Brief December Edition

VOLUME 48

NUMBER 6

DECEMBER 2021

Special Edition Part 1:

Human Rights in Focus

The Inside Story - An Interview with Human Rights Commissioner Lorraine Finlay

The Law, Philanthropy and Shark Wrestling

Also Inside

An entertaining conversation with The Honourable Malcolm McCusker AC QC The Rise of Global Strategic Corruption

We mark international anti-corruption day with a look at clandestine power broking

Dr Ben Gauntlett

An interview to celebrate International Day of People with Disabilities

YLC Black Tie Ball Wrap Up Anti Corruption Day The changing face of local and international corruption Sir Ronald Wilson Lecture Young Lawyers Committee Careers Uncut wrap-up, COVID survey results and more

The Marketplace allows you to find and connect apps to LEAP that will increase your firm’s productivity, efficiency and profitability. With apps catering to payments & financial services, productivity, property & real estate, and more.

leap.com.au/marketplace

Volume 48 | Number 6 | December 2021

CONTENTS

12

20 FOLLOW US

lawsocietywa.asn.au @the_Law_Society_of_Western_Australia

32

LawSocietyWA

44

@LawSocietyWA

ARTICLES 12

Young Lawyers Black Tie Ball Event Wrap-up

Commission 47

The Rise of Global Strategic Corruption

53

Personal Costs Orders Against Legal Practitioners Under the Uniform Law

57

An Interview With Dr Ben Gauntlett

58

YLC Section

59

YLC Careers Uncut Wrap-up

A Brief Introduction to the Law Library by the Hon Justice Stephen Hall

60

YLC COVID-19 Survey Results

65

YLC Top Tips for Working With SRLs

44

Anti-Corruption Feature

65

YLC Aunt Prudence Juris

45

Public Sector Corruption and the Corruption and Crime

68

Event Wrap-up: 2021 Mock Trial Grand Final

16

Special Feature: Human Rights

31

Law Access UNAAWA Human Rights Award

32

Special Feature: The Law, Philanthropy and Shark Wrestling, In Conversation With The Honourable Malcolm McCusker AC QC

43

REGULARS

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, Dianne Caruso, Megan Cramp, Patricia Femia, The Hon John McKechnie QC, Dr Pat Saraceni, Robert Sceales, Eu-Min Teng Proofreaders: Ingrid Briggs, Sonia Chee, Cassandre Hubert 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.

02

President’s Report

75

Federal Court Judgments

04

2022 Council

79

Family Law Case Notes

05

Editor’s Opinion

81

Member Privileges

07

Annual Report

82

Quirky Cases

56

Ethics Column

83

Cartoon

71

WA Case Notes

84

Law Council Update

73

High Court Judgments

85

Professional Announcements

74

New Members

85

Classifieds

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, 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

1

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

Welcome to the December edition of Brief, the final edition for 2021 and my last Report to you as President of the Law Society of Western Australia.

Annual General Meeting The Law Society’s Annual General Meeting was held on Thursday, 18 November and we thank Herbert Smith Freehills for providing us with the use of their Perth offices and for the provision of delicious refreshments.

Members approved the Law Society’s 2020/21 Annual Report and Financial Statements.

Annual Report 2020/21 From page 5 of this edition of Brief, you will find a copy of my Report from the 2020/21 Annual Report, along with selection of key statistics from the Law Society’s activities, represented in graphical form in “The Year in Numbers”. I encourage you to read the full Annual Report, as it provides an insightful overview of the Law Society’s initiatives and campaigns, and demonstrates the Society’s role as the voice of the legal profession. (To view the full Report, please visit our website here: lawsocietywa.asn.au/annual-reports.)

Here is an excerpt: What a transformational year for the Law Society and members this has been! We have all had to speedily overcome and adapt to the challenges of 2020/21. The Law Society has done this while continuing to advocate for law reform and resources that will enhance the effectiveness of the legal profession and ensure the continued equitable administration of justice in the community now and in the future.

Like many organisations, the Law Society was presented with dynamic challenges and opportunities in the 2020/21 financial year.

In response, I am very pleased to report that the Law Society maintained the confidence of the legal profession which was evidenced by our growth in membership of 7.5%.

The Law Society continued to work collaboratively with the Legal Practice Board of Western Australia, the courts, the Department of Justice, the AttorneyGeneral’s Office and many other stakeholders.

We worked closely with the Law Council of Australia and the other Law Society and Bar Associations around Australia working out

2 | BRIEF DECEMBER 2021

how best to support members and provide solutions to challenges during times of uncertainty and disruption. Although WA has had kindergarten level disruption compared to other states.

The number of submissions to government agencies increased from 57 to 65 this year and included public policy debates for consumers and industry groups.

Law Society Council Election Congratulations once again to each of the members who were declared elected to the Law Society’s Council for 2022, and in particular to Ms Rebecca Lee, who was declared elected unopposed as the Society’s next President. I would like to thank all members who participated in the election process.

I look forward to working with Rebecca, her Executive and the other members of the 2022 Council next year in my role as Immediate Past President. You will find a full list of the 2022 members of Council on page 3 (alongside my report).

Finally, best wishes and thank you to the valued members of our Council, Immediate Past President, Nicholas van Hattem, Junior Vice President and Treasurer, Shayla Strapps, Daniel Coster, Craig Slater, Brooke Sojan, Melita Medcalf and Lea Hiltenkamp, who will be finishing their terms at the end of this year. I would also like to thank Mathew Howard SC and Mark Hemery who both resigned this year.

New Senior Counsel On behalf of the Law Society, may I again congratulate the practitioners appointed Senior Counsel, as announced by the Hon Peter Quinlan, Chief Justice of Western Australia in October. The appointments are Mr Geoffrey Bourhill, Mr Steven Jones, Mr Darren Renton, Ms Clare Thompson, Mr Griff Ranson, Mr Terry Palmer and Ms Robin Cohen. The Law Society, profession and the community will all benefit from the contribution of these senior lawyers in the role of Senior Counsel. Ms Clare Thompson is a Life Member, and Mr Geoffrey Bourhill and Mr Darren Renton SC are Members of the Law Society.

Appointment as Senior Counsel is a rare honour granted to those practitioners who have demonstrated eminence in the practice of law especially in advocacy, together with unquestioned integrity, availability and independence. I wish each of them the very best in their appointments.

Open Letter to the Legislative Council On 1 December 2021, I wrote to each member of the Legislative Council regarding the following pieces of uncontroversial but important legislation which are yet to be passed by the Parliament:

Administration Amendment Bill 2021 For more than 30 years when Carmen Laurence, the then Premier stated that this law would be amended, there has always been “more important” legislation to pass – last year it was wheel clamping, this year ticket scalping. No other state disadvantages its community to this extent and in no other State or Territory of Australia is the statutory legacy as low as it is in WA. The current statutory legacy is simply insufficient where the surviving partner is not on the certificate of title for the residential property. The little-known Administration Amendment Bill has had its third reading in Parliament but remains in the Legislative Council.

It is inexplicable, particularly in the year when women’s issues have risen to prominence in the public debate that our own Parliament should be so tone deaf as to continue to defer legislating this non-contentious legislative amendment. It is so important for women who are disproportionately impacted by current law because, statistically, they live longer than men.

The Law Society had anticipated that the changes would be legislated this year.

However, as happened last year, the government wants to prioritise other laws ahead of a law that will change ordinary peoples’ lives. The number of individual members of our community that may be affected by the continued delay are around 20 persons a day. Imagine how many WA citizens could have been helped if the law had been amended 30 years ago when the then Premier, Carmen Laurence said it would be!

Legal Profession Uniform Law Application Bill 2021 and Legal Profession Uniform Application (Levy) Bill 2021 The Law Society has through its website been advising its members and the wider profession that on 23 June 2021 the Legal Profession Uniform Law Application Bill was reintroduced into the Legislative Assembly, following its lapsing before the 2021 State election and that the anticipated commencement date for the Uniform Law was to be 1 January 2022.

Incoming Law Society President Ms Rebecca Lee (left) with current President Jocelyne Boujos (right) at the recent 2021 AGM.

The Law Society hoped that these important reforms would be passed through the WA Parliament without delay. Unfortunately, this has not been the case and the Attorney General has been left with no option other than to again change the anticipated commencement date of 1 January 2022 as both the Legal Profession Uniform Law Bill 2021 and the Legal Profession Uniform Application (Levy) Bill 2021 are yet to be passed in the Legislative Council. This legislation will require education of the profession particularly in respect to the costs and disclosure regime and the Law Society is working with the Legal Practice Board to ensure that a smooth transition will occur for the profession.

Members can read the open letter here.

Other Advocacy Since the last edition of Brief, the Law Society has made submissions on: Workers Compensation and Injury Management Bill 2021 – (Consultation Draft) Aboriginal Cultural Heritage Bill 2021 Amendments to Sentencing Legislation Conditional Cost Agreements under the Uniform Law The status of Registrars as public servants Security of Payment draft regulations Statutory Review of the Home Burglary Act

WA Law Reform Commission review of the Equal Opportunity Act

Thank you for your valuable feedback We received an overwhelming response to our largest survey campaign which closed on 22 November. We asked you to give us 6 minutes of your precious time and we received over 5,000 minutes of open, honest and direct perspectives. Thank you to all who gave the Law Society your valuable time.

Your insights are a gift as now we have a strong idea what we are doing really well, and we know what you want to see more of and indeed, less of.

Your contributions have given us insights that will inform our brand, marketing and communication strategies which will be reviewed and developed early in 2022.

Watch this space!

Thank You and Best Wishes Finally, on a personal note, it has been an honour and a privilege to serve as President of the Law Society. I would like to thank and congratulate my great Executive team, my engaged Council members, our very helpful advisory committees, and dedicated staff whose outstanding work drives the Law Society through today’s challenging landscape and ensures it remains a strong advocate for the legal profession. No President can function without you.

A special thank you to our exceptional Chief Executive Officer David Price for his support and encouragement in making the

past year a rewarding and productive year for me personally and the Law Society as an organisation.

Most, importantly, I would like to thank all our Law Society members for their ongoing loyal support. It has never been more important as the peak professional membership body to stand strong with members and the profession, working in collaboration, on the future of the profession and the maintaining of equitable administration of justice in our community.

Because of your support, the Law Society is proud to continue to be your voice to promote the development and improvement of law throughout Western Australia and assist you in meeting your varied and increasingly demanding practice and professional obligations.

My takeaway from our COVID years I hope will be Strength, Clarity and Optimism: Strength – look what each of us collectively and individually have overcome; Clarity – we learned to focus equally on the important and the urgent – rather than just the ever demanding urgent; Optimism – which I believe has been and will be a major driver in overcoming COVID issues, as we now know that we, and the legal system, can adapt quickly and sensibly and will continue to do so going forward into our COVID Future.

I wish everyone a safe, restful and joyous Christmas holiday season, and the very best for the New Year.

3

2022 COUNCIL Executive Members

Rebecca Lee President

Ante Golem Senior Vice President

Paula Wilkinson Junior Vice President & Treasurer

Jocelyne Boujos Immediate Past President

Barrister, Francis Burt Chambers Council Term Expires: 12/2022

Partner, Herbert Smith Freehills Council Term Expires: 12/2022

Founding Director, Kim Wilson & Co Council Term Expires: 12/2022

Principal, Boujos Legal Council Term Expires: 12/2022

Ordinary and Junior Members

Ben Bullock Ordinary Member

Rebecca Bunney Ordinary Member

Dr Brett Davies Ordinary Member

Angie Gimisis Ordinary Member

Senior Associate, Lynn and Brown Lawyers Council Term Expires: 12/2023

Head of Practice – Family Law, Cullen Macleod Lawyers Council Term Expires: 12/2023

Adj Professor, UWA Law School Council Term Expires: 12/2023

Senior Associate, Hall & Wilcox Council Term Expires: 12/2023

June Kenny Ordinary Member

Gary Mack Ordinary Member

Judy McLean Ordinary Member

Director, JDK Legal Services Council Term Expires: 12/2022

Lawyer, Abacus Legal and Mediation Council Term Expires: 12/2022

Principal Solicitor, Fremantle Community Legal Centre Council Term Expires: 12/2022

Kellie Woods Ordinary Member

Thomas Camp Junior Member

Selina Gates Junior Member

Hamish Glenister Junior Member

Special Counsel, Dentons Council Term Expires: 12/2023

Solicitor, Butcher, Paull & Calder Council Term Expires: 12/2022

Solicitor, Hammond Legal Council Term Expires: 12/2022

Legal Practitioner Director, William Gerard Legal Pty Ltd Council Term Expires: 12/2022

4 | BRIEF DECEMBER 2021

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

Christmas is just around the corner and this last edition of Brief for 2021 is a bumper (or, as is a currently preferred status, boosted) edition. Readers should feel free to read it near others and take it on holidays in WA, or possibly even to Tasmania.

10 December was International Human Rights Day, and this edition features the first of a special two-part Human Rights feature. Brief thanks Greg McIntyre SC (former President of the Law Society) for his erudite and insightful Foreword, which introduces the contributing authors and their articles, and provides thought-provoking comments on issues ventilated by them. The next (February 2022) edition will have Part 2 of this Human Rights feature, so please feel free, empowered and at liberty (puns partially intended) to give Brief any feedback you have about this edition.

The Editor is particularly grateful for Greg’s Foreword, as it supplants that part of the Editorial otherwise addressing in detail the Human Rights feature, liberating more space here for the usual cavalcade of tortured segues (occurring ad nauseam), non sequiturs, the unnecessary use of latin, and split infinitives.

So the Editor is very happy to share his annual remuneration as Editor with Greg, which is apparently two tickets to the new James Bond movie that everyone seems to know the ending to (though there will be no spoilers here as the screenwriters having done a capital job of spoiling the ending all by themselves).

We are grateful for a fascinating interview with The Honourable Malcolm McCusker AC QC by Martin Bennett and Thaw Thaw Htin upon the occasion of, and reflecting upon, his 60th year in the law.

On the theme of international days, International Anti-Corruption Day was on 9 December, and we have the CCC’s Matt McKeone provide a closer look at public sector corruption, a global problem WA is not immune from, and thank Foreign Affairs for permission to republish their insightful (though disconcerting) article on “The Rise of Global Strategic Corruption”.

3 December was the International Day of People with Disabilities, and we have an important and interesting article by Disability Discrimination Commissioner, Dr Ben Gauntlett.

We also have Justice Hall with a reminder of a gem in our midst: the David Malcolm Justice Centre law library, whose dedicated staff provide a fantastic – and free – service to the profession.

As the legal profession eagerly awaits progression of the Uniform Law Konrad de Kerloy has an article on perhaps the ultimate lump of coal in any lawyer’s stocking, “Personal Costs Orders Against Legal Practitioners under the Uniform Law”.

It is fitting that we end 2021 with a Human Rights edition given the everpresent impact of the reactions to COVID, which have involved incidents of isolation and the restriction of movement and other freedoms.

Notably, something that West Australians have long considered an entrenched human right - a Perth test match where one can get sunstroke, taunt and/or then join the Barmy Army and [*tortured segue alert!*] end up looking like John Grant exiting the Bundanyabba Hotel in the 1971 film of Kenneth Cook’s novel “Wake in Fright”, will once again not be enjoyed.

The holiday period lends itself to old movie watching, and it would be remiss to not mention an extraordinary era of Australian movies kicked off in 1971 by two often overlooked classics “Wake in Fright” and Nicholas Roeg’s “Walkabout”, which resulted in the Australian flag being flown for the first time at the Cannes Film Festival 50 years ago. In looking back at some significant Australian cinema, we note also the recent passing away of the great and inspirational David Gulpilil Dalaithngu, whose great talent was initially recognised by Roeg, who cast him in “Walkabout”, and who went on, in addition to many other endeavours and achievements, to star in films such as “Storm Boy,” “The Last Wave”, “Crocodile Dundee I and II”, and “Australia”.

Some Australian films of half a century

Australian cinema accordingly owes much to Harold Holt for hopping into that Chinese submarine in 1967. ago seem relevant to the present, as they frequently deal with themes of isolation, different forms of spirituality, and from where we derive our sense of right and wrong, good and bad, and what is and should be lawful and unlawful.

Wake in Fright is an (often harrowing) examination of an isolated society, the rules and behaviours established therein, and the potential for the breakdown of a supposedly “good” individual in extreme circumstances. The protagonist, John Grant, is an English born bonded schoolteacher (“indentured servitude” as he quips with the local, morally ambiguous, policeman played by the great Australian actor and pioneer of the Australian film industry, Chips Rafferty) in outback SA. Grant is just trying to get back, during school holidays, to Sydney to see his girlfriend, but becomes trapped in Bundanyabba (“the Yabba” aka “the greatest place on Earth”) and is unable to make it out to Sydney, for a host of existentially challenging reasons, unassociated with being unvaxxed.

The film has many lessons, perhaps the most obvious being don’t try to keep up drinking with someone like Chips Rafferty1, and don’t trifle with the supposedly “simple” game of “two up”2.

While acolytes of God Gough Whitlam attribute the explosion in great Australian cinema to Whitlam — who undoubtedly played a major part including by his legendary cameo with Dame Edna Everage/Barry Humphries at the end of Bruce Beresford’s 1972 “The Adventures of Barry McKenzie”3 — it was under Prime Minister John Gorton (who had gone to school with Errol Flynn) that the initiatives and funding for Australian cinema were commenced.

So, as all students of rigorous, factbased, and non-conspiratorial Australian history would appreciate, Australian cinema accordingly owes much to Harold Holt for hopping into that Chinese submarine in 1967.

5

Gorton might have been an unlikely patron for the arts, though it seems he did share Chip Rafferty’s passion for some things as can be gleaned from a few legendary stories. Veteran journalist Laurie Oakes recounted that Gorton once boarded a VIP jet after a boozy dinner, fell asleep, and then was woken by the noise of the engines and was sick on himself. Gorton, a WWII fighter pilot in Malaya and New Guinea, apparently sought to cover for this by asking the stewardess if she was surprised that an old fighter pilot like him would still get air sick, to which the stewardess replied, yes, she was surprised, particularly as the plane had not yet taken off.4 Another notable Gorton performance was when he went to see Liza Minnelli perform at Melbourne’s Chequers Nightclub, where he occasionally nodded off, but did stir to yell out a request: “Sing ‘Over the Rainbow’”.

When he was discreetly informed that this was of course Ms Minnelli’s mother, Judy Garland’s, song Gorton reputedly nodded (and then nodded off to sleep) and a few songs later awoke to shout out: “Sing ‘Over the Rainbow’” .

