judge, he was eccentric and witty, a dapper dresser in tropical suit and sunhat, carrying a walking stick and wearing a beard as a display of masculinity. Perhaps someone high in government realised a circuit breaker was necessary to restore peace. In 1922 Major Gerald Hogan was promoted and transferred to German New Guinea (now Papua) as Crown Law Officer. The Territory newspaper expressed its regrets at the loss of an impartial administrator who supplied the necessary courage and ability and he had the good wishes of all fair-minded people. His end was tragic. When the Japanese attacked Rabaul in January 1942, Major Hogan was captured and interned as a prisoner of war. On the 1st July 1942, unaware that it was carrying prisoners to Japan, the submarine USS Sturgeon torpedoed the Montevideo Maru which sank with the loss of more than 1000 lives, mostly Australian. Gerald George Hogan was among them. It is Australia’s greatest maritime catastrophe. Adapted from Re Estate of Singh [1921] NTJ 4

Law Council Update National approach to prevent elder abuse needs to be a priority Committed to tackling elder abuse occurring across the country, a national Roundtable convened by the Law Council of Australia, has recommended that the Commonwealth, state and territory Attorneys-General make the development of nationally consistent laws governing enduring powers of attorney a priority. Chair of the Roundtable, President of the Law Council of Australia Dr Jacoba Brasch QC said, “the purpose of the Roundtable was to increase national awareness of financial elder abuse arising from enduring power of attorney arrangements, and to build the public case as to why more consistent laws and a national model enduring document are required to address such abuse.” “Bringing together national experts from the legal sector including Law Council constituent bodies, public advocates, academia, the

New Members Associate Membership Ms Jessica Garofalo Norton Rose Fulbright Australia Mr Brian Roduner Ashurst Australia Miss Laura Mwiragua Ashurst Australia Ms Phoebe Mather Norton Rose Fulbright Australia Mr Lachlan Casey Murdoch University - School of Law Mr Nathan Giacci Norton Rose Fulbright Australia Mr David Hardman Hitachi Rail STS Australia Pty Ltd Miss Ciara Byrne UWA - Law Faculty Ms Marcia Theron University of Notre Dame Australia Miss Anastasia Causton Jackson McDonald Mr Alexander Copeland Murdoch University - School of Law Miss Rachel Lendich UWA - Law Faculty Ms Chelsea McKinney Community Legal Centres Assoc (WA) Inc Ms Eleanor Sturgeon Corrs Chambers Westgarth Ms Nancy Zhao Corrs Chambers Westgarth Mr Jack Hudson University of Southern Queensland Ms Chelsea Robinson UWA - Law Faculty Miss Lara Solomon University of Notre Dame Australia Mr Calvin Best Ashurst Australia Ms Fiona Waring HLS Legal Pty Ltd Miss Maranata Gebremedhin The University of Western Australia Ms Germana Matta Mr Vickram Pom Raja Edith Cowan University Mr Morgan Wade Miss Mikaela English Curtin University School of Business Law & Tax Mrs Chenel Rautenbach

70 | BRIEF AUGUST 2021

judiciary, older persons’ stakeholder groups, the Australian Law Reform Commission, and the Australian Human Rights Commission, the Roundtable also aimed to build consensus on the core essential features of more consistent laws to prevent elder abuse. This would then serve to provide a framework which could be adopted across states and territories and reflected in a national model enduring document. “While enduring power of attorney arrangements are intended to ensure a person’s interests are protected when they lose capacity to make decisions for themselves, perversely, financial elder abuse by appointed decision-makers is often facilitated by those very arrangements. “Today’s publication of a communiqué, summarising the outcomes of the Roundtable, outlines a number of recommendations as a pathway forward. “These include greater consistency in

state and territory laws governing enduring powers of attorneys, to increase clarity and awareness of such documents for all national stakeholders, including Australian families, communities, business, governments and the media, and enhance the overall effectiveness of these laws. “Participants also agreed that the core essential features of nationally consistent laws governing enduring powers of attorney should address standard definitions, standard requirements for valid execution and revocation, the eligibility of the attorney, duties of attorneys, and interstate recognition of execution and revocation. “It is over two years since the then Council of Attorney’s-General (now the Meeting of Attorneys-General) undertook to consider options for harmonising enduring power of attorney laws, and it is time that action is taken.” A copy of the communiqué can be found here.

New members joining the Law Society (July 2021) Miss Izzy Wilson Ashurst Australia Miss Claudia Cardaci DLA Piper Australia Miss Katherine Swann Ashurst Australia Mr Paris Buti Clayton Utz Mr Tae Kim Clayton Utz Ms Alexandra Hughes Clayton Utz Ms Victoria Bandurski Clayton Utz Ms Somya Rajawat Clayton Utz Mr Adam Milward Edith Cowan University - Business & Law Miss Kayleigh McKeith Corrs Chambers Westgarth Ms Sara-Jane Dempsey Edith Cowan University Mr Venugopal Kalicheti UWA - Law Faculty Ms Jetelle Bailye Murdoch University - School of Law Mr Callan White Murdoch University - School of Law Ms Leah Haines Murdoch University - School of Law Ms Kellie Hopkins Edith Cowan University - Business & Law Mr John Chew CKG Legal Dr Ross Phillipson Norton Rose Fulbright Australia Ms Lisa Zilberpriver UWA - Law Faculty Miss Michaela Tam UWA - Law Faculty Mr Daniel Lucanus Ashurst Australia Mrs Madeleine Porter Clifford Chance (Sydney)