Gorton apparently made up for his faux pas by charming Ms Minnelli backstage and Minnelli could not have held too much of a grudge against Australians, as she subsequently married “The Boy from Oz” Peter Allen. It is not known however whether Gorton was invited to see her in the premiere of Cabaret (1972) a highlight of which is of course the song “Money” she performs with Joel Grey, as it may have caused great confusion had Gorton belted out the words “New car, caviar, four star daydream, Think I’ll buy me a football team.”

Gorton got something back over Whitlam in that he had a cameo in a Bruce Beresford film, playing himself in the 1978 film version of David Williamson’s 1971 play “Don’s Party”, which revolves around Gorton’s defeat of Whitlam in the 1969 election.

“On the Beach” (1959) is a US film set in Australia, with a depressingly apocalyptic theme but with some resonance with the times of COVID, It starred Gregory Peck and Ava Gardiner and was set in Melbourne, being the last refuge of humanity after a nuclear war has rendered uninhabitable all of the northern hemisphere – the problem being of 6 | BRIEF DECEMBER 2021

course that the radiation (much like whatever comes after Omicron) is slowly seeping its way to Australia to kill everybody. In the original, the cause of the nuclear war is not made clear. However, in a 2000 Bryan Brown and Rachael Ward remake, the nuclear war is attributed to a conflict between China and the United States stemming from China’s attempted invasion of Taiwan. We must forgive the filmmakers at the time for such a wildly fanciful and frankly inconceivable catalyst (they may as well have set the cause of the nuclear war as the Melbourne Football Club in our lifetime controversially winning a Grand Final at a world-class stadium in Perth, Western Australia).

One controversy arising from the filming of the 1959 ‘On the Beach’ and an early example of “fake news,” was the attribution to Ava Gardner of the comment, “I’m here [Melbourne] to make a film about the end of the world ... and this seems to be exactly the right place for it”. West Australians are quite used to this sort of sledge though its attribution to Gardner turns out to have been a fabrication; the Sydney Morning Herald journalist, Neil Gillett, admitting that he made it up (though Ava Gardner later slyly and obliquely suggested she may well have said it). Gillett later expressed his regret, and a feeling perhaps not unknown to the legal profession, and maybe the judiciary especially, being that having worked for 30 years “I have only once written anything worth repeating, and it has been attributed to someone else.”6 Another Australian film with an apocalyptic feel but an intriguing exploration into the spirituality of indigenous culture is “The Last Wave” (1977 - directed by Peter Weir). The film starts off with freak rain storms in Sydney, foreboding premonitions and warnings, and a death in a remote area resulting in a Sydney tax lawyer (played by Richard Chamberlain) being briefed by Legal Aid to defend the accused. This film contains another great performance by David Gulpilil Dalaithngu. To say more would require a spoiler alert, though it can be said that some critics questioned one element of the plot: being the oddity of a corporate tax lawyer taking a Legal Aid brief in an area in which they did not specialise. Or, it may have been a very unkind observation about the likelihood of a corporate tax lawyer taking a legal aid brief. No doubt

corporate tax lawyers can watch the film and let Brief know if they feel they have been unfairly slighted, or honoured, by the film’s pretext.

As noted, this booster edition contains many other items, including many of our regular (and much appreciated) contributions.

Our Young Lawyers’ Committee have had a busy few months, and not just with billing and angling for pay rises.

We have the wrap up from the Young Lawyers Black Tie Ball, the results of an COVID-19 Impact survey, and the much appreciated Aunt Prudence Juris with her customarily humorous advice for new lawyers, including top tips for working with self-represented litigants.

Finally, I wish to sincerely thank my fellow Brief Editorial Committee members for giving up their time, expertise and knowledge so generously. Brief is also indebted to Madeleine McErlain, the Society’s Manager of Corporate Communications, whose tireless work makes Brief possible, our proof-readers, Ingrid Briggs, Sonia Chee and Cassandre Hubert for their invaluable help, our graphic designer Des McKenzie and all the Law Society staff who do internal pre-publication reviews or otherwise work behind the scenes in the production of Brief.

Brief wishes all a happy festive season and a great New Year, hopefully a good break and rest, and encourages any readers who find inspiration to write to Brief about anything at all before our next (February) Edition to please do so.

End Notes 1 Chips Rafferty, during the filming of Wake in Fright’s raucous Yabba bar scenes, told the director he would not drink the no or low alcohol beer being used for the scene, and that he would only drink “real p***”.

2 Donald Pleasance (the most internationally famous of the actors in it, among other reasons, for his appearance in the Bond Film “You Only Live Twice” gives a terrifyingly menacing performance - his portrayal of ‘Doc’ being a quite feasible depiction of what might happen if Ernst Stavro Blofeld had completely let himself go and become an alcoholic doctor in outback South Australia.

3 A film which may have cemented in English-people’s eyes everything they always thought about Australians, and vice versa.

4 “Plenty of odd moments onboard the PM’s RAAF VIP flights”, L Oakes, Herald Sun, 11/4/2009.

5 Untold story of Canberra’s first coup: the political assassination of PM John Gorton – Part 2, Alex Mitchell, 19/1/2019, www.cometherevolution.com.au 6 Ava Gardner’s famous quote that never was, Laurie Barber, 8/5/2017, www.maitlandmercury.com.au

ANNUAL REPORT

Following is the President’s Report and the “Year in Numbers” summary from the Law Society's 2020/21 Annual Report, as approved by members at the Annual General Meeting held in November 2021. A full version of the Annual Report is available on the Law Society's website.

President's Report What a transformational year for the Law Society and members this has been!

We have all had to speedily overcome and adapt to the challenges of 2020/21.

The Law Society has done this while continuing to advocate for law reform and resources that will enhance the effectiveness of the legal profession and ensure the continued equitable administration of justice in the community now and in the future.

recognition of Aboriginal and Torres Strait Islander peoples. A particular focus was reforms to the WA Aboriginal Cultural Heritage Act, and it is of continued concern that a year after Juukan Gorge the 49-year-old unfit for purpose laws are still in place.

During the last 12 months the Law Society strongly advocated in respect of the following issues:

In July/August 2020, the Law Council of Australia called for the establishment of a Federal Judicial Commission, with its main objective to fairly and punctually address complaints directed to the judiciary. The Law Society fully supports the creation, by statute, of an independent Federal Judicial Commission, separate to the executive arm of the government. Introduction of an independent Federal Judicial Commission will enable accountability and enhance the public’s confidence in the administration of justice.

COVID practice directions and legislative reform The Work Health and Safety Bill 2019 (WHS Bill) Delays in the Family Court of Western Australia Aboriginal Cultural Heritage The Statutory Legacy in Western Australia The Community Titles regime Farm Debt Mediation Tendency and Coincidence Evidence Sexual Harassment in the Legal Profession The Legal Profession Uniform Law Application Bills The number of submissions to government agencies increased from 57 to 65 this year (see page 38 of this Report) and included public policy debates for consumers and industry groups.

Some highlights of our Advocacy work are:

The Aboriginal Cultural Heritage Act In support of the Law Council of Australia’s advocacy, the Law Society advocated on national issues, including the continuation of the Indigenous Legal Assistance Programme and constitutional

Judicial Commissions

The Law Society also supports the proposal that a judicial commission be established in Western Australia, generally based on the commission operating in New South Wales; and that any person may complain to the proposed judicial commission about the conduct of a judicial officer. You can read the Briefing Policy Complaints against Judiciary here.

Gender Equity Court Appearance Survey Recent research has demonstrated that women lawyers are not appearing in numbers commensurate with the proportions of women in the profession.

To obtain robust and replicable data to identify whether targets are required to address the limited number of women lawyers appearing in WA Courts, the Law Society arranged for a survey to be conducted to identify those matters in which women appeared. A letter was sent to the Australian Heads of Jurisdiction seeking their assistance with the survey. It is anticipated that

survey results will be compiled by the end of 2021.

2021 State Election Advocacy Campaign The State election in this reporting period provided an opportunity for the Law Society to provide our key policy positions to the Government and Opposition. (Their responses were originally published in the February 2021 edition of Brief.)

The re-election of the Labor Government in WA in March 2021 put the state in a unique position to progress well overdue law reform.

Up until now various Western Australian Governments have not had the opportunity due to their numbers in the Parliament to introduce Bills amending out of date legislation, or new legislation.

With a government majority in both the Assembly and the Council, WA is now in a unique position to have issues such as the outdated Equal Opportunity Act and Administration Act updated and progressed through the Parliament in a timely manner, and we advocated for these amendments to be a priority.

The Law Society is closely monitoring the election commitments made by the Government on our priority areas of court resources and infrastructure, access to justice, abolition of mandatory minimum sentences, increasing the statutory legacy and application of the rule of law. The Law Society has an impartial legislative review role. This is particularly important because the unprecedented greatly reduced opposition representation in Parliament means there are significantly reduced resources to review proposed legislation for the community.

7

Law Week Breakfast: Oral McGuire, Dr Adam Tomison, Department of Justice, Gary Mack, Abacus Legal and Mediation, Greg McIntyre SC, Michael Kirby Chambers, Hon John Quigley MLA, Attorney General for WA, Jocelyne Boujos, President, The Law Society of WA, Dr Jacoba Brasch QC, President, Law Council of Australia, Rebecca Lee, Francis Burt Chambers, Catherine Fletcher, The Information Commissioner of WA

Legal Profession Uniform Law The introduction of the Legal Profession Uniform Law Application Bill is of great significance for the legal profession in Western Australia. Although the bill lapsed at the prorogation of the Parliament, the bills have now been introduced into the new session of the Parliament (following the March election). At this stage, the commencement date for uniform law is 1 January 2022.

WA Courts in Crisis The Law Society raised concerns in June 2021 about the shortage of courtrooms available for criminal trials and the consequent delays in trials in Western Australia. We called on the McGowan Government to urgently commit to an additional four, but preferably seven, new Courts for criminal trials in Perth.

Historic underfunding and a shortage of criminal courts affect the operation of our trial courts and in addition, are limiting and delaying access to justice in the community. The Law Society will continue to press the Federal and WA governments for adequate resourcing for more courts as critical to the ongoing efficiency of the equitable administration of justice in the WA community.

A focus on Access to Justice in the Community – Law Week Law Week 2021 (17 May to 21 May) brought the legal profession and public together with a focus on law and justice in the community. It was a great success, with over 30 events held across Western Australia, including around Perth metropolitan and regional areas.

Law Week attracts a diversity of events including the Law Access Walk for Justice fundraiser, our Old Court House Law Museum Exhibition to honour Edith Cowan, Australia’s first female Member of

8 | BRIEF DECEMBER 2021

Parliament, entitled The Women Should Have a Voice, free clinics for the public, talks and educational initiatives, and the annual Lawyer of the Year Awards. These activities provided increased visibility of the legal profession and the Law Society and highlighted the ongoing commitment to Members and the WA community.

A high point for me was the Law Society hosting its biggest Law Week Breakfast yet – with over 180 legal professionals enjoying an energising morning at the Perth Convention and Exhibition Centre to acknowledge the importance of access to justice for all and to celebrate lawyers making a difference in the community. We were delighted to host the President of the Law Council of Australia, Dr Jacoba Brasch QC, who travelled to Perth especially to deliver the keynote address, “The Call for Change – Law, Culture, Diversity, Voice”.

With the theme of change, the Law Society at the breakfast announced its new cultural change framework (in development at that time). This programme “Change the Culture” aims to provide tools to the profession to help address sexual harassment and bullying in the workplace.

I would like to thank everyone who contributed to another successful Law Week, including our valued supporters and sponsors.

Reconciliation and The Law Society This year’s National Reconciliation Week theme, “More than a word. Reconciliation takes action”, challenged us to take more courageous action that will deliver real impact. As a nation, and also as the legal profession, we need to move from ‘safe’ to ‘brave’ in order to advance reconciliation.

As President, I am proud that the Law Society has been involved with reconciliation for many years in an effort to play its part to make a tangible difference.

Nutha Way is an indigenous youth leadership initiative of the Law Society of Western Australia focused on building better relationships between young people, their communities, the justice system, local police and stakeholders.

First Nation Action Plan The Law Society was privileged to have taken part in Reconciliation Australia’s Reconciliation Action Plan (RAP) program. The Law Society had a Reflect RAP in place between 2015 – 2016 and a Innovate RAP in place from 2017 – 2019. That journey has been a valuable learning experience for the Law Society.

I was pleased that in March 2021 Law Society Council approved a bespoke and innovative First Nations Action Plan to continue the Law Society’s reconciliation journey.

The Nutha Way Project As part of the Law Society’s commitment to indigenous issues and Closing the Gap, its pioneering project Nutha Way reached its first year milestone despite the challenges of operating in regional areas during the pandemic.

Nutha Way is an indigenous youth leadership programme from the Law Society, working to build better relationships between young people, their communities, the justice system and local police. Essentially, the Nutha Way programme is about doing things another way – 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 one-off workshop. Nutha Way has embedded co-design into every aspect of the process over the whole life-cycle of the programme to endeavour to ensure real outcomes. You can read more about Nutha Way and its positive impact on the community here: https://nuthaway.org.au/

Old Court House Law Museum Interpretation The social history displays at the Old Court House Law Museum emphasise truth-telling, expressing views and stories from both sides of the frontier settlement at the Swan River, as British law was overlaid onto thousands of years of Aboriginal lore. The nature of traditional indigenous social order and law is presented to facilitate understanding of how different systems of law contributed to the breakdown of early friendly relations between indigenous people and settlers. That indigenous people continue to be over-represented in the justice system today is also acknowledged.

The audio guide provides visitors with an understanding of the continuing importance of the area to indigenous people today.

This year is the 30th anniversary of the report of the Royal Commission into Aboriginal Deaths in Custody. The disproportionate rate at which Aboriginal people are imprisoned has risen in that period rather than decreased. It has borne a significant relationship to the number of Aboriginal deaths in custody. We need more people speaking up and I invite you to find out more about the Law Society’s “Closing the Gap” advocacy campaign here: https://www.lawsocietywa.asn.au/ law-reform-and-advocacy/closing-thegap/

Reform and Workplace Sexual Harassment During this year the legal profession came under the spotlight for a culture that has allowed inappropriate workplace behaviour. In July 2020, following media reports into sexual harassment, the Law Council of Australia held a national roundtable that brought together experts across the country to consider the issue.

The Law Society of Western Australia was represented at the roundtable by the Chair of the Joint Law Society/Women Lawyers of WA Committee, Charmaine Tsang. Ms Tsang is also the Law Society of Western Australia’s representative on the Law Council’s Equal Opportunity Committee.

I am pleased to report that the Law Society has provided submissions on sexual harassment reforms to the Australian Solicitors Conduct Rules and Commonwealth legislation stemming from the recommendations of the Respect@ Work report. In WA, a submission on our local Equal Opportunity Act will be made to the WA Law Reform Commission in the next reporting period.

As mentioned before, the Law Society also launched a new cultural change framework, “Change the Culture” for the profession, providing tools to help address sexual harassment and bullying in the workplace. This programme offers the profession tools and training around four key pillars: 1. The Evidence: Recent research data which sets out the facts about sexual harassment and bullying in the legal profession and supports a call for change within the legal profession 2. Behavioural Change: Tailored training for individuals and law firms to undertake as a means of taking action to shift the culture 3. Systems and Procedures: Tools to support positive work cultures 4. Confidential Support: Support mechanisms for individuals impacted by sexual harassment and bullying The 2020 National Profile of Solicitors reported that 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 now make up 52% of the profession, further indicating that more women are continuing to enter and stay in the profession. While parity of female leadership in the profession has not yet been achieved, which I find disappointing after the workplace gender breakthroughs in the universities and the profession that took place in the 1990’s and earlier this century, the research indicates that change is underway.

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.

The Law Society sees its role as crucial in the drive towards gender equality and is mindful of reflecting gender equity through its management and advisory committees.

In summary Finally, I would like to thank and congratulate my great Executive team, my engaged Council members, our very helpful advisory committees, and dedicated staff whose outstanding work drives the Law Society through today’s challenging landscape and ensures it remains a strong advocate for the legal profession.

I am particularly grateful to Immediate Past-President Nicholas van Hattem for his leadership last year, especially given the unprecedented, ever changing and ongoing challenges of the pandemic.

Because of the pandemic, the legal system and legal profession have undergone profound change at a rapid rate. Lawyers and how they practise, and the judicial system including basic administration of justice, have had to adapt to forced changes. Flexible legal systems including working from home and the use of existing technology have had to be adopted along with a shift in social expectations. Knowledge of the interplay between courts and technology is more relevant than ever. However, lawyers remain always aware that technology cannot replace the ingenuity that exists in a living, breathing lawyer but it can augment that through memory, process retention and automation, and help legal assistants, paralegals and lawyers do their jobs better. The Law Society and the profession are now perfectly placed in time to embrace these changes. It is a most exciting time.

A special thank you to our exceptional Chief Executive Officer David Price for his support and encouragement in making the past year a rewarding and productive year for me personally and the Law Society as an organisation.

Most importantly, I would like to thank all our Law Society members for their ongoing loyal support. It has never been more important as the peak professional membership body to stand strong with members and the profession, working in collaboration on the future of the profession and the maintaining of the equitable administration of justice in our community. Because of your support, the Law Society is proud to continue to be your voice to promote the development and improvement of law throughout Western Australia and assist you in meeting your varied and increasingly demanding practice and professional obligations.

Jocelyne Boujos President The Law Society of Western Australia 9

A Strong Voice

A Year in Numbers

4,417 Members

Vital Support

Senior Lawyers

73%

Early Career Lawyers

11%

Students & Graduates

8%

Barristers

3%

Associate Members

3%

Judiciary

1%

Firm Managers

1%

3,023 People attended 19 Society events

Includes 12 honorary, 35 life members and 33 on leave members.

Valuable insights Efficient and effective messages Equip our members for a successful career

Registrations for the Law Society’s Continual Professional Development offering. Most were delivered remotely for COVID safety reasons.

5,680

8

Face-to-face seminars

58

72

Live webinars

eLearning on-demand seminars

1,926

1,382

49

47

Professional Standard Scheme participants

Law Mutual Risk Management Workshop and Seminar participants

Accredited Family Law Specialists

Firms accredited through the Quality Practice Standard

500 per week 10 | BRIEF DECEMBER 2021

The average number of members of the public helped with a referral via our "Find a Lawyer" service

250+

65

3,846

Members shaped the Law Society’s advocacy by sitting on committees and contributing submissions to Council

Policy paper submissions produced on key issues affecting the profession and advocating on rule of law

Total visitors to the Old Court House Law Museum

Supported Future

The voice and mentor for young practitioners Partnerships and collaborations which add value

625

Mock Trial student participants

80 56 78

Mock trials School teams competed Legal Professionals volunteered 264 Students gained WACE accreditation

$2,710,000

68

Grants approved by the Attorney General from the Public Purposes Trust

Lawyers paired with mentors in our mentoring program

2,647

398

Educated on the legal profession by participating in the Francis Burt Law Education Programme

Students from metro and regional schools participated in the Lawyer Visits to Schools Network

11

a night to remember

12 | BRIEF DECEMBER 2021

Event Wrap-up

After a lengthy 6 year hiatus, the Law Society of Western Australia’s Young Lawyers Committee hosted a black tie ball on 12 November 2021.

Close to 500 members and supporters of the legal profession attended the prestigious event, which was held in the glamourous Optus Stadium River View Rooms. The electric atmosphere sparked celebration, dancing and festivity.

The evening was hosted by committee member Lyle Swithenbank who introduced the committee chair,

Christopher Burch, who gave an address on behalf of the committee, and Her Honour Judge Barone SC who provided a highly entertaining keynote speech.

The dance floor was then lit by DJ Wildflower’s beats.

Thank you to the Platinum Sponsor The College of Law and Gold Sponsors KBE Legal Talent, RSM Australia and Hall & Wilcox for supporting this event.

Demi Swain, Deputy Chair, Young Lawyers Committee

Young Lawyers Committee Chair Chris Burch welcoming all to a marvellous evening

13

Event Wrap-up: Young Lawyers Black Tie Ball

Platinum Sponsor, The College of Law and guests

Guests enjoying the dinner

Law Society staff

Gold Sponsor, KBE Legal Talent and guests

14 | BRIEF DECEMBER 2021

Gold Sponsor, Hall & Wilcox

Gold Sponsor, RSM Australia

The Law Society’s Young Lawyers Committee

Bennett + Co and guests

15

human

rights

in focus

16 | BRIEF DECEMBER 2021

In this two-edition special feature, we delve into the constantly evolving arena of human rights and the important role legal professionals play in shaping the ways our laws protect those in our community. Part 2 will feature in February 2022.

Special Foreword

by Greg McIntyre SC Barrister at Michael Kirby Chambers, Executive Member of the Law Council of Australia, Past President of the Law Society of Western Australia In Koowarta v Bjelke Petersen1 Sir Ninian Stephen, considering the application of the International Convention on the Elimination of All Forms of Racial Discrimination as a source of legislative power for the Racial Discrimination Act 1975 (Cth) (the first instance of an Australian Parliament enacting into domestic law rights and obligations set out in a United Nations Convention) said: The present international regime for the protection of human rights finds its origin in the Charter of the United Nations. Prominent in the opening recitals of the Charter is a re-affirmation of “faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women”…

As Prof Croucher, President of the Australian Human Rights Commission, highlights in her article in this Human Rights Special Feature, in 1948 Australia was a founding signatory of the Universal Declaration of Human Rights. It spelt out an agreed set of universal fundamental human rights.

Australia has reinforced its adherence

to those obligations by signing up to and ratifying the International Covenant on Civil and Political Rights 1976, International Covenant on Economic, Social and Cultural Rights 1976 and Declaration on the Rights of Indigenous Peoples 2007, endorsed by Australia in 2009.

The Honourable Michael Kirby in the McPhee Memorial Oration to the Diversity Council of Australia described the universal values enshrined in international Human rights instruments as ‘setting a standard by which to create and judge new laws and their impact on human rights’ and ‘a hook on which to hang arguments of inequality and injustice.’2

Feature Contents 18

An Interview with Lorraine Finlay, Human Rights Commissioner

21

2021 Sir Ronald Wilson Lecture presented by Emeritus Professor Rosalind Croucher AM, President, Australian Human Rights Commission

24

The Humanitarian Crisis in Afghanistan by the Law Council of Australia

25

Rise of the Business and Human Rights Agenda by Dr Fiona McGaughey, UWA Law School

28

Police Cautions and Admissibility of Evidence

by Aidan Ricciardo, Lecturer at the UWA Law School

In 2007, the Government of Western Australia commissioned an extensive community consultation to consider the introduction of a WA Human Rights Act. An independent consultation committee led by Fred Chaney AO held state-wide public forums and received over 300 written submissions.

Following this consultation, and consistent with the WA community’s strong support, the committee issued

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

17

Human Rights Special Feature Dr McGaughy points out, that the top five products imported by the G20 at risk of modern slavery include laptops, which are in daily use by most Western Australians. a comprehensive report recommending that WA introduce a Human Rights Act with strong legal protections for a broad range of civil and political rights as well as economic, social and cultural rights. The report3 included a draft Human Rights Act, which adopted a ‘dialogue’ model which would preserve the supremacy of Parliament, so that the Judiciary would not have the power to override the intent of Parliament. No WA Government has since proceeded with enacting a WA Human Rights Act. Victoria, the ACT and Queensland have now passed Human Rights Acts. It is high time that Western Australia revisited the work done 14 years ago and joined those jurisdictions in Australia who have such legislation operating in fulfilment of the entitlement which all citizens have to the observations of fundamental human rights.

The impetus to do that is, as the Human Rights Commissioner Lorraine Finlay says in her interview in this Human Rights Special Feature, that “at the centre of every human rights issue are individual people whose lives are impacted [who are] free and equal in dignity and rights”. They are entitled to be enabled to have recourse to a comprehensive legislative framework protecting their fundamental human rights.

Prof Croucher reminds us, in her piece in this Special Feature, of the Bringing Them Home report of Western Australian Commissioners, Sir Ronald Wilson and Prof Mick Dodson, which pointed out that the forced removal of Aboriginal children in Australia breached the Genocide Convention 1949 and amounted to the considerable suffering of the ‘Stolen Generations’. Australia is a signatory to that Convention, in which “genocide” is defined to include “forcible transfer of 18 | BRIEF DECEMBER 2021

children from a racial, ethnic or national group to another group with the intention of destroying that group”. The Stolen Generations were referenced in Collard v State of Western Australia.4 It should be pointed out that Justice Pritchard did not make any finding in relation to a ‘Stolen Generation’ in her primary judgment, because the direct facts she was dealing with were of one family and she found against the argument of breach of the State’s fiduciary duty argued in that case.

However, the case was selected to be supported by the Aboriginal Legal Service of WA and conducted as a ‘test case’ on the ‘Stolen Generations’ (with the pro bono legal assistance of Lavan Legal) from the many instances of Aboriginal children removed from their families by the State held in the ALSWA catalogue of cases. This was referred to by Justice Pritchard in her Costs decision at [28]. Justice Pritchard refers to the ‘Stolen Generation Inquiry’ at [102] and [1058] of her primary judgement on liability. Members of the Collard family had, prior to the commencement of the case in the Supreme Court received payments from the State under its Redress Scheme, which was established by the State Government ‘to acknowledge and apologise to adults who, as children, were abused and/or neglected while they were in the care of the State. It ran from 2008 to 31 December 2011.’5 Some members of the Stolen Generations were directed into indentured service6 one of the practices now captured under the Modern Slavery Act 2018 (Cth) (MSA), discussed in this Special Feature by Dr Fiona McGaughy, along with Magnitsky laws.

The relevance of the Procurement Act 2020 (WA), referred to by Dr McGaughy, which allows for the termination of government contracts with those who do not comply with the MSA is brought home when one considers, as Dr McGaughy points out, that the top five products imported by the G20 at risk of modern slavery include laptops, which are in daily use by most Western Australians.

The discussion of the Magnitsky laws has some immediate currency. The Parliament on 2 December 2021 passed the Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic

Sanctions) Bill 2021 (Magnitsky Act). The Magnitsky Act amends the Autonomous Sanctions Act 2011 (Cth) to expand Australia’s autonomous sanctions framework to expressly allow for targeted sanctions to be imposed on foreign individuals and entities to address, amongst other things, ‘serious violations or serious abuses of human rights’ and ‘activities undermining good governance or the rule of law, including serious corruption’.

The Law Council of Australia in its article on the Humanitarian Crisis in Afghanistan reminds us that Australia has international obligations under the Refugee Convention, to which Australia is a signatory, to provide asylum to Afghans who seek it and Australia has a particular moral obligation in relation to those who worked to support Australia’s defence and humanitarian work in Afghanistan and to defend and uphold the rule of law, and notes the particular risk posed to women participating in the legal profession in Afghanistan.

It is an uncontroversial employment law concept that an employer has power to issue lawful and reasonable directions to employees.7 In addition, employers have a duty of care to safeguard clients and employees.8 Equally, employees have a duty to take care that acts or omissions do not adversely affect the health and safety of others.9 In that context, mandatory vaccination is arguably a justifiable limitation on the exercise of other rights and freedoms.

The non-derogable human rights recognised in international law comprise: right to life; freedom from torture, cruel, inhumane or degrading treatment or punishment; freedom from medical or scientific experimentation without free consent; freedom from slavery or involuntary servitude; right not be imprisoned for contractual debt; right not to be convicted or sentenced to a heavier penalty by virtue of retroactive criminal legislation;

humanrightsinfocus Australia has international obligations under the Refugee Convention, to which Australia is a signatory, to provide asylum to Afghans who seek it

right to recognition as a person before the law; and freedom of thought, conscience and religion.

It is arguable, in my view, that the scientific work and legal approvals processes for vaccines in relation to the current COVID-19 pandemic take their administration to the public beyond any suggestion of ‘experimentation’.

Mandatory vaccination, in response to the COVID-19 pandemic, is consistent with the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights.10 To the extent that mandatory vaccination for COVID-19 might be said to infringe any freedom, in my view, any vaccination requirement may be legitimately mandated in accordance with the Siracusa Principles, in that it is: in the interests of a legitimate objective of general interest, i.e., a public emergency which threatens the life of a Nation; provided for and carried out in accordance with the law;

strictly necessary in a democratic society to achieve the objective of general interest; there are no less intrusive and restrictive means to achieve the same goal; and the restriction is not imposed arbitrarily.

The Full Bench of the Fair Work Commission, on 3 December 2021 in CFMEU v Mt Arthur Coal Pty Ltd,11 concluded that compliance with an employer’s consultation obligations under work health and safety laws, employment contracts and other industrial instruments and a robust risk assessment is a necessary pre-requisite to a mandatory vaccination direction to employees being found to be lawful and reasonable. The Commission did not find it necessary to determine whether the employer had complied with its obligations under the Privacy Act 1988 (Cth) in relation to bodily integrity.

Ultimately human rights are about what the Court of Appeal based its decision upon in the case of Luo v The Queen12, referred to by Aidan Ricciardo in his piece on Police Cautions and

Admissibility of Evidence. The Court found that, when the accused person was being interrogated by police, he understood that he did not have to answer police questions, but, when he said he did not wish to answer any questions, the police ignored that and continued to interrogate him. The Court found that the interrogation breached the Anunga guidelines and that it lacked ‘fairness’ and ‘failed to respect the appellant’s choice to stay silent’.

End notes 1 [1982] HCA 27; (1982) 153 CLR 168, at [27].

2 Australia must ‘quickly’ consider adopting a Bill of Rights: Michael Kirby - Lawyers Weekly.

3 Report of the Consultation Committee for a Proposed WA Human Rights Act - November 2007 (d3n8a8pro7vhmx.cloudfront.net) 4 [2013] WASC 455, at [102] and [1058] and [2013] WASC 455(S), at [28] 5 https://www.findandconnect.gov.au/guide/wa/WE00505 6 https://www.sbs.com.au/nitv/10-things-you-shouldknow-about-slavery-in-australia/2e1e21d2-6a9a-43be9ee2-f0eecf33dcd7.

7 R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601, 621-622.

8 Work Health and Safety Act 2011 (Cth), s 19(1).

9 Work Health and Safety Act 2011 (Cth), s 28.

10 Siracusa-principles-ICCPR-legal-submission-1985-eng. pdf (icj.org) 11 [2021] FWCFB 6059.

12 [2020] WASCA 184 at [54] and [76]-[78]

19

Human Rights Special Feature The Inside Story: An Interview with Human Rights Commissioner

Lorraine Finlay

L

orraine Finlay commenced her term as Human Rights Commissioner on 22 November 2021. Lorraine was a member of the Law Society for many years, until she moved to Canberra.

Prior to joining the Commission, Lorraine worked as a lawyer and academic specialising in human rights and public law.

Her most recent roles have been as the Senior Human Trafficking Specialist with the Australian Mission to ASEAN, and as a law lecturer at Murdoch University, for which she has received a number of awards including Law Lecturer of the Year.

Lorraine has also been actively involved in a variety of community organisations, most recently as a member of the Executive Committee of the National Council of Women (WA) from 2011-2019. She has been awarded both the Centenary Medal and WA Law Society Youth Community Service Award for her volunteer work.

She kindly took time out to answer a few questions relating to her career and important new role as Human Rights Commissioner.

How did you become interested in law and in particular human rights?

I’ve wanted to be a lawyer ever since I was a child. While I don’t come from a family of lawyers, I do come from a family that always encourages community involvement and service. Becoming a lawyer seemed to be a way of combining my love of learning and reading, my curiosity for exploring and debating ideas, and my passion for people and community.

Given that my interest in law was really based around wanting to help people, I naturally gravitated towards areas of law that had a human rights aspect to them. My legal career hasn’t always been linear, but it has always been guided by wanting to pursue opportunities that are people-focused and allow me to work on issues that I feel passionately about.

20 | BRIEF DECEMBER 2021

What motivated you to achieve so much in your career so far?

I’ve always been very aware of how fortunate I am to have had the opportunities that I have had. My grandfather has been a significant influence here. He originally wanted to be a lawyer, but had to leave school at an early age and never got to realise that dream. He has supported me every step of the way, but is also a constant reminder to me not to take opportunities for granted. John F. Kennedy famously said (drawing from Luke 12:48) that “For of those to whom much is given, much is required”. That has always struck a chord with me, and I have always been strongly motivated by the concept of community service and trying to make a positive difference.

As Human Rights Commissioner, you will be responsible for protecting and promoting traditional rights and freedoms in Australia. What do you think will be the hardest challenges of your new role?

I think the hardest challenge of the role is the fact that there are no abstract issues.

At the centre of every single human rights issue are individual people whose lives are being impacted. As lawyers we’re trained to approach the law dispassionately and objectively, but as Human Rights Commissioner it is important not to lose sight of the fact that people are at the very heart of the job.

What would you like to achieve during your tenure?

There are a number of specific issues that I am keen to focus on – addressing human rights issues arising in the context of the ongoing COVID-19 pandemic, ensuring Australia does even more to tackle modern slavery and human trafficking, and focusing on fundamental freedoms such as freedom of speech, religion, movement and association.

But what I would really like to achieve over my term is to strengthen the national conversation around rights and freedoms

and to encourage people to become more engaged with these issues. In my view, the national conversation has become too focused on government, with people ignoring the role that they themselves need to play in preserving and strengthening rights and freedoms. We need to broaden the human rights conversation so that we aren’t just talking about what government needs to do to protect human rights, or immediately defaulting to thinking that passing a law is the only way to fix a problem. Instead we need to be talking about what we can all be doing as individuals and in our communities.

Ultimately our rights and freedoms are too important to be left solely to government.

We all need to take responsibility for strengthening and protecting human rights in Australia. If I can help to broaden the national conversation in this way that would then have a positive impact on a whole range of specific human rights issues.

Since you began practice, what change in the law/legal profession has been the most positive?

The most profound change has been the rapid development of technology. When I first started at Law School most students still took notes using a pad and paper, lectures were never recorded, and searchable electronic legal databases were non-existent.

The way that technology has transformed both the study and practice of law has been overwhelmingly positive, particularly through making them more accessible and flexible.

There are likely to be further long-term developments on this front as a result of the pandemic, with some of the remote and flexible working arrangements adopted out of necessity likely to have a continuing place in the post-pandemic workplace.

Is there anything you would like to change about the legal profession?

An issue that is going to need a renewed focus as we emerge from the pandemic is mental health and well-being within the legal profession. There has been a lot of excellent research and work done in recent years that

humanrightsinfocus has recognised the critical importance of this issue, and that has helped reduce the stigma that has sometimes attached to these challenges. Unfortunately the pandemic has exacerbated many of the vulnerability factors that have previously been identified, particularly with respect to law students and young lawyers. Prioritising mental health and well-being as we emerge from the pandemic is going to be important for each of us as individuals, but it is also important for the legal profession more broadly to recognise the challenges and prioritise providing appropriate support.

How has the pandemic altered human rights discourse in Australia?

For many Australians freedom has been something that we have been able to largely take for granted in our daily lives up until recently. The pandemic has changed this, with the pandemic-related lock-downs and restrictions giving many of us for the first time a direct and personal understanding of what it means to have our rights and freedoms restricted. I am hopeful that we might emerge from the pandemic with a stronger appreciation of just how important rights and freedoms are in our daily lives, and a renewed commitment to strengthening human rights in Australia.

What do you say to theorists who doubt the existence of human rights?

I fundamentally disagree with them! It is certainly true that there are far too many examples (both throughout history and in the present day) of us failing to live up to human rights ideals. I also worry that the idea of universal human rights is undermined by broadening the concept to the point where it becomes essentially meaningless. But at the very core of human rights is the idea that all human beings are born free and equal in dignity and rights. Everything else stems from that. Which means that theorists who doubt the existence of human rights are really doubting the inherent dignity of all human beings. Nelson Mandela expressed the importance of this perfectly when he said that “[t]o deny people their human rights is to challenge their very humanity”.

What are some of your favourite books?

I absolutely love reading so picking just one or two favourite books is almost impossible.

My favourite part-time job while I was at University was working at Dymocks in the Hay Street mall – being in a job where I was paid to talk to people about books and encouraged to read as widely as possible was pretty amazing!

Part of what I love about reading is the use of language to inspire your imagination. Two

...what I would really like to achieve over my term is to strengthen the national conversation around rights and freedoms and to encourage people to become more engaged with these issues. of my favourite authors – Kazuo Ishiguro and Trent Dalton – have very different styles, but are my favourites because of the simply beautiful way that they each write and use language. Kazuo Ishiguro somehow conveys depths of meaning through restrained and understated language, while the lyrical way that Trent Dalton writes is magical. I’ve just finished reading Klara and the Sun, and Love Stories is right at the top of my Christmas reading list.

I’ve also got two young children and probably spend more time reading children’s books than adult literature! We did a lot of family reading during lockdown – we’ve just finished the latest book in The Bad Guys series and are huge fans of the Harry Potter books.

Seeing my kids develop a love of reading, and sharing my childhood favourites with them, is really special.

21

GAIN PRACTICAL LEGAL TRAINING WITH CURTIN LAW SCHOOL

Curtin’s Practical Legal Training program has a strong emphasis on technical legal skill development, with practical training conducted through the John Curtin Law Clinic.