Ordinary Membership Mr Robert Hughes Capital Legal Ms Sharon Matashu Rowe Bristol Lawyers Ms Jessekah Forrest McAuliffe Legal Pty Ltd

Mr Joel Daniel White HFM Legal Pty Ltd Ms Isobel Yule Barry Nilsson Lawyers Mr William Clapin Ashburton Services Pty Ltd Ms Ilona O’Brien Corruption and Crime Commission Mr Graeme Alexander Ellery Brookman Pty Ltd Ms Madeleine Smith MinterEllison

Restricted Practitioner Mr Peter Klauz Bennett & Co Miss Maria Zappala HHG Legal Group (ASPL) Mr Dimitri Kagioulis Carter Dickens Lawyers Ms Grace Mary Wilson KWC Legal Pty Ltd (trading as Kim Wilson & Co) Miss Lucinda Howard Department of Planning, Lands and Heritage Ms Amelia McLean Perrella Legal Mr Matthew Price Carles Solicitors Ms Chantal Kong Jackson McDonald Mr Tyson England Williams & Hughes Mr Hylus McEwan Avon Legal Ms Elke Talbot BNT Legal Pty Ltd Mr Demintha Shiyanga Jayaweera Mudiyanselage Peel Legal Barristers & Solicitors Ms Rhiannon Carpenter Edwards Mac Scovell

Part-time Membership Mrs Frances Liston Ellery Brookman Pty Ltd

Professional Announcements

Andrew Bower

Brandon Hetherington

Solomon Hollett Lawyers

Pragma Lawyers

Morgan Solomon & Craig Hollett are pleased to announce the promotion of Andrew Bower and Brandon Hetherington to the role of Senior Associate at Solomon Hollett Lawyers with effect from 1 July 2021.

Pragma Lawyers are pleased to welcome Lauren Wright to our team.

Andrew and Brandon are both outstanding solicitors, who have significant experience in their respective fields. Andrew practices primarily in the areas of commercial litigation and commercial law. Brandon practices primarily in the areas of property law, estate litigation and commercial law.

Classifieds

FOR SALE/LEASE

Part Level 6, 12 St Georges Tce

• Available from September 2021 • 291sqm Fully Fitted CBD Offices • Panoramic River Views

Missing Will Would any person or firm holding or knowing the existence or whereabouts of a Will or other testamentary document of JOHN MICHAEL COLLINS, of 141 Edward Street, Perth, Western Australia, who died on 28 May 2021, please contact Clarissa Quek of Equitas Lawyers on (08) 9228 2881 or by email clarissa@equitaslawyers.com.au within one (1) month of the date of the publication of this notice.

Functioning Modern Law Ofﬁce

Lauren has specialised in employment law, workplace relations and safety since 2017.

Lauren Wright She has assisted senior executives and ASX-listed enterprises, local governments and not for profits to manage a range of workplace relations issues including managing large litigation, ensuring compliance with relevant industrial instruments and legislation, developing contract templates, managing misconduct, redundancies, terminations and post-employment restraints. Lauren graduated from the University of Western Australia with a Bachelor of Arts and a Juris Doctor law degree. She was admitted to practice in the Supreme Court of Western Australia in 2019 and the High Court of Australia in 2020. Prior to joining Pragma, she has worked at both a full-service commercial firm and boutique employment law firm. Lauren is described by her clients as being commercially-minded, straightforward and empathetic.

For advertising opportunities in Brief please contact: Madeleine McErlain Manager, Corporate Communications T: (08) 9324 8650 E: advertising@lawsocietywa.asn.au lawsocietywa.asn.au

Jake Wallman Chris Geers 0403 975 298 0410 493 057

Find out more!

Missing Will Any person holding or knowing the whereabouts of the last Will and Testament of the late JANET BARNARD of 19 Losino Boulevard, Henley Brook who died on 11 July 2021, please contact McFarlane Lawyers, Suite A, 1139 Hay Street, West Perth WA on (08) 9486 9991 or lmcfarlane@mcfarlanelawyers.com.au within 1 month of the date of publication of this advertisement.

Opposite Como The Treasury Attractive rent + outgoings, 84m2,reception, boardroom, 3 offices, kitchenette, toilet.

Agent: 0425 601 881 john.hu@maxwayrealty.com.au

VIEW ONLINE 71

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

Member Assistance Programme

Employee Relations Advice Line

The member assistance programme offers support with personal and work-related issues that may impact your job performance, health, mental and emotional wellbeing.

LawCare WA offers a free confidential telephone advice service to members on personal matters relating to a range of human resources and employee relations issues.*

Service provided by Converge International

Service provided by CCIWA

Phone: 1300 687 327

Phone: (08) 9365 7660

Practitioner Advice

CoronaCare

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

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

Referral service provided by WABA

Phone: (08) 9220 0477

Service provided by Converge International

Phone: 1300 687 327 LawCare WA is available to members of

For more information about LawCare WA please visit

lawsocietywa.asn.au/lawcare

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

Brief August Edition

Articles inside

Justice Larissa Strk

Chief Judge Gail Sutherland

The Hon Carmel McLure, AC, QC

Her Honour Judy Eckert

Margaret Battye Kathleen Hartrey, Molly Kingston and Sheila McClemans

The Hon Christine Wheeler, AO, QC

Justice Gail Archer SC

The Women Should Have a Voice: Edith Cowan’s legacy of social justice in Western Australia

Jane Thompson (nee Stimson)

The Hon Cheryl Edwardes, AM

Her Honour Antoinette Kennedy, AO