Taught by experienced legal practitioners with extensive legal experience, the program is highly flexible, delivered through a blend of face-to-face teaching and online self-directed learning.

Find out more about the Practical Legal Training program or contact the Curtin Law School.

CRICOS Provider Code 00301J 5120FBL

humanrightsinfocus 2021 Sir Ronald Wilson Lecture The Perils of Independence: The Australian Human Rights Commission’s role in protecting human rights in Australia Abstract The Bringing Them Home inquiry and report, which investigated the forced removal of Aboriginal children from their families and communities, was Sir Ronald Wilson’s ‘blowtorch moment’. It led to conclusions that the removal of children could be considered ‘genocide’ and made recommendations for an apology and for reparations. The report is of continuing influence, although the reaction of government at the time was very negative.

However, over time, the Bringing Them Home inquiry and its report demonstrate the power of independence and the ability of the Australian Human Rights Commission to contribute to change over a long horizon.

It illustrates Sir Ronald Wilson’s role as President of the Commission and also the Commission’s role in protecting human rights in Australia, which, to this day, remains the only country in the Commonwealth of Nations not to have a Charter or Human Rights Act.

On 7 February 1990, Sir Ronald Wilson was appointed President of the Human Rights and Equal Opportunity Commission (HREOC) - now the Australian Human Rights Commission - under the Labor Government led by the Hon Robert Hawke MP. He was 67 years of age, charismatic, ‘universally liked and admired’ with a distinguished career in the judiciary behind him. His appointment was suggested by some as ‘calculated to save the Commission from abolition if the Coalition did gain power’.1 At the beginning of his time as HREOC President, Wilson was described as ‘circumspect’, and not wanting to embroil the Commission in political controversy.

But, in the ensuing years, he was to become more forthright in expressing his views.

In September 1991, he gave voice to some of his thoughts about human rights in a lecture, the title of which was framed as a question: ‘Human Dignity for All: A Pie in the Sky?’

Presented by Emeritus Professor Rosalind Croucher AM President, Australian Human Rights Commission Wednesday, 4 August 2021

Presented in Exclusive Partnership with Wilson referred to the ‘respectable body of “law”’ represented by the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights— which together form the ‘International Bill of Human Rights’—and noted that a Declaration on the Rights of Indigenous Peoples was in the process of preparation at the time. All of this, he said, was ‘designed to encourage members of the UN to fulfil the hopes of 1945’,2 when the founding document of the UN, the UN Charter, was signed.

However, 45 years on from the signing of the Charter, little had been done to enact the rights and freedoms protected by those instruments into Australian law. To Wilson, it was unacceptable for Australia to ratify international human rights instruments and then only partially enforce them. He considered that it was his obligation in his role as President of HREOC to advocate for human rights, particularly for the marginalised and disadvantaged sections of the community.3 On 11 May 1995, the then AttorneyGeneral, the Hon Michael Lavarch MP, under the Labor Government of the Hon Paul Keating MP, referred to the Commission an inquiry into the forcible removal of Aboriginal and Torres Strait Islander children from their families.

It was two and half years after Prime Minister Paul Keating had said in an address at Redfern, to launch the UN International Year of the World’s Indigenous Peoples, that ‘We took the children from their mothers’.

The inquiry was led by Wilson and Mick Dodson, the Aboriginal and Torres Strait

Islander Social Justice Commissioner. It led to the report, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (April 1997).

The title for the report came from the evidence of Aboriginal poet, James Miller, at the inquiry hearings in Sydney, who said, ‘We need to bring them home’.4 The inquiry was to be Wilson’s ‘blowtorch moment’.

Blowtorch moment In my first formal speech in my role as President of the Australian Human Rights Commission, I coined this phrase. I said: Having a ‘Devil’s Advocate’ for human rights is a healthy, indeed necessary, thing in the context of the promotion and protection of those rights.

Even if it means we should expect criticism—for calling out Government against the commitments made to the international community in signing up to the international treaties that set the benchmark for human rights. Even if it means that Government see us more of the Devil’s Blowtorch than the Devil’s Advocate.5 The Bringing Them Home inquiry hearings were a life-changing experience for Wilson.

In the biography, Sir Ronald Wilson: A matter of conscience, Antonio Buti says: He had heard story after story of sorrow and pain that had convinced him a major injustice had been done that needed to be understood by all Australians and measures taken to rectify the historical injustices.

He, along with the other HREOC commissioners, believed that they

23

Human Rights Special Feature had been trusted with the stories, and had to honour that trust. This meant ensuring that the report presented the story and the case for justice, no matter how uncomfortable it would be for White Australia.6 Among the recommendations of the Report were that an apology should be given for separation, to be participated in

by Parliaments and churches, as well as restitution, rehabilitation and monetary compensation.7 Another recommendation was for a national ‘Sorry Day’. The Report also concluded that The Australian practice of indigenous child removal involved both systematic racial discrimination and genocide as defined by international law. Yet it continued to be practised as official policy long after being clearly prohibited by treaties to which Australia had voluntarily subscribed.8 The definition of genocide includes the forcible transfer of children from a racial, ethnic or national group to another group with the intention of destroying that group.9 Within the Commission, the question of whether to use the ‘genocide’ label, generated a ‘significant debate’.10 Mick Dodson was not so sure about the wisdom of using this label.11 As Buti explained: Dodson worried about the political ramifications of such a finding. His concerns were prophetic. However, after listening to Wilson’s arguments he was persuaded to agree to the genocide finding, as were the other commissioners.12 The ‘crux of the argument’ was that the removal policy’s intention was ‘to destroy the Aboriginal race by assimilating the next generation of Aborigines into mainstream European society and culture. The policies intended to assimilate Aboriginal children into White society, so that they would lose their “Aboriginality”.’13 The recommendation was a symbolic one: that the Commonwealth should legislate to implement fully in domestic law the Convention on the Protection and Punishment of the Crime of Genocide (Genocide Convention), which Australia had ratified in July 1949.14 In his Sir Ronald Wilson Lecture, Robert Nicholson said that, ‘These and other recommendations entered the political realm and became the subject of intense debate and, by some, intense anger’.15

Shooting the messenger Where Terms of Reference are provided by an Attorney-General, as distinct from an inquiry at the initiative of the

24 | BRIEF DECEMBER 2021

Commission itself, it may well be that governments change in the middle, so that the Attorney, and Government, that commissioned the inquiry, are not the ones to receive the result. This was the case for the Bringing Them Home report.

On 5 April 1997 the report was delivered to then Attorney-General, the Hon Daryl Williams AM QC MP, of the Coalition Government of John Howard. The political environment could hardly have been more different than in 1992, when Paul Keating made his Redfern speech.

There were other elements in the environment: Pauline Hanson was elected in 1996; the Wik case was decided on 23 December 1996,16 the High Court holding that native title could coexist on pastoral leases, and the Government’s ‘Ten Point Plan’ was announced late in April 1997, watering down native title rights, in response.17 This was not an environment to be receptive of the Bringing Them Home report, let alone a finding of ‘genocide’. As Buti observed: It was a report the government did not want, about an inquiry it did not call, at a time that could hardly have been less welcome.18 On 20 May, the Sydney Morning Herald ran a front-page story referring to ‘unnamed government sources’ condemning the report, even though it had not yet been tabled. Margo Kingston also wrote about the attempt to discredit Wilson, in an article entitled, ‘Report that Won’t Stay under the Carpet’. Kingston referred to the advice of ‘Yes Minister’s’ Sir Humphrey Appleby to his MP, Jim Hacker, about how to suppress an inconvenient official report: ‘Discredit the man who produced the report.’19 In terms of Sir Humphrey’s strategy of ‘discrediting the man’, however, Kingston commented that the Government had a problem: [He] is a former Liberal-appointed High Court judge, widely respected and a man near retirement. Sir Humphrey’s lines of attack—that the inquirer harboured a grudge against the government, was a publicity seeker or was trying to get a knighthood—were not available.20 A Government press statement was made on 21 May, referring to aspects of the as-yet-untabled report. The statement attacked the report’s genocide finding and dismissed any suggestion of awarding compensation.21 This is a classic case of ‘shooting the messenger’.

On 26 May, the opening day of the Reconciliation Conference in Melbourne, the report was tabled and Wilson could now speak about it. In an ABC radio

In the absence of a Human Rights Act, the Commission has once again become the Devil’s Blowtorch.

interview he said that he and those involved in the inquiry would continue to ‘fight’ for justice for the ‘stolen generations’, irrespective of the Commonwealth’s response.

He also fervently defended the claim of genocide. He maintained that the removal process came within the definition of genocide in the UN Genocide Convention. He reiterated his determination to fight for the recognition of the plight of the ‘stolen generations’, saying: ‘Governments come and go’, and ‘[we] are on a long haul perhaps but we are heading for reconciliation’.22 What Wilson was doing was using international law principles in the domestic context—his brief under his statutory mandate. But the messenger was still shot.

The Commission’s Annual Report for 1997–1998 shows that budget cuts, taken over a three year forward period, represented a reduction of 40% of the budget of the Commission.23 Having strong, independent, national human rights institutions is an expression of the robustness of the commitments of governments across the globe in ratifying international conventions and treaties.24 Australia was a founding supporter of the UDHR and the Charter of the United Nations itself. If you look at the seven major treaties25 Australia has committed to and their ratification, it is an equal split of

humanrightsinfocus Coalition and Labor support. It is neither a ‘Labor’ nor a ‘Coalition’ project. The commitment to respecting, protecting and fulfilling human rights, should therefore be above politics.

consider are those ‘by or behalf of the Commonwealth or an authority of the Commonwealth’, which at many times places us in an oppositional position to government.

The language of ‘human rights’ and international law

Moreover, the acts or practices may well be lawful under domestic law, but contrary to international human rights obligations.

So the Commonwealth has a clear answer to the complaints in domestic law. But in international law, that is no defence.

While the act of ratifying treaties is a government commitment to give effect to human rights in Australian law, policy and practice, 73 years on from the Declaration (and some 30 years after Wilson’s speech of 1991), little has still been done to make the rights and freedoms enshrined in these international human rights instruments directly enforceable in Australia.

When the Commission was put on a permanent footing in 1986, as HREOC, it was designed in tandem with an accompanying Australian Bill of Rights Act. The Bill was passed in the House of Representatives, but did not pass the Senate. More recently, the idea was the principal recommendation of the National Human Rights Conversation led by Fr Frank Brennan SJ, over a decade ago.26 The past President of the Law Council of Australia, Pauline Wright, in her Press Club address in 2020, also called for an Australian Bill of Rights.

While every other country in the Commonwealth of Nations has moved forward by introducing a Charter of Rights or a Human Rights Act—Australia stands alone for not having introduced such protection, at least at the federal level.

From the perspective of the Commission’s jurisdiction, it is still unfinished legal architecture. We are like a doughnut—with a hole in the middle.

International not domestic framing Even without a formal enactment of a ‘Human Rights Act’, people can bring a complaint to the Commission on the basis of the ICCPR and other rights in the instruments scheduled to our Act.27 But it is not judiciable, nor can there be enforceable remedies.

The Commission has a growing set of complaints invoking the right to return to the country and for children to enter or leave Australia for the purpose of family reunification during COVID-19.28 These complaints do not sit under the category of ‘unlawful discrimination’ in Australia’s four anti-discrimination laws, but in what we describe as our ‘human rights’ jurisdiction that links to the treaties.

For complaints that reference the international treaties, an additional challenge is that the respondent is principally the Commonwealth, because the ‘acts or practices’ that we can

When it comes to our function to consider human rights complaints, domestic law and international expectations are at loggerheads. In the absence of a Human Rights Act, the Commission has once again become the Devil’s Blowtorch.

The beauty of a Human Rights Act, and other measures that front-load rightsmindedness, is that they are expressed in the positive: affirming rights and freedoms—not just implying them—and giving a clear anchor for decision making.

It front-loads human rights thinking.

Advancing the case for a Human Rights Act and other complementary reforms is the focus of the current project that I am leading, Free and Equal: the national conversation on human rights.29

No ordinary report—no ordinary man Twenty-four years after the Bringing Them Home report was tabled, apologies have now been delivered by every Australian Parliament. Compensation schemes have been established in most Australian jurisdictions, either directly for members of the stolen generation, for the stolen wages of Aboriginal domestic workers, or for victims of institutional child sexual abuse.30 There is also now an accepted understanding, demonstrated in the language of the National Agreement on Closing the Gap,31 that the actions of the past affect the health and other outcomes of the present. The truth of what was reported in Bringing them Home is now accepted and taught in schools nationally.

As Buti remarked, ‘The furore that followed the handing down of the report would forever change [Ron’s] place in Australian history’.32 Human rights, and the Australian Human Rights Commission, needs such champions. Wilson was, as Fr Frank Brennan remarked, ‘Western Australia’s gift to the nation’.33

End notes 1 Chris Connolly and Paul Vout, ‘A New Era for the Human Rights Commission?’ 1990 (1) Polemic 20.

2 Ronald Wilson, ‘Human Dignity for All: A Pie in the Sky?’, The Mitchell Oration 1991, 3.

making it the title of the report is credited to Meredith Wilkie.

5 ‘National Human Rights Commissions — What’s the point?’, International Bar Association Section on Public and Professional Interests, IBA Conference, Sydney (12 October 2017), 9.

6 Buti, A Matter of Conscience, 324.

7 Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (April 1997), 284–94, 302–13, 415–21.

8 Bringing Them Home, 266.

9 Article II. Australia ratified the Genocide Convention on 8 July l1949.

10 Buti, A Matter of Conscience, 321. Dr Sarah Pritchard and Meredith Wilkie, staff working independently on the research and writing, both concluded that genocide was relevant to the findings and conclusions of the inquiry.

11 Buti, A Matter of Conscience, 324.

12 Buti, A Matter of Conscience, 325.

13 Buti, A Matter of Conscience, 325.

14 Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (April 1997), 292–5.

15 Nicholson, ‘Sir Ronald Wilson’, 514.

16 The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors [1996] HCA 40.

17 Buti, A Matter of Conscience, 330–331.

18 Buti, A Matter of Conscience, 330–331.

19 Buti, A Matter of Conscience, 332.

20 Buti, A Matter of Conscience, 333. Sydney Morning Herald, 20 May 1997.

21 Buti, A Matter of Conscience, 334.

22 Buti, A Matter of Conscience, 337.

23 Human Rights and Equal Opportunity Commission, Annual Report 1997–1998, 12–13.

24 There is a process of accreditation for NHRIs, reflecting the centrality of the idea of independence, and principles concerning appointment and tenure of Commissioners and adequate funding to be able to operate independently of government, and not be subject to financial control: Paris Principles: https:// humanrights.gov.au/our-work/commission-general/ principles-relating-status-national-institutions-parisprinciples-human/ 25 The International Covenant on Civil and Political Rightsexternal site (ICCPR); the International Covenant on Economic, Social and Cultural Rights - external site (ICESCR); the International Convention on the Elimination of All Forms of Racial Discrimination external site (CERD); the Convention on the Elimination of All Forms of Discrimination against Women - external site (CEDAW); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the Convention on the Rights of the Child - external site (CRC); and the Convention on the Rights of Persons with Disabilities (CRPD).

26 National Human Rights Consultation (Report, September 2009).

27 Most notably, however, these instruments do not include the ICESCR. 28 For individuals alone – Art 12 ICCPR; for family groups – Art 12,17 and 23 of ICCPR; and family groups with children, all of the above plus Arts 3, 8, and 10 of the CRC. 29 In opening Law Week in Perth in 2019 I spoke about my Damascene journey of acceptance of the need for an Australian Human Rights Act, which was extracted and published in this Journal: ‘Law, Lawyers and Human Rights’ (2019) 46(5) Brief 22.

30 On 5 August 2021, the day after delivering this Lecture, the Prime Minister announced the new Closing the Gap implementation plan would include a $378 million new redress scheme for Stolen Generations survivors. PM to unveil $1 billion Closing the Gap Implementation plan (news.com.au) 31 https://www.closingthegap.gov.au/national-agreement

3 Buti, A Matter of Conscience, 293.

32 Buti, A Matter of Conscience, 330.

4 Buti, A Matter of Conscience, 325. The suggestion for

33 Brennan, ‘The Law and Politics of Human Rights’, 33.

25

Human Rights Special Feature The Humanitarian Crisis in Afghanistan by the Law Council of Australia

The world watched on in shock as news and images were beamed from Kabul Airport in August of thousands of people trying to flee Afghanistan, of plane holds crammed full with hundreds of evacuees, and of the tragic loss of lives.

The fall of Afghanistan’s Government to the Taliban and the withdrawal of NATO Allied Forces, including Australian troops, resulted in a humanitarian crisis within Afghanistan, a significant internal displacement of Afghans, and reports of violence directed at Hazara Afghans. It has also produced a significant influx of Afghan asylum seekers to neighbouring countries and over 100,000 humanitarian visa applications made to Australia’s Minister for Home Affairs.

As events unfolded, the Law Council of Australia called on the Australian Government to urgently assist Australians at risk along with Afghans who supported Australia’s defence and humanitarian work in the country.

It also held serious concerns for those who worked to defend and uphold the rule of law, and to support and establish democratic and justice institutions over the past twenty years, including in particular women participating in the legal profession.

On 1 September 2021, after the publicly indicated completion of rescue efforts, the Senate Foreign Affairs, Defence and Trade References Committee was charged with undertaking an inquiry into a range of issues associated with Australia’s engagement in Afghanistan.

The Law Council welcomed the opportunity to contribute to this inquiry, to reiterate and detail its views and recommendations and provide evidence at a public hearing.

The Law Council’s submission to the Senate Inquiry focusses on Australia’s obligations and actions now, rather than past events such as Australia’s military engagement in the first place and its planning for withdrawal.

Australia has international obligations in relation to Afghans who have already sought asylum in Australia and in relation to Afghans who may seek asylum in the future. Every person has the right to seek asylum and Australia is obliged to provide a fair, clear legal process for determining of claims made to it, and durable solutions for those found to be owed protection, which avoid discrimination which is based on a person’s mode of arrival. Australia has also committed

26 | BRIEF DECEMBER 2021

to multilateral engagement, through United Nations processes, to support those Afghans who now seek protection from the international community more generally.

Australia has already taken steps which reflect an acknowledgement of many of these obligations and responsibilities.

These steps are welcome, but the Law Council considers that more can be done.

Specifically, the Law Council further recommends: The Australian Government ensure that it gives effect to all of its international obligations in relation to Afghan asylum seekers, with respect to both those who may seek asylum as a result of recent events, and those who have already sought protection or been recognised as being owed protection prior to these events; Extending the range of persons who qualify for protection by virtue of the assistance they or a family member provided to Australian Government agencies in Afghanistan; The Australian Government commit to substantially increasing the number of humanitarian visa places allocated to Afghans (currently 3,000) beyond the current humanitarian programme ceiling of 13,750 places annually over the next three years; Consideration be given to providing a contribution to the United Nations High Commissioner for Refugees’ (UNHCR) Afghanistan Situation Funding as part of its response to the humanitarian response to the influx of Afghan asylum seekers consistent with the commitments Australia made as a member of the United Nations General Assembly (UN GA) in the New York Declaration for Refugees and Migrants and the Global Compact on Refugees adopted by the UN GA in 2016; Urgently review its regional resettlement policies with a view to facilitating the expeditious resettlement of Afghan refugees registered with the UNHCR in Indonesia and Malaysia; The Department of Home Affairs makes a number of improvements to its systems for receiving, acknowledging and processing protection claims, and for undertaking identity checks; The Australian Government consider contributing to the international community’s effort to monitor possible human rights abuses in Afghanistan in light of the appointment of a special rapporteur to monitor the human rights situation there; The Minister for Home Affairs and the Department expedite the processes required to consider all Afghan protection visa applicants in Australia for possible grant;

The Minister for Home Affairs and the Department provide clarity to those Afghans who were granted a temporary Subclass 449 (Humanitarian Stay) visa to facilitate their expeditious departure from Afghanistan, but who are unable to apply for a visa once in Australia until the Minister lifts the visa application bar which applies to them. These Afghans should be permitted to apply for a permanent protection visa; Afghans who hold temporary protection visas either be transferred to permanent protection visas or be given access to a full range of social services and the right to sponsor family to migrate to Australia; The Australian Government identify opportunities to protect, assist and support Afghan nationals who have worked to defend and uphold the rule of law and to support and establish democratic and justice institutions over the past twenty years, and who are now at grave risk as a result of this work; The Australian Government urgently restore funding so that free legal assistance and representation is available to all asylum seekers in need, or at least provide dedicated additional funding to ensure the large number of Afghans seeking asylum from Australia have such assistance, including those whose claims may need to be revisited.

The Law Council was pleased to be able to speak directly with Committee Members at a public hearing on 8 September 2021. During this hearing, the Law Council’s spokespeople highlighted the vital need for a specific increase in places allocated to Afghans within the humanitarian program.

Senators were particularly interested in the Law Council’s insights on the number of people seeking visas and accessing assistance from the Australian legal profession and how challenges relating to identification should be addressed.

In response to this questioning, the Law Council provided a supplementary submission.

Reaching out to the profession to gather this information, the Law Council was overwhelmed and moved by the stories of urgent and increased demand, and a commitment to provide assistance in any way possible. Firms across the country are dedicating substantial resources to provide pro bono services to thousands of asylum seekers.

On its Migration Law website, the Law Council has established a referral point to assist people impacted by the crisis in Afghanistan who are seeking legal services.

The humanitarian crisis has far from passed, and the Law Council will continue to engage and work with Government and to advocate for those who need and deserve Australia’s gratitude, compassion and welcome.

humanrightsinfocus Rise of the Business and Human Rights Agenda

by Dr Fiona McGaughey, UWA Law School Dr Fiona McGaughey teaches international human rights law at UWA and was co-founder of UWA’s Modern Slavery Research Cluster. She has run CPD on Modern Slavery and is part of a team of researchers funded under the National Action Plan to Combat Modern Slavery 2020-25 Grant Programme on the project: ‘Improving the Regulation of Modern Slavery and Access to Remedy. Learning from Experience’.

M

any will have noticed the increased focus on ESG – environmental and social governance – in recent years.

Corporations are under increasing scrutiny when it comes to their performance in this area, with consumers, investors and others putting pressure on large business to do better. Regulators are also increasing scrutiny and there may be further developments following recommendations in the Australian Law Reform Commission’s (‘ALRC’) 2020 Corporate Criminal Responsibility report.1

The introduction of the Modern Slavery Act 2018 (Cth) (MSA) was a significant development for the business and human rights agenda. It introduces a mandatory reporting requirement whereby businesses, not-for-profits, and Commonwealth government entities with an annual turnover of $100 million or more must publish an annual statement. These statements are then available for public scrutiny on the government’s repository: https://modernslaveryregister.gov.au/.

This scrutiny is actually critical for the current MSA regulatory model which lacks penalties for non-compliance but works on the assumption that civil society, investors, academics and the media will monitor business performance in this regard.2 In terms of content, statements must include information on the reporting entity’s structures, operations and supply chains, and on what they are doing to assess and address the risks of modern slavery in their operations and supply chains, and the operations and supply chains of any entities they own or control (Section 16).

From 2020, reporting entities began to publish their first statements under the MSA and analysis of compliance with the Act and quality of the statements is emerging in commentary and scholarship,3 with further extensive research underway by both civil society and academia. Under Section 6 of the MSA, businesses with a lower annual turnover may report voluntarily and at time of writing, 322 voluntary statements have been submitted.

In this piece, I discuss the MSA within the broader context of global and Australian developments in the area of business and human rights.

What is Modern Slavery?

Modern slavery is an egregious human rights violation and according to the Global Slavery Index produced by the Walk Free Foundation (Andrew Forrest’s anti-slavery NGO), there are an estimated 40.3 million people in situations of modern slavery worldwide.4 Modern slavery is defined as ‘an umbrella term used to describe a number of crimes including, but not limited to, human trafficking, forced labour, sexual slavery, child labour and trafficking, domestic servitude, forced marriage, bonded labour including debt bondage, slavery and other slavery-like practices’.5 Alongside the corporate reporting regime, acts of modern slavery remain crimes under sections 270-271 of the Criminal Code Act 1995 (Cth). However, prosecutions for such offences are extremely low for a variety of reasons. Cases reported within Australia include crimes such as sex trafficking,6 forced labour (e.g. in restaurants or the agriculture or horticulture industries),7 and servitude (e.g within a call centre operation).8

Some modern slavery-type offences are often inherently ‘business’ related in nature. They can involve forcing, deceiving or severely exploiting someone for the perpetrator’s economic gain. Walk Free estimates that there are 24.9 million people worldwide in forced labour, which means that the issue has a particular relevance to businesses. Under the MSA then, Australian businesses are tasked with identifying where risks of modern slavery might lie within their operations and supply chains and reporting on how they address these. The Act is silent on how many tiers of the supply chain should be subject to risk analysis. My research has found that some reporting entities outsource their risk analysis to consultants.9 Others develop in-house skills using wellestablished datasets from the International Labor Organization, Walk Free and the US Trafficking in Persons report, for example. There are clear indicators of risk; for example, at a generic level, these can be geographical and industry based.

According to the Global Slavery Index, the top five products imported by the G20, at risk of modern slavery are laptops, garments, fish, cocoa, and sugarcane.10 Globally, the top 10 countries with the highest prevalence of modern slavery are North Korea, Eritrea, Burundi, the Central African Republic, Afghanistan Mauritania, South Sudan, Pakistan, Cambodia and Iran.11 It is widely accepted that modern slavery will exist in many, if not all, supply chains, or ‘global value chains’ at some level. Business operations and supply chains are often geographically dispersed, straddling multiple jurisdictions, and can be opaque and difficult to navigate.

The global reach of multinational

27

Human Rights Special Feature A further incentive for businesses to increase their human rights efforts is that it could be required in future to qualify for government tenders. In 2020, the ALRC recommended ‘[t]he Australian Government, together with state and territory governments, should develop a national debarment regime’.26. corporations means that they may operate in jurisdictions in which human rights violations are prevalent, including at the hands of governments some of whom use forced labour.12 Further, risks of modern slavery are heightened during COVID-19. The shifts in labour demand provided strong incentives for some businesses to exploit workers, including in industries that produce, process and provide essential items such as food, medicines and medical equipment, which have seen a sudden surge in the demand for workers as a result of COVID-19.13 Despite being asked to do so, not all Australian reporting entities discuss the impact of the pandemic on their modern slavery risks. Those that do acknowledge the pandemic in their statements, report that COVID-19 has increased risks through rapidly altered supply chain profiles and urgent demand for items such as personal protective equipment. Yet, there are widespread reports of reduced capacity to fully execute planned modern slavery risk assessment, training, and audit activities as a result of the pandemic.14

What other developments are afoot in this area?

There have been a few interesting developments in this area in recent years and months, both globally and within Australia and Western Australia. Here, I discuss first legislative initiatives and second, interesting litigation.

Globally, the Australian MSA is one of a number of similar laws in the past decade, which are either human rights due diligence laws, or business reporting

28 | BRIEF DECEMBER 2021

(‘disclosure’) laws. Some of the laws deal with the broad area of human rights (and the environment in the case of France) and others specifically target modern slavery. The California Transparency in Supply Chains Act of 201015 was the first of these ‘disclosure’ laws; with similar regimes introduced in the United Kingdom Modern Slavery Act 2015,16 the French ‘duty of vigilance’ law of 2017,17 and the 2019 Dutch Child Labour Due Diligence Law.18 Other modern slavery or human rights reporting or due diligence laws are under consideration in Canada,19 the European Union and elsewhere. A number of Australian businesses were already reporting under some of these laws before the Australian MSA was introduced.20 As such, going forward businesses can expect more, rather than less, obligations to report on and / or carry out due diligence on human rights within their operations and supply chains.

Another relevant development is the introduction of so-called Magnitsky laws.

Originating in the United States,21 and named after Sergei Magnitsky, a lawyer who died at the hands of the Russian state after uncovering corruption,22 these laws typically impose sanctions on foreign individuals for corruption and egregious human rights abuses. In the wake of the US Act and similar laws elsewhere, a Magnitsky-style law is also under consideration in Australia.23 In August 2021 the Government indicated that such a law should include sanctions for certain human rights abuses, including the right to be free from slavery, servitude and forced labour.24 The law would also allow sanctions against the perpetrator, their immediate family and direct beneficiaries of their conduct, and sanctions would apply to all types of entities, including ‘natural persons, corporate entities (emphasis added), and both state and non-state organisations.’25 A further incentive for businesses to increase their human rights efforts is that it could be required in future to qualify for government tenders. In 2020, the ALRC recommended ‘[t]he Australian Government, together with state and territory governments, should develop a national debarment regime’.26 An example of this is the Western Australian government’s proposed procurement debarment regime as part of the Procurement Act 2020 (WA).27 Part 7 of the Act allows for the termination of contracts with debarred suppliers, draft regulations include potential debarment for, inter alia, non-compliance with the MSA, equality and anti-discrimination laws and environmental laws.

There are also some interesting developments in litigation. Two recent overseas cases of interest in this area are discussed here. The first is the landmark UK case of Vedanta Resources v Lungowe

(Vedanta). The decision affirmed by the UK Supreme Court was that over 1,800 Zambians could proceed with a claim against a Zambian company, Konkola Copper Mines (KCM), and Vedanta, its UK parent company. As the claimants would be unable to access justice in Zambia, they claimed that Vedanta owed them a duty of care, and that their health and livelihood were damaged by the mine’s water pollution. Despite the Zambian Government holding a minority stake in the mine, the Court of Appeal decided that a case was arguable, as Vedanta had published reports claiming oversight of its subsidiaries, and risks of pollution at KCM, whilst noting its governance framework. Without admission of liability, the parties agreed to a settlement in January 2021.29 Commentators have expressed concern that the decision in Vedanta represents ‘a catch-22 for UK businesses: corporations that take steps to undertake due diligence regarding their supply chains… may in so doing expose themselves to liability by increasing the likelihood that a court may find they owed a duty of care to persons impacted by the activities of their foreign subsidiaries.’ Others argue that the decision supports the use of human rights due diligence and taking a proactive role with subsidiaries.30 Due diligence is discussed further below.

Another significant comparative case is the Canadian case of Nevsun v Araya.31 In 2020, the Supreme Court of Canada held that Canadian mining company Nevsun, a majority owner of a mine in Eritrea, could be sued in Canada by three Eritrean refugees. The refugees were bringing a class action on behalf of over 1,000 Eritreans. Their claim was that they had been indefinitely conscripted to work at the mine through the Eritrean Government’s National Service Program.

In addition to seeking damages under domestic law for negligence, unlawful confinement, and battery, the Nevsun case is unusual as the claimants also alleged that Nevsun had committed slavery under customary international law.

The Supreme Court noted that although international law has historically applied to states, international human rights law can be applied to private actors. In allowing the claim to proceed, the court also noted that remedy for such alleged grave violations under international customary law warrant stronger responses than tort claims.

Where to from here?

The business and human rights agenda is set to continue to develop. A United Nations binding treaty on business and human rights is under discussion and in the meantime, there is uptake of soft law instruments such as the UN Guiding Principles on Business and Human Rights

humanrightsinfocus and the OECD Guidelines on Multinational Enterprises. Within Australia, there has been an increase in complaints lodged under the OECD Guidelines to the Australian National Contact Point.32 As discussed above, legislation in this area is becoming more widespread in a number of jurisdictions and there is some interesting litigation afoot globally.

3 Nga Pham, Bei Cui, Ummul Ruthbah, ‘Modern Slavery Statement Disclosure Quality: ASX100 Companies’ (2021, Monash Centre for Financial Studies, Research Brief) https://www.monash.edu/__data/ assets/pdf_file/0011/2652887/MCFS-Researchbrief_Modern-Slavery-Statement-ASX100-3-1.pdf ; Fiona McGaughey, Holly Cullen, and Rebecca Faugno, ‘Australia’s World-first Repository of ‘Modern Slavery Statements’ A Step in The Right Direction’ 2020 The Conversation. https://theconversation.com/australiasworld-first-repository-of-modern-slavery-statementsa-step-in-the-right-direction-151029.

Here, the ALRC has proposed a strengthening of corporate criminal laws, including a ‘failure to prevent’ approach to corporate criminal responsibility which rather than a negative duty not to commit an offence, incurs a positive duty to prevent an offence. The ALRC sees this type of offence as having the potential to bolster the MSA as transnational crimes including modern slavery are more likely to occur in the form of an omission or failure to prevent the relevant conduct by the corporation, rather than as a specific act intentionally committed by the corporation. The ALRC has also proposed a due diligence law, which many scholars and practitioners have also recommended as a way of strengthening the MSA.

4 Walk Free Foundation. 2018. The Global Slavery Index 2018. https://www.globalslaveryindex.org/ (Walk Free).

Under Section 24 of the MSA, the Act will be subject to a three-year review and it is likely that recommendations such as this, together with the question of penalties for non-compliance, will be under consideration. There is quite strong political, corporate and civil society support for the MSA and the review is likely to be seen as an opportunity to strengthen the Act. Traditionally, we have viewed States as responsible for meeting human rights obligations.

Now, increasingly, we see a dispersed responsibility for human rights protection and promotion that includes other powerful global actors such as the business community. And rightly so.

End notes 1 Australian Law Reform Commission, Parliament of Australia, Corporate Criminal Responsibility (Final Report No 136, April 2020) (ALRC Report).

2 Australian Government, Submission to the Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the Modern Slavery Bill 2018 6.

5 Joint Standing Committee on Foreign Affairs, ‘Modern slavery and global supply chains: Interim report of the Joint Standing Committee on Foreign Affairs, Defence and Trade’s inquiry into establishing a Modern Slavery Act in Australia’ 2017, 2.

6 See, eg, R v Grey (No 3) [2020] ACTSC 43.

7 See, eg, DPP v Shaik [2020] VCC 909; Fair Work Ombudsman v Shaik [2016] FCCA 2345; Fair Work Ombudsman v Maroochy Sunshine Pty Ltd & Anor [2017] FCCA 559.

8 DPP (Cth) v Huang & Another, Unreported (QLDDC, 8 February 2017).

9 Fiona McGaughey, ‘Behind the Scenes: Reporting Under Australia’s Modern Slavery Act’ (2021) 27 (1) Australian Journal of Human Rights 20.

10 Walk Free, n 3, iv.

11 Ibid, 3.

12 Patrick Macklem, ‘Corporate Accountability under International Law: The Misguided Quest for Universal Jurisdiction’ (2005) 7 International Law Forum Du Droit International 281.

13 Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences, Impact of the coronavirus disease pandemic on contemporary forms of slavery and slavery-like practices. UN Doc: A/HRC/45/8, 4 August 2020, Human Rights Council Forty-fifth session 14 September–2 October 2020 (‘Report of the Special Rapporteur’) 12.

Australia Needs a Magnitsky Law’ (2018) 89(4) AQ: Australian Quarterly 19, 21.

23 Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, Criminality, Corruption and Impunity: Should Australia Join the Global Magnitsky Movement? (Report, 7 December 2020).

24 Australian Government, Australian Government response to the Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights Sub-Committee Report: Criminality, Corruption and Impunity: Should Australia Join the Global Magnitsky Movement? (Report, 5 August 2021) 5.

25 Ibid 7.

26 ALRC Report, n 1, Recommendation 15.

27 Part 7 of the Procurement Act 2020 (WA) allows for the termination of contracts with debarred suppliers and came into force on 1 June 2021. Regulations providing for debarment are envisaged for late 2021: WA Department of Finance, ‘New Western Australian Procurement Framework Enacted’ (Government Announcement, 21 June 2021) <https://www.wa.gov. au/government/announcements/new-westernaustralian-procurement-framework-enacted>.

28 Vedanta Resources Plc and Konkola Copper Mines Plc (Appellants) v Lungowe and Ors. (Respondents) [2019] UKSC 20.

29 Business and Human Rights Resource Centre, ‘Vedanta Konkola Copper Mines Settle UK Lawsuit brought by Zambian Villagers for Alleged Pollution from Mining Activities’. <https://www.businesshumanrights.org/en/latest-news/vedanta-konkolacopper-mines-settle-uk-lawsuit-brought-by-zambianvillagers-for-alleged-pollution-from-mining-activities/> 30 ALRC report, 464.

31 Nevsun Resources Ltd v Araya [2020] SCC 5.

32 See open complaints here: https://ausncp.gov.au/ complaints/track-open-complaint

14 Fiona McGaughey, ‘Australia’s Modern Slavery Act and COVID-19: A Get Out of Jail Free Card?’ (2020) 5 (2) Journal of Modern Slavery 41.

15 California Transparency in Supply Chains Act (SB 657).

16 Modern Slavery Act 2015 (UK) (UK MSA).

17 Loi no. 2017-399 du 27 Mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre (France) (Loi no. 2017-399).

18 Dutch Child Labour Due Diligence Law [2019] Wet Zorgplicht Kinderarbeid] 19 BILL S-216 An Act to enact the Modern Slavery Act and to amend the Customs Tariff 2020 20 See, eg, Fiona McGaughey, Hinrich Voss, Holly Cullen, Matthew Davis, ‘Corporate responses to tackling modern slavery: a comparative analysis of Australia, France and the United Kingdom’ (2021) Business and Human Rights Journal.

21 Global Magnitsky Human Rights Accountability Act 22 USC §§ 2656 22 Geoffrey Robertson and Chris Rummery, ‘Why

LEAVING A

LASTING LASTING LEGACY LEGACY

HOMELESS

WILL HELP

DOGS

IN WA

29

Human Rights Special Feature

Police Cautions and Admissibility of Evidence

by Aidan Ricciardo, Lecturer at the UWA Law School

Does failure to understand the police caution render an accused person’s admission involuntary?

T

here are a handful of Western Australian cases (decided over the past couple of years) in which it has been argued that an admission was not voluntary, and thus should be inadmissible, because the accused person did not understand the police caution given to them.

That is, the argument goes that the person did not understand that they had a right to remain silent, so they were not speaking voluntarily.

The judgments: The Court of Appeal has made it very clear that failing to understand the caution does not itself give rise to involuntariness. For example (and most recently), in Luo v The Queen [2020] WASCA 184, the Court said that: ‘… in Australian law, an accused person does not need to have understood that he or she has a choice as to whether or not to speak before a statement is taken to be voluntary. A failure by police to give a caution at all or a failure by an accused to understand the caution will be relevant to the exercise of the residual [fairness] discretion. However, such failures do not of themselves render a confessional statement inadmissible by reason of being involuntary.

In the present case it is not suggested that the police officers offered any threat or inducement in order to procure the admissions, or that the appellant’s will was overborne by any external factor.

The fact that he did not understand the caution and appreciate that he did not have to answer questions, if established, would be relevant to the exercise of the residual discretion but would not make the admissions involuntary for the purposes of the common law exclusionary rule.’ (at [74]–[75])

30 | BRIEF DECEMBER 2021

In Luo, the appellant spoke Cantonese and submitted that he spoke no English. He also submitted that he was an unsophisticated fisherman. For these reasons (amongst others), at trial, he claimed he did not understand the caution given to him by police. A similar situation arose in George v State of Western Australia [2020] WASCA 139, in which the appellant was a speaker of a dialect of Tamil who the Court of Appeal observed could ‘communicate effectively in English’ (at [43]). In George, the Court of Appeal (at [100]–[101]) made the same point that was later made in Luo. These arguments in Luo and George might have been prompted by a similar argument which was made the year prior in EYO v State of Western Australia [2019] WASCA 129. In that case, the appellant spoke Djaru as his first language, and also spoke some English. The appellant argued that his admissions were involuntary because he did not understand the caution given to him. Ultimately, in EYO, the Court did not clearly state that a failure to understand would not result in an admission being made involuntary, presumably because the Court agreed with the trial judge that the appellant did in fact understand the caution: ‘Having viewed the VROI, and seen and heard the appellant’s answers to the questions put to him by the police, including those that were interpreted into Djaru, we think that his Honour did not err in finding that the appellant understood that part of the caution which informed him that he was not obliged to answer the questions put to him by the interrogating police officers. This is because, not only did the appellant answer in the affirmative that he understood that he did not have to answer the officers’ questions, but on several occasions asserted that he did not wish to do so.’ (at [66]) However, in EYO, the Court did find that the record of interview should have been excluded through exercise of the fairness discretion due to law enforcement’s failure to comply with the Anunga guidelines (which are to be complied with when interviewing a suspect who is an Aboriginal or Torres Strait Islander person). As the Court set out:

‘Breaches of the Anunga guidelines may be relevant to an assessment of the voluntariness of confessional evidence given by an Aboriginal person and the exercise of the unfairness discretion.’ (at [54]) The breaches in EYO ultimately justified exercise of the discretion to exclude the record of interview for the following reasons: ‘… on various occasions, when asked whether he wished to answer questions by the police, the appellant answered to the effect that he did not wish to answer.

The appellant could not have been any clearer when he said, ‘I’m saying nothing’; ‘Yeah, I don’t want to speak’; ‘Yeah. I don’t want to say anything’; ‘On them other thing, like, this lawyer told me to, you know. The lawyer tell me to say no’.

Whenever the appellant responded to the effect that he did not wish to answer any questions, the interrogating police officers ignored those responses. Instead, they continued to interrogate the appellant about the alleged offences, as if the appellant had answered in the affirmative.

In our opinion, the police officers, by their conduct, whittled down the effect of the caution by continuing with the interview when the appellant had repeatedly stated his wish to remain silent. In this way, the interrogating officers failed to respect the appellant’s choice to stay silent.

Their conduct infringed guideline 8 of the Anunga guidelines which provides that an interview should not proceed if the person being interviewed states he or she does not wish to proceed further.

[The trial judge should have] concluded that the VROI was inadmissible on the basis of the unfairness discretion. In our opinion, it was plainly unfair to admit into evidence the VROI, having regard to the factors above.’ (at [76]–[78])

Conclusion: The judgments are very clear that failure to understand the caution will not make an admission involuntary. However, it will be relevant to the exercise of the fairness discretion.

Law Access Awarded

2021 UNAAWA Human Rights Award An article submitted

by Dominique Hansen, Chief Executive Officer, Law Access

UNAAWA connects Western Australians with the United Nations in order to promote justice, peace, security and sustainable development for present and future generations.

Law Access was honoured to be awarded the 2021 UNAAWA Human Rights Award at a ceremony held on 22 October 2021.

The Excellence in Human Rights Promotion Award recognised the work of Law Access as an outstanding contribution to the promotion of human rights in WA. The award reflects the contribution of the many pro bono lawyers and volunteers who we rely on to deliver our service.

Below are some comments Law Access received from the judging panel: “The judges enjoyed learning about your advocacy for those in need of legal representation in the Western Australian community. You have had an outstanding impact; providing assistance to those in need but unable to afford representation, education about the rights they are entitled to and challenging the status quo – to name a few.”

“Your nomination demonstrated innovation and a strong commitment to volunteerism that has directly contributed to Australia’s achievement of SDG goals. It is the dedication and energy of local Champions like yourself that makes a difference in the community.”

Established by our founder and parent body the Law Society of Western Australia in collaboration with our many stakeholders, Law Access has delivered a state-wide pro bono legal referral service since 1 July 2015.

Our service works to improve access

L – R: Matthew Howard SC, Board Member Law Access; Dominique Hansen, CEO Law Access; Randhir Amoganathan, UNAAWA Human Rights Committee; Georgia Pickering, Principal Lawyer Law Access; Elizabeth Lang, Finalist UNAAWA Human Rights Award.

to justice for the most disadvantaged and marginalised people in Western Australia, and, in doing so, to promote and uphold their human rights. Two -thirds of applications received by Law Access in FY2021 were civil law matters. This is our highest area of unmet legal need followed by Family and Criminal Law.

Criminal law Law Access provides pro bono assistance in criminal law matters where legal assistance from legal aid or community legal centres or the Aboriginal Legal Service of WA is not available. This is of particular concern for applicants facing potential imprisonment in WA in the Magistrates Courts. Law Access is determined to play its part in ensuring that accused persons are able to exercise their right to legal representation. Law Access and its referral partners strive to provide applicants charged with a criminal offence with the minimum requirements owed to an accused person, such as information about, and an understanding of, the nature and cause of the charge, legal assistance of their choosing, and the free assistance of an interpreter if necessary.

Immigration (a subset of civil law) Law Access enables applicants to challenge decisions made in this rapidly evolving area of law and are grateful to work with lawyers who are committed to ensuring decisions are made fairly and in accordance with the law. Law Access established the Lawyers for Refugees Network in response to unmet legal need for asylum seekers at judicial review. Lawyers in the Network have since assisted large numbers of “legacy caseload” asylum seekers who arrived by boat after the relevant change in Commonwealth law in 2013.

Family law Whilst it is more difficult to refer family legal matters on for pro bono assistance due to the relatively small size of the family law profession and the complexity and duration of many family law matters, Law Access continues to aim to better understand and explain the extent of unmet legal need in this

area of law and to help as many people as we can.

In order to maximise the impact of the limited available family law pro bono resources, Law Access prioritises people at risk of homelessness, including those affected by family and domestic violence who seek assistance with property settlement matters. We also prioritise assistance for families facing statutory intervention in Children’s Court proceedings with limited or no legal representation. Such proceedings have the potential to split families up and, therefore, to impact their human rights.

Ensuring Pro Bono Culture Thrives in Western Australia Law Access works hard to undertake policy and advocacy in areas of unmet legal need. We also continue to foster pro bono engagement within the Western Australian legal profession by developing a sense of community and connection among legal professionals engaging in pro bono work. We promote opportunities for pro bono lawyers to take our referrals through our networks and through the various professional associations, and provide referral lawyers with support, and, where necessary, training in areas of high unmet legal need.

Pro Bono Lawyers who take our referrals donate extensive time and expertise to the community and each year we issue certificates of appreciation to express our thanks to those lawyers for being part of the pro bono legal community. We also hold an annual Law Access Walk for Justice on the Tuesday of National Law Week each year. This provides an opportunity for the pro bono community to come together to highlight unmet legal need and to celebrate the pro bono legal community’s achievements.

We look forward to growing our service in order to assist even more marginalised people in Western Australia to achieve access to justice.

31

The Law, Philanthropy and Shark Wrestling In conversation with The Honourable Malcolm McCusker AC QC Conducted by Thaw-Thaw Htin and Martin Bennett

T

his in-depth conversation with The Honourable Malcolm McCusker AC QC was organised by Bennett + Co on 17 July 2021 in honour of the forthcoming 60th anniversary of Malcolm’s admission to legal practice in Western Australia on 22 December 1961. As a backdrop to the conversation, a series of slides was shown, which celebrated the many aspects of Malcolm’s extraordinary professional, public, philanthropic and personal life.

Thaw-Thaw Htin: I am very, very excited to introduce our keynote speaker, The Honourable Malcolm McCusker AC QC. Malcolm has held a variety of roles.

Many of you would know him as the 31st Governor of Western Australia between 2011 and 2014, as well as being a lawyer, QC, philanthropist and surf lifesaving-shark wrestler. So, we are using this session to learn as much as we can about the roles that Malcolm has held, what these roles have meant to Malcolm, and how we can draw from him the lessons that he encountered throughout all that. Would you please give a warm welcome for Malcolm.

Martin Bennett: Can I say that on the topic of Malcolm’s love affair with the law, in December of this year it is Malcolm’s anniversary of his 60th year of admission in Western Australia. Nobody has survived 60 years in the law without loving the law. You all know that it is a really demanding business: the time it demands, the effort that it demands, the fatigue that it brings, and the ups and the

32 | BRIEF DECEMBER 2021

downs are all important. And a career that spans six decades of practice in Western Australia is full of instruction for all of us at whatever stage we are in practice. I can only go back for 42 of those years. I am keen to hear how Malcolm first fell in love with the law and how he got into law, how he went through law school, probably back in the day when there were only four people in the year, and to hear something of the origins of what has been a sustained passion. I can tell you that what I know is that Malcolm is probably one of the very few people who will start to get interested in a point of the law, research it, and stop at about 2.30 in the morning when he has got the answer. Mind you, you don’t have to stay up working to 2.30 in the morning, but if you do, it shows that you have got a passion for this, a curiosity and a continued enthusiasm for learning and the depth of knowledge that is required, but also the depth of preparation that is required. So, Malcolm, how did you fall in love with the law?

The Honourable Malcolm McCusker AC QC: Well, first of all, I am going to correct you. It is a slight understatement when you say that there were only four of us in my year of law. There were, if my memory serves me correctly, about a dozen. When I went to UWA Law School, there were about 70 students in total. So, because of that, sometimes two years were combined for lectures. My second year was combined with the third year. We had a visiting professor (Pedrick) from Northwest University who lectured us in tort law – 5 days a week. He taught the Harvard Law School method, basically a case study approach. It was very stimulating. He was a fine lecturer. Our lecturers at the law school then were almost entirely parttime lecturers, legal practitioners. For contract, we had Mr Burt, who became Sir Francis Burt, Chief Justice, and ultimately

the Governor of Western Australia.1 John Toohey, who became Toohey QC and ultimately a High Court Judge lectured us in Property Law.2 Ron Wilson lectured us in Commercial Law. He became Sir Ron Wilson and a High Court Judge (the first High Court judge from Western Australia).3 We had a host of other legal luminaries. They were very stimulating lecturers because they could tell us of their experience on the battlefront. They would relate the theory to the practice. And that, I suppose, started my so-called love of the law, although I hadn’t quite decided then whether I was going to practise law.

I was the first member of my family and extended family to ever go to university and I had little knowledge of the profession of law. I had a full-time job with Shell Oil Company when I did my first year at law school.

Many years later, when I was practising law and I went to the Supreme Court to have a chat about my future with Sir Francis Burt, the Chief Justice, I said, “You know, Sir Francis, your lectures in contract made me appreciate what law was all about and enthused me with the idea of becoming a lawyer.” Upon which he looked very solemnly at me and he said, “Oh, McCusker, don’t put that burden on my shoulders.” However, when I got my degree, I didn’t know any lawyers and was still unsure what career to pursue. The Dean, Eric Edwards asked “What are you planning to do next, McCusker?” I said, “I don’t know. I’m thinking of perhaps a career in the diplomatic service”. The Dean wisely advised me: “Well, do your articles first.” He said, “I’ve got a friend Bob Wallace a partner at Kott Wallace and Gunning. I can get you articles with him.”

So, I met Bob Wallace in his office. When I said that I hoped he would teach me to practise law, Bob said, “No, we don’t teach you, you’ll have to learn on the job” – which

was what happened. There were only three women lawyers practising in Perth then, out of about 350 practising lawyers in Perth. There are now about 7,000 lawyers, I think, so there has been a dramatic change and (it is pleasing to observe) a large increase in the number of women lawyers. The partners in the firm gave me all kinds of tasks. They didn’t quite know what to do with an articled clerk. At the end of my two years articles, Bob Wallace asked if I would like to become a partner. I said, “Mr Wallace” – I didn’t call him Bob – “Mr Wallace, I’ve got no money. I can’t buy a partnership”. He said, “No, no, we will give you the partnership, but do you mind if we hold off until 1 July 1962, which will be 6 months after your admission to practice, in December 1961?” So, I became a partner of the firm at the ripe old age of 23! I was thrown straight into everything.

The firm did all kinds of work, commercial work, Court of Petty Sessions work, whatever came along. When I was about 25, I did my first solo full court appeal. It was a commercial case. Sir Albert Wolff presided, as Chief Justice.

Martin: You’ve been through five Chief Justices.

Malcolm: True. When I took on that appeal, I’d lost before Oscar Negus4 at first instance, but I advised the client to appeal.

Although I thought the appeal should succeed, as the day approached, I felt the need for some reassurance. So, I went to see John Toohey, who used to send me a few briefs at that stage. He was practising as a barrister and solicitor. There was no Bar then. I said, “What do you think of this appeal?” He said, “You’re going to lose”.

Then I asked Bob Wallace, who also said I would lose. Well, that didn’t give me a lot of courage! Undaunted, I rang Mr Burt – ‘Red Burt’ they called him. I said, “Mr Burt, can I come and see you?” I went through the appeal ground and he said, “I think you’re right.” So, that lifted my spirits, and I pressed on. In those days, a junior lawyer could go to a senior lawyer, and seek advice, which was freely given. I have tried to follow that excellent practice, since becoming a QC. The Full Court heard the appeal in July 1964 and delivered its decision (in 3 pages) upholding the appeal, 3 weeks later. Brief, succinct, and to the point. Judgments in those times were, generally, briefer and more expeditiously given, than in later years.

That experience, in my early years, was uplifting and caused me to think that the practice of law was an enjoyable and interesting profession, worth staying with.

Martin: One of the things I have always admired about Malcolm is the generalist

approach that he has to practice: civil suits of the utmost complexity, criminal suits, and then I know, because of friends that I have, that he doesn’t mind drafting the odd trust deed. A friend of mine was being cross-examined in the Family Court: what sort of trust deed is this? He said, “I don’t know, Mr McCusker drafted it.” So, there’s a spread across everything, contrary to the current trend of specialisation.

Malcolm: True. We did everything in the firm of Kott Wallace and Gunning. At first, I only acted for defendants in criminal cases.

But after a while I began to get prosecution briefs from the Crown. I remained as a partner for about six years, and enjoyed it tremendously. I had other interests from law, rugby, surf lifesaving, kayaking and so forth. I was very keen on farming. In fact, I told my father when he asked me (when I was at Perth Mod) what I wanted to do, that I’d like to be a farmer. He said, “We’ve got no money, son, so you’d be a farm labourer. Go to university first and also get a job.” After I had been a partner with Kott Wallace and Gunning for about 2 years, one of the partners said, “We are thinking of buying a farm, Malcolm. Would you like to join us?” I had no hesitation in agreeing, and I’ve been involved in farming ever since.

Martin: That was back in the days where it was a really good tax deduction to own a farm.

Malcolm: It was really hard work, I’ll tell you, and I didn’t get involved for a tax deduction.

Martin: Four sheep and you’d know them by name!

Malcolm: A lot more than four sheep, and many cattle. We actually did a lot of work on the farm. The father of Ivan Gunning, one of the partners, had taken part in the Battle of Beersheba, the last great cavalry charge. I thought (and so did he) that with those genes he must be a good horseman.

He wasn’t. He was only a little better than me, and I was really bad. But the two of us used to go and round up the cattle on our farm, and imagined ourselves to be real stockmen.

Martin: Where was the farm?

Malcolm: It was at Gingin. And we had a big block on the coast as well. We used to drove cattle from Gingin, out to the coast.

There were holiday shack dwellers on the beach. They would greet us, and feed us fish and crayfish. We also drove tractors and did the ploughing. I would turn up on Monday morning at the office sometimes, having worked on the weekend at the farm, my eyes blackened with soot. Anyway, returning to the subject of law, I shall tell you how I came to get prosecution briefs. I

Undaunted, I rang Mr Burt – ‘Red Burt’ they called him. I said, “Mr Burt, can I come and see you?” I went through the appeal ground and he said, “I think you’re right.” So, that lifted my spirits, and I pressed on. defended a young man charged with rape.

My first jury trial. I was very conscious of the importance of thorough preparation for any trial. And my preparation went as far as going to the home of the complainant, and managing to interview her parents.

Martin: Did you have your heart in your mouth when you did that?

Malcolm: It was fairly intrepid, I suppose, but when the rape trial began, I was fully prepared. Sir Lawrence Jackson was the judge. I think it was more due to the careful wording of his address, which was slanted subtly towards the defence, than my brilliant defence, that we won an acquittal. A couple of months later the prosecuting counsel – Ron Davies, a tenacious and able prosecuting counsel – got in touch with me and said, “Malcolm, would you be interested in taking some prosecution briefs?” So, from that time on, when I was in my mid-twenties, I guess, I was doing 2 or 3 prosecution briefs each month. That continued for about 10 years.

I was combining that with defence briefs.

I think it is desirable that defence counsel get a taste of prosecuting, and vice versa.

Martin: It is more than that. You become aware of the precision that is needed on a prosecution and it’s the absence of precision that gives the opportunity to the defence.

Malcolm: You’re quite right. Another case that was memorable was when I acted for a man called Conroy, who was charged with conspiracy to defraud. Two of his co-accused were lawyers, Denis Beere and Brian Singleton. There were two other co-accused, non-lawyers. I, and the two counsel acting for the two other non-lawyers, thought we’re going to go down with the ship because the jury is sure to convict the lawyers, there being a general belief that there would be antagonism towards lawyers, particularly if they’re allegedly conspiring to defraud.

But, after a five week trial, the jury came back and acquitted the two lawyers and 33

Martin Bennett, The Honourable Malcolm McCusker AC QC and Thaw-Thaw Htin at the Bennett + Co retreat reflecting on Malcolm’s 60 years

convicted the 3 non-lawyers. Conroy was only a young man, a very likeable guy.

Mrs Conroy was in tears, and I remember saying to her – looking back, foolishly, because you should never promise any outcome – “Don’t worry, Mrs Conroy, we’re going to appeal and we’ll get him acquitted.” Which we did, on the difficult ground that the jury verdict was “unsafe and unsatisfactory”. The Appeal Court of Jackson CJ, Burt and Wickham JJ delivered its 2 ½ page reasons in just over a month.5 Singleton QC, one of the lawyers acquitted by the jury was a top criminal defence lawyer. He later said to me, “Do you know, being an accused in the witness box, before a jury, had given me a good understanding of how a poor old accursed feels.” (He used to call the accused ‘the accursed’). He added, “What’s more, my practice got even busier after that.”

Martin: When did you form McCusker & Harmer? Because my first knowledge of you was McCusker & Harmer – a formidable, small firm with Ron Harmer a specialist in insolvency.

Thaw-Thaw: Might you have applied for articles there, Martin?

Martin: I did apply for articles but I was unsuccessful.

Malcolm: What a lapse of judgment on my part! I stayed with Kott Wallace and Gunning as a partner for six years and then I decided to start off on my own. Bevan Lawrence and, later, Ron Harmer joined me. The firm was McCusker Lawrence & Harmer. Then Bevan decided to go on

34 | BRIEF DECEMBER 2021

his own, so the firm became McCusker & Harmer. I had a large insolvency practice, and I couldn’t handle it because I was doing so much other work. It was getting a bit too much. When Ron Harmer came along, I said, “Ron, I want you to specialise in insolvency and take over the insolvency practice,” which he did. He’d actually been lecturing in insolvency before that. Years later, Ron was seconded by Michael Kirby to the Australian Law Reform Commission, where he re-wrote the laws of insolvency.

Martin: If you go back to those days, creating a new law firm in Perth was a very rare thing. They pop up frequently on a daily basis nowadays and shut almost as regularly, but McCusker & Harmer was an enduring institution, a small boutique law firm specialising in litigation and insolvency.

Malcolm: Yes, Ron Harmer specialised, as you say, in insolvency. One case, over which Ron and I used to figuratively slap each other on the backs, was when we acted for an insolvency practitioner, Ron Brown, against the Bank of New South Wales. But it was not just against that bank. It was a consortium of banks, because the issue at stake was a very important one to the banking industry. At first instance, we went before Bob Wallace.

By then he’d become a judge, and a very quick judge he was.

Martin: In fact, most people said he wrote his judgments before the trial started.

Malcolm: I think they were sometimes right! On one particular occasion he was sitting on the Court of Appeal and before the appeal was heard, he passed round

to his fellow Appellate Judges his draft decision.

Martin: He was known as the cobra because he would strike without warning.

Malcolm: Well, Bob – for whom I had great regard – would be listening to, say, counsel for the plaintiff, and he would be nodding his head, and the counsel for the plaintiff would think, ‘I’m winning’. Then Bob would (as you say) strike without warning. Anyway, Bob Wallace heard this very important case. The banks imported Roddy Meagher QC, who became, ultimately, a Judge on the Appellate Court of New South Wales. Ron Harmer and I went before Bob Wallace who, within the space of about ten days, gave a decision in our favour on this very complex case.6 The banks, as we expected, appealed to the Court of Appeal.7 We won before the Court of Appeal They took about two or three months. Then the banks appealed to the High Court.8 We won again; I think they took about five months. So, Bob showed himself in his true colours. He was speedy and usually got it right. The High Court report, which we used to chuckle about now and again, read: Counsel for the respondent Malcolm McCusker QC, with him Ron Harmer.

Solicitors for the respondent McCusker & Harmer.

We thought that was unique, although we repeated that, 2 years later, in another High Court appeal.

Martin: We skipped over the bit about taking silk and I think I have a story about

The Bennett + Co team retreat

that. Malcolm was the first person from the ‘amalgam’ appointed as Queens Counsel and there’s only been about three all told.

And successive Chief Justices have set their face resolutely against appointing Senior Counsel from the amalgam ever since, but yours were unusual circumstances in that –

Malcolm: Yes, Martin. The situation was that until 1963, the Bar didn’t exist. The Bar was started by Burt, John Wickham and Terry Walsh. They invited me to join later, but I said, “No thanks, I’m happy practising as I am.” Then the Chief Justice at the time, Sir Albert Wolff, decided that in future there’d be no appointments of silk unless they came from the Bar, and that became the practice.

Martin: Other than the Crown.

Malcolm: Yes, other than the Crown. Ron Wilson was appointed without joining the Bar. There were big protests from the Law Society who said, “You can’t do this!”

There’s no law that says that a Queens Counsel can’t be appointed from the amalgam. The Chief Justice when this began was Sir Albert Wolff.9 His personal lawyer was Ken Hatfield, an eminent criminal defence and civil litigation lawyer.

The story is, I’m sure it’s not apocryphal, that Sir Albert called Ken in and said, “Ken, join the Bar and I’ll make you a QC.” And Ken said, “Sir Albert, I’ll give that careful consideration.” So, Ken was made QC. Sir Albert called him down later and said, “Ken, you haven’t joined the Bar,” and Ken said, “No, I have thought carefully about that and I decided not to join.” So, Ken Hatfield, in fact, was the first from the amalgam, after the formation of the Bar, to be made a QC, not me.

Thaw-Thaw: You’ve spoken so far about your career, and it seems to have gone at warp speed, stellar ahead. Can you explain to us some of the challenges that you encountered during that time when you were starting out, and also the

importance of mentors or sponsors during that time?

Malcolm: One of my earliest mentors, beginning from when I was only articled with Kott Wallace and Gunning, was Leonard Seaton QC. He was made QC years before the W.A. Bar was established.

Seaton was a brilliant advocate, even though, at the stage that he was one of my mentors, he was on the grog, literally on the grog, so that sometimes I’d take his brief along to the Red Lion Hotel where he’d be seated at the bar, and I would explain what the case was all about. On one occasion, he turned up at the court very scruffy, just in time for a hearing, and said, “What’s this all about Malcolm?” I told him and he said, “Ah!” He had a photographic memory.

“You go and find this case for me.” It was an early English appeal decision. “Get that for me.” And he walked into Court with that one case. He was against another QC who had a large number of cases, from which he quoted at length. Seaton QC referred to only the one decision. It was right on point, and he won. I went back to the old United Services Hotel with Seaton afterwards and had a drink with him. I said (a bit naively) “Mr Seaton, how did you get to be so good?” And he said “Malcolm, I always, to this day, seize every new law report and read it”. He said “That’s the only way, you must work at it.” But Len had more than that: he had a brilliant mind. So, he was one of my early mentors. He kept me on my toes, too. In Court, he sometimes, without warning, would lean down and tell me (as his junior) to take over while he went out for a smoke. Burt was also a mentor.

I used to watch his style as a barrister – always prepared, always courteous.

Whenever I could, I’d go and watch good counsel in Court. In addition, I read every book I could about advocacy. I got a lot of tips, one of which always stuck with me was that the art of cross-examination is not to examine “crossly”. That is very important. And to prepare well in

Martin Bennett and Thaw-Thaw Htin presenting The Honourable Malcolm McCusker AC QC with a commemorative bottle of Penfolds Magill 1960, bottled in 1961, the year Malcolm was admitted.

advance. Preparation is everything. You’ve got to be prepared to meet unforeseen circumstances but, as far as possible, foresee what’s going to happen.

Thaw-Thaw: Did you find yourself being in the deep end most of the time? How did you navigate through that?

Malcolm: I can honestly say I’ve never found myself in the really deep end because I would always make sure that I had prepared. Martin said something about my studying until 2.30 in the morning, and that’s true. I remember – jumping way, way ahead – that when I was arguing the appeal for Mallard,10 before the second day of the hearing in the High Court in Canberra, I stayed up all night, I didn’t sleep at all. I was running on pure adrenaline the next morning. And when we finished Court that day (and were fairly confident we had won), Jamie Edelman, who was my junior at the time said, “Stay and have a drink.” I said, “Jamie, I’m exhausted, I’m just going to have a sleep.”

The important thing is, you’ve got to have a passion to do that. You are quite right.

You’ve got to have the passion, the belief in your client’s cause and, I suppose, a belief in justice. Sometimes people say, “What’s your most important case?” I reply, “Every case is important to the client.” And you’ve got to remember that: they are all important cases, to the client.

Martin: So, how do you balance the pressure of family life, and by that stage, you and your father had established Town & Country Building Society, and you had farming interests and were spreading yourself across. And I know you had given up playing rugby – you were an outstanding winger, can I say!

35

Front Row: L-R The Hon Wayne Martin AC QC, The Hon Malcolm McCusker AC QC, The Hon Justice James Edelman, The Hon Justice Robert Mitchell, Back Row: L-R Rob Meadows QC, Ray Warnes. Government House for Justice James Edelman’s swearing-in ceremony on 22 July 2011 when he became a Supreme Court judge.

Malcolm: Well, you can say that of course — one of the most outstanding!

legal practice. A lot of interesting work, and quite a lot of fun, too.

Martin: The fact that he hasn’t got a

Martin: He tried to kill you though before

broken nose probably indicates that he wasn’t caught that often! Surf lifesaving and canoeing. For those of you who don’t know, Jamie Edelman first introduced himself to Malcolm by tipping Malcolm off a surf ski at North Cott when Jamie was, you’d find it hard to believe, a very precocious, hyperactive, young –

Malcolm: Yes, you’re right, and after that Jamie had the temerity to approach me, he was still an undergraduate at UWA doing three degrees concurrently, and ask, “Can I come and do some summer clerking for you?” I still pride myself on my perceptiveness, because I said to him, after he had done a couple of summer clerkships, “Jamie, before I die, I want to see you on the High Court.” That’s literally true. He acknowledged that not so long ago. Even then he showed an incredible work ethic and acumen, and a real passion for the law. He came back to Perth from Oxford, and we worked together as counsel for some years. He persuaded me, at last, to join the Bar. It was a very stimulating and enjoyable period of my 36 | BRIEF DECEMBER 2021

he made it to the High Court, in Oxford!

Malcolm: Yes, when he was a Rhodes Scholar at Oxford. He wasn’t actually trying to kill me, but he nearly drowned me. Talking about balance in life, under Bob Wallace’s urging in my earlier years I participated a lot in the Law Society, the Law Council. I was a junior member of the Law Council, a member of the practice committee, the law reform committee, the conveyancing committee and one of the founders, with Jennifer Carr of “Briefs”, the forerunner of “Brief”. I must say, the tiny legal profession then in those early days, tiny by comparison with now, was a very collegiate group. I knew virtually every lawyer in Perth by their first name. We’d get together at Law Society functions and most of the profession in Perth would turn up, because the numbers were so small.

You can’t do it these days. But I do think it is important that young lawyers become involved in, participate in, our Law Society.

Martin: So, did you try and work consciously on the balance of maintaining

fitness and family, friends, business, outside interests, or did they just sort of occur naturally, the love of sport and the love of fitness?

Malcolm: They came naturally. I started doing Avon Descents in kayaks and so forth. And I’d always been involved in surf lifesaving since the age of about sixteen. In those early years, when I could, if I wasn’t in Court, I used to go to Beatty Park, which was the only inland swimming pool in Perth, I think, around at the time, and do laps during lunch hour, often with Nick Tolcon, by then also a partner in Kott Wallace and Gunning. Then I’d come back to the office and continue working.

Martin: And so, you competed in the Australian Surf Lifesaving Masters up until the late 90s, early 2,000s?

Malcolm: Yes. Martin: One memorable event in Queensland where you were upended by a monster wave and clung to a buoy until you were rescued.

Malcolm: Oh, you didn’t have to mention that! I was clinging to the buoy, there were huge waves, I had been on a single

ski. And this rescue boat came along, and I thought, “Will I be humiliated and say “help”?” In the end, I did, and jumped in.

Most undignified, but safe.

Martin: My recollection of you obtaining silk, maybe it is apocryphal, is that the late Michael Murray,11 a Judge in the Supreme Court, was a senior crown prosecutor, an immensely fair, decent prosecutor. He had a car accident and was unable to practise for about six months while he was recovering. So, Malcolm gave up his private practice, stepped in and did all of Mike Murray’s prosecutions. What was notorious at the time is a lot of blokes facing prosecutions skipped bail to avoid Malcolm!

Malcolm: That is definitely apocryphal, although I did take on more prosecutions at that time. One prosecution that sticks in my mind, to this day, was a trial that lasted for about five or six weeks, of four drug squad detectives and a prostitute, charged with conspiracy to sell cannabis. The police internal investigation did a fantastic job, unravelling all the evidence. It was a very strong case, but I noticed during the trial that the jury were looking very worried.

They use to file out from the Supreme Court at the end of the day between a phalanx of tough-looking men in business suits.

Halfway through the trial I went to the trial Judge Pidgeon,12 taking the other counsel with me, and I said, “Look, I want you to do something about the jury’s protection.”

And he said, “I can’t do that.” So, he didn’t, and it continued. When the trial ended, the jury retired I think for less than an hour, and came back with a verdict of not guilty.

They all had their heads down and, as they walked past me, I’ll never forget it, a woman on the jury leaned across and said, “I’m sorry Mr McCusker, it’s not your fault”. So, something went on there. It strengthened my resolve to try and get something done about the jury system, because in this day and age I believe it is an anachronism. But that is another question. Getting back to my becoming silk (after your apocryphal story). What happened was that the Law Society continued its campaign against the condition that you had to be at the Bar to become a QC; but it got nowhere. And then one day – and by this time I’d done prosecutions, defences, civil actions, all kinds of appeals, including High Court appeals — I was called down to see Sir Francis Burt. I had never applied to be appointed silk, but he said, “Malcolm, you haven’t joined the Bar, and you have said you don’t intend to. Well, we’ve had a look at your career, and you are practising as we’d expect a silk to practise. You are getting briefs from all over from the amalgam, from practitioners, and you are always available. We’ll make an exception for you, and we’ll make you silk.”

Thaw-Thaw: What year was that, Malcolm?

Malcolm: 1982. About three years later I was briefed to go to the Privy Council, which was one of the very last Privy Council appeals from Western Australia before the Australia Act,13 which ended appeals to the Australia Privy Council. It was a great experience.

Martin: It was deplorable that the Australian taxpayers voted to abolish an appeal system where the English taxpayer paid for the appeal. I was a junior counsel in the appeal of Cameron v Murdoch.14 It was just fantastic.

Malcolm: Do you remember who you had? I remember we had, among others, Lord Brightman and Lord Diplock.15 Martin: I know that Diplock had died a month or two months before that. We had Lord Keith of Kinkel, Lord Roskill, Lord Brandon of Oakbrook, Lord Mackay of Clashfern. And for the very first time sitting on the Privy Council, Sir Robert Megarry, the most intelligent person that I have ever seen.

Malcolm: Well, I’m sure that you experienced, as I did, the sharp intelligence and courtesy of those Law Lords.

Martin: It’s like going to the Olympics.

Malcolm: All had a very reserved manner about them, no one got shafted. They were thoroughly prepared, the epitome of what a good Judge should be. And, as you say, the costs of the hearing were paid by the English taxpayer not the Australian taxpayer. So, all that Australians had to do, if they could afford it, was to pay for their own lawyers.

Martin: Allan Myers wasn’t even a silk, and he had an apartment in England, so he was available as a junior on Privy Council appeals. They didn’t speak Australian though, that’s the thing that I found. I went on a farming case that involved living in humpies and sucker bashing and they were really intrigued at both of those expressions, particularly sucker bashing.

It’s the practice of removing tree regrowth of eucalypt.

Malcolm: I had only two cases there.

One was acting for the State Energy Commission of Western Australia against Griffin Coal.16 My opponent on that (and many other cases, until he became the Chief Justice) was David Malcolm17 who was a contemporary of mine, a fellow classmate at UWA Law School. I enjoyed being opposed to David, because I knew I was in for a tough battle, but always courteous and polite. When we finished our appeal, we were told we had the right to have lunch at the House of Lords. So,

“...Well, we’ve had a look at your career, and you are practising as we’d expect a silk to practise. You are getting briefs from all over from the amalgam, from practitioners, and you are always available. We’ll make an exception for you, and we’ll make you silk.”

David and I walked into the House of Lords dining room. We found we were the only ones in this particular dining room, which had been set aside for counsel. Along came a waiter and he said, “What wine will you have?” And David said, “Well, what wines do you have (expecting a wine list)?”

The waiter said, “Red or white.” David and I just looked at each other. Not a great choice. After that Privy Council appeal, and a diversion to ski in France, I came back to Australia and did a High Court tax appeal, opposed to Murray Gleeson QC (later the Chief Justice of the High Court).

It was stimulating (although we lost the appeal). Then I returned for a Court of Appeal appearance in Western Australia.

Burt C.J. was the presiding judge. I found that experience even more stimulating.

When Burt CJ asked questions, you knew that there was usually a design behind the question. He’d lead you down the garden path and you knew you had to be careful about agreeing to anything he suggested, because the next step could mean you were gone. He kept counsel on their toes.

Martin: Famous story of the counsel who stood up for the appellant before Burt and said, “I’m here for the Crown,” and Burt leant forward and said, “Which Crown?”

That was the end of that appeal.

Malcolm: Yes, which Crown was the question. Was it the Crown in the State of Western Australia or the Crown in Australia?

Martin: The shark rescue. That’s not an improbable story. Those of you who don’t know it, Malcolm was due to go down to the beach and was delayed going to the beach on the day that Ken Crew was taken, in front of the Surf Lifesaving Club at North Cott.18 And you arrived at the beach after Ken had died on the beach. Taken in a metre and a half of water by a great white. Where the shark went under swimmers, one swimmer that I know, it grazed his stomach with his fin,

37

because she played a large part in my fulfilling the role.

Martin: And you didn’t draw a salary for that time period?

Malcolm: I decided at the very beginning that I didn’t need it and I didn’t want it to appear that I was taking on the position for money. I think the salary was $480,000 a year or thereabouts, so I said at the outset I will donate this income for the three years of my term, to several charities that we thought were very worthy; and that is what I did.

Martin: You are very much involved in philanthropy. Do you see it as separate from the law or part of law even to this day of giving back to the community in capability?

The Honourable Malcolm McCusker AC QC with his daughter Mary at the High Court welcome ceremony for The Hon Justice James Edelman

just tore the skin off his stomach. It went under him seeking out the person closer to the shore. In 1997, a great white had attacked a surf ski off South Cott. Two of Malcolm’s friends were paddling. So, Malcolm, being Malcolm, went out with another paddler on a double ski to rescue them, notwithstanding that the shark was still there. Did instinct take over before common sense kicked in?

Malcolm: Yes, it did. Common sense kicked in when I got back to the beach.

Later on, I was told I was to receive a bravery award – really, some would say, an award for stupidity. When we got out there to rescue Brian Sierakowski, a fellow surf club member and legal practitioner, he had blood streaming from his face where the shark had grazed him and, for the first time I can ever remember, Brian, who was known for his verbosity, was totally silent, except to call out, “Help! Help!”

Martin: As Brian tells the story now, the shark was about 27 metres long!

Malcolm: It certainly grew with each telling. He went on a lecture tour. The story became more and more dramatic. It was as if Brian had walked across water to get to shore.

Martin: The surf ski was bought by Cicerello’s, wasn’t it? It’s up on the wall.

Malcolm: Yes, I think it’s still up there, in Cicerello’s.

Martin: Extraordinary thing to do.

Malcolm: I’m quite sure that other surf 38 | BRIEF DECEMBER 2021

club members would have done the same.

Malcolm: When we got back to the surf club after the rescue, Brian was interviewed by a couple of TV people.

One TV reporter said, “Sierakowski, that name rings a bell?” Brian said, a bit testily, “Don’t you read the papers, son?” Brian is a good illustration of the saying that the price of justice is the price of continuous publicity.

Thaw-Thaw: Can you tell us about the call that you received one fateful day from Colin Barnett?

Malcolm: Oh, yes. Well, I had a call to go to see Colin Barnett in his electoral office in Nedlands, and I thought, well it must be about a case that’s brewing. I was very busy at the time. I went along, and he sat me down and said, “Malcolm, I’d like you to think about becoming the next Governor of Western Australia.” It was just out of the blue. He said, “I know you’re going to say no.” He was right, I was. And he said, “Just promise me you’ll think about it over the weekend and talk to Tonya”. So, I did, I talked to Tonya (my wife) and I decided to accept. She didn’t talk me into it, but she did say, “Look, you are very keen on not only being philanthropic, but also to encourage philanthropy. As Governor you can influence the wider community.”

I was quite dumbfounded that Colin had offered me the position. No one had ever suggested to me that I was going to be the next Governor. But Tonya and I were glad we took the position. I say ‘we’,

Malcolm: Well, I do think lawyers could and should do more philanthropically, although they do give to the community in ways that aren’t fully perceived by the public. I’ve been involved, and I know your firm has been involved, as others have, in pro bono work, which is giving back to the community; but lawyers could do more. Town & Country Building Society – I was one of the founding directors with my father at the age of 27 — went very well.

We were eventually bought out for a large sum by ANZ bank, so for the first time we had considerable funds to give to charity.

My father had always encouraged giving back to the community, but we didn’t have that much to give until then. We decided to give back to the community. When we started, the major donation was to medical research, which is still a large focus of the McCusker Charitable Foundation that I have established.

Martin: And especially medical research into Alzheimer’s disease. That’s because of a personal experience within your family?

Malcolm: Well, that’s correct. My mother suffered from Alzheimer’s, and we appreciated what a huge toll is taken on those who have to care for Alzheimer’s patients and the enormous burden on them. So, we got involved in both Alzheimer’s research, supporting one of the major researchers to this day in our State, Professor Ralph Martins, and also in providing means whereby carers for Alzheimer sufferers could be helped. The McCusker Nurse programme has just celebrated its 10th anniversary. They do a great job for carers, who can call upon these nurses, who go to them and give them a lot of assistance, not just nursing but showing them what to do and where to go. We have had many letters from carers who have been helped in this way.

Martin: We had the experience of

watching one of the finest legal minds I’ve ever seen, Geoffrey Kennedy,19 get Alzheimer’s. It totally changed the personality of a very quiet, modest man.

His son’s speech at his funeral explained how he was a different person.

Malcolm: Sir Lawrence Jackson, in the end, also suffered from Alzheimer’s. David Malcolm didn’t have Alzheimer’s, but he had something which was akin to it, affecting his brain. I went to see him a couple of times when he was in the nursing home, and it was tragic. The second time I went there with a couple of his former fellow students from law school, he didn’t recognise us.

Martin: Let’s go back to the law. What do you see as the change? You’re now 59 and a half years into practice, how do you read the practice of the law nowadays?

Malcolm: There seems to be a lot more high pressure, despite the technology which was supposed to make practice easier. I’ve always put myself through pressure but there were times when the Law Society members, back in the early days, could relax and go for a drink and socialise with each other. That doesn’t seem to happen much now. Everyone is busy, and some young lawyers are, I believe, overworked — slaves to the “billable hours” dictate.

Martin: Too many bloody emails today!

Malcolm: You rightly touch on that. In those early days, and until comparatively recent decades, people didn’t trundle down to the law courts with huge volumes of books and huge lever arch files of papers, because you couldn’t afford to produce all that. If you dictated a letter the typist couldn’t get it wrong, because we had nothing to fix it with. It had to be right first time.

Martin: I once fell asleep dictating.

Malcolm: So, there has been a great change, for good and for bad, because you can have much more access to information you couldn’t get back then. There was no internet, no photocopiers in those early days. It all sounds terribly crude now. If you wanted to produce, say, High Court appeal books, you had what they called a Gestetner machine and the typist would type everything onto a waxed sheet, which you would then turn the machine, by hand in order to produce the number of pages needed.

Martin: They came out purple.

Malcolm: Sometimes they did.

Martin: The late Alan Goldberg20 referred to unpublished judgments as purple gutsers because he reckoned in his career

he’d go down and his opponents would pull out this unreported decision in purple and he’d come a complete gutser as a result of it. Jamie Edelman,21 as a Judge in the Supreme Court, said that in every case he knows what the decision is, but he’ll never deliver it ex tempore because there’s no such thing as a dusty judgment sitting in the back corner of the Western Australian Supreme Court library. Everything is on the internet, so you’ve got to go away and make sure it’s right. How do you think the junior practitioners should cope with this increased pressure of immediacy of response to emails and the demands of massive discoveries, the pressure of litigation?

Malcolm: Well, I don’t know how they do cope with it frankly. It’s a very changed world, this requirement that you respond to an email at once. What drives me almost mad, perhaps I am antediluvian, is that you send someone an email, then they send one back to you saying they’ve got it. Well okay, I know you’ve got it, the machine told me that. So, when you’re going through your emails you’re saying, who said that?

But discovery has also become ridiculous.

Something must be done about the extent of discovery, because it was never so large once. Sometimes discovery is given, even though it is in breach of the requirement of the rules, deliberately so that the person who receives the discovery is deluged with documents, irrelevant documents often.

Martin: The avalanche theory – hide the needle in the haystack and hope they won’t find it.

Malcolm: Correct. Martin, you haven’t mentioned one case that you and I appeared together in as fellow counsel.

Martin: Malcolm, you’ve done an enormous amount of pro bono high profile cases, the acquittal on appeal of the Philip Walsham convictions, the three young blokes, and Mallard was hugely important, rectifying a gross miscarriage of justice. The case you’re referring to is the Mickelbergs’ second application to the Court of Criminal Appeal.22

Malcolm: Third.23 Martin: Third. I only had a guernsey on the third, you were in there before me.

Malcolm: Yes, but you were on the winning team!

Martin: Mallard was a huge case.

Malcolm: Mallard was a case undoubtedly of injustice and wrongful conviction.

Ultimately it was found who the true murderer was. So, Mallard was not just acquitted. He was definitely innocent.

When I took his case with James Edelman, now a High Court Judge, as my junior (he

juniored me also in the Mickelberg case) before the Court of Appeal in Western Australia24 there was undoubtedly hostility toward the appeal from the outset. Jamie was the first to notice. I had expected, when I opened the case for the appeal, that there would be immediate hostility towards the prosecution, asking “Why wasn’t all this disclosed?”, because there was a lot of material which had not been disclosed at Mallard’s original trial. Towards the end of the appeal hearing, Jamie Edelman said he felt we were going to lose, despite the strength of the appeal. The appeal went for an extended period of about ten or eleven days. At the end of it, the Court adjourned, and delivered a unanimous decision, dismissing the appeal, in less than ten working days. We (the appeal team) were shocked.

Martin: John Quigley25 was involved as well, wasn’t he?

Malcolm: Well, Quigley wasn’t involved as counsel, but he was certainly involved in getting the material which enabled the case to go to the Court of Appeal. I’d take about two days to tell you the whole saga, but we couldn’t believe that this appeal had failed, and so quickly. I said, “Look, we’re going to go to the High Court and to win it,” which was a bit rash, but I had to say something to lift their spirits. To that, Jamie said, “Well, you know that the odds of getting special leave now, are statistically, about five or six per cent.”

Anyway, we did get leave. We went to the High Court. I led Jamie. We had the support of three pro bono lawyers from Clayton Utz. Cynthia Sargent (now, sadly, deceased) was one. She was brilliant and meticulous. None of them had ever done criminal work before. All were absolutely committed and diligent. They were so incredibly hyperactive in the High Court – passing notes all the time to Jamie, who acted as fielder of the notes, passing some to me. Cynthia said to me afterwards, when we finally succeeded – we won five/nil in the High Court – “I’ve never done criminal law before, but I’ve got to tell you that this was the most rewarding experience of my entire legal career.” I remember, going back to my early days at law school, that on one occasion the then Dean, Professor Beasley,26 said to us, words which stuck in my mind: “You law students are privileged, because you are going to embark on a noble career.” He paused, and said, “It’s noble because it’s noble to seek justice and it’s noble to correct injustice.” And I’ve always thought they were quite inspiring words – “noble to correct injustice”.

Fabienne Sharbanee: Malcolm, that was the question I had for you, picking up mainly on Mickelberg and Mallard, but all of those clients you acted for, for quite 39

Everyone is busy, and some young lawyers are, I believe, overworked -- slaves to the “billable hours” dictate. some period of time until you succeeded, what is it that drives you to stick with someone? Is it the gut knowledge that you’re coming from the right side of the fence?

Malcolm: It’s stubbornness perhaps, but stubbornness born of a conviction, based upon close and objective examination of the case. Take Mallard. I was asked to look at his case pro bono by the British Consul (I was his honorary legal adviser) Mallard’s parents were of British stock.

They had approached the British Consul via their local member. I read the papers and said, “He’s exhausted all his rights of appeal.” This was about 10 years after he was imprisoned, I said, “it’s extraordinary that he was ever convicted on this evidence. You’ve got to get fresh evidence if we have any chance of getting back to the Court of Appeal for a review.” That’s where John Quigley came in because John Quigley, to his great credit, and defying convention, managed to get access to the DPP’s file. I still remember John ringing me excitedly one Saturday morning saying, “I’ve just discovered this previously undisclosed report. What do you think?”

I said, “That’s going to get us back to the Court of Appeal.” And it did – by reference from the then WA Attorney General; Jim McGinty.

Fabienne: I guess I look at it, having been involved in legal work with you, you had run that race with the Mickelbergs for fifteen years, and obviously Lewandowski’s affidavit significantly changed the picture.

So, we suddenly had a hook that we didn’t have. What was it before they got that?

Malcolm: My first encounter with the Mickelberg case was walking down Hay Street with Henry Wallwork QC.27 We were talking about the jury decision in the Mickelberg case. I said, “Henry, there’s something wrong with that case.” He said, “Why?” I said, “Look, these fraudsters (whoever they were) were very clever. They wouldn’t go spilling their beans as alleged by the police.” In those days, verbals were used frequently by the police. The police alleged the Mickelbergs had confessed.

Nothing signed. It didn’t sit right. Several years later, after they’d exhausted their rights of appeal, and indeed gone back for a further appeal and failed, Henry rang 40 | BRIEF DECEMBER 2021

me and said, “Do you remember that conversation we had?” I said, “Yes,” and he said, “Well, are you prepared to take on a pro bono appeal to the High Court?”

Which I did, for Peter. His appeal was successful in the High Court.28 One of the Judges, Justice Deane,29 was wavering as to whether to simply allow the appeal and quash the conviction, it was that close, but they sent it back to the WA Court of Appeal which said no, thumbs down again. And it just went on. There were three Attorney Generals’ references back to the Court of Appeal. On the second last one, we were certain we had it won.

The police had repeatedly denied Peter Mickelberg’s allegations that the police had beaten him up, and Justice Wheeler30 said to me, “Well, Mr McCusker, your clients said that they went and got a medical examination after the event.” I said, “Yes.” “Why wasn’t that evidence given at the trial?” I said, “I don’t know, I wasn’t at the trial.” I turned to Ray Mickelberg, and said, “Ray, go and get that doctor if you can.” He raced off, and caught the doctor.

He was about to go and play golf, and was not happy but he got his notes of his medical examination and brought them to Court and I sought to introduce that evidence. The Court said, “Well on what basis do you seek to bring this evidence at this stage?” I replied, “In the interests of justice, your Honours, to prove that he was beaten.” So, we got the doctor’s evidence in. Peter did come back, he had marks on his body. I thought that since the police had sworn that they’d never beaten him, and had claimed that the alleged unsigned confessions were voluntary, we were going to win. Even The West’s experienced Court reporter, who hitherto had been a strong believer that the Mickelbergs were guilty, told me he thought we must win.

But in its reserved decision, the Court said – well, yes, it looks as though he was actually beaten, but not to the extent that Peter has alleged! We could not believe it. Martin Bennett came to Court for Peter on the third appeal. Do you remember the blowing up of ex-detective Inspector Hancock by the bikies, obviously it was the bikies?

Martin: Billy Grierson.

Malcolm: Yes, and when Hancock died, when he was blown up, his 2 I.C. in the Mickelberg investigation, Lewandowski, came forward and confessed that all the alleged verbal confessions were fabrications. We won the appeal but even then, only by a majority. Michael Murray was still against us. Chris Steytler32 was the President of the Court of Appeal.

He gave what I consider a brilliant and thorough decision. It was so brilliant that for the first (and only) time in my life (perhaps I should have done it more often)

I wrote him a note of congratulations.

Years later, when Tonya and I met Chris and his wife for lunch (after he retired) one day, Chris told me that one of the features of the Mickelberg appeal he recalled was the alleged forgery of Ray’s fingerprints, and said with a slight smile, “I get a Christmas card every year, anonymously, with a fingerprint on it.” Experts had given evidence to prove they were, or could have been, forged, but the Court just didn’t want to accept it. I remember David Ipp, sitting on the second last appeal, saying to me, “But Mr McCusker, if what you’re saying is true, then this is not just a conspiracy between Lewandowski and Hancock. A number of other police were involved.” I replied, “Yes. Has your Honour read the report of the Fitzgerald Royal Commission into Police Corruption?”33… But to answer the point you’re making; why did I stick with it? It is because I had looked objectively at the evidence and I concluded that there had been a miscarriage of justice, which had to be corrected.

Martin: The criminal justice system is an appalling system where people spend millions defending themselves. They get no recompense whatsoever, they’re financially destroyed, and now we’ve got this tremendous problem where people are sitting in jail, they can’t get bail.

The length of time to get to a trial is so extraordinarily long. It’s a ruinous period.

And the answer: we haven’t enough courts for judges to sit and hear serious cases.

They’re fighting over courts because we didn’t build a big enough building.

Thaw-Thaw: The final thing that I wanted to touch on, you have certainly shared aspects of your journey and I think we will all agree that it’s been spectacularly successful, but we’d be interested in knowing what success means to you.

Malcolm: Oh, success generally means having the love of one’s family, and good friends. But alongside that, of course, success also means knowing that you’ve done the best you can. Look, none of us is perfect. I can think back on cases where I think I could have done that one better. I think of one case, when I probably asked one question too many.

That can happen. The important thing in examination and in cross-examination is knowing when to stop. But success is when your judgment has been vindicated, and that injustice has been corrected, and that you have played a part in that.

On top of that, hopefully, encouraging other people to be more philanthropic and to help others. I think that’s terribly important. When I retired as Governor, I returned to practise law. That raised a lot of eyebrows amongst my contemporaries.

They think I’m crazy, or past it, or both.

They are probably right, but I love the law. It is tough, a hard mistress, but a very engaging one, and if you can use whatever skill you have acquired, to help others, that is very rewarding. To give you an example: On my return to practice, a lady rang me. I didn’t know her. She said, “Can you help my husband? He’s been convicted, wrongfully, of a sexual offence.” She said, “My husband would never do this.” She told me the story. I agreed, pro bono, to look at the papers.

I said there was nothing wrong with the judge’s directions. “I’ve looked at the transcript, but where’s the evidence that your husband gave?” She said he didn’t give evidence. I said, “Why not?” “Oh, his counsel said not to.” I said, “What?

So, it was the complainant’s word against no-one’s?” Anyway, to cut it short, we successfully appealed.34 It’s tough as you know to win, on the ground of unfair trial due to the incompetence of counsel, so, that was a gratifying outcome. By the way, I think it’s high time that this country got rid of the principle of advocate’s immunity from suit for negligence. I can’t see any justification. It’s been abandoned in the UK, in New Zealand and in Canada. There should be a concerted effort to get rid of that common law immunity in Australia.

Any lay person to whom I explain it, any non-lawyer says, “What? But doctors, accountants, a host of other professionals can be sued for negligence.” “Yes, but not advocates”. It makes us look bad. And, while I am still on a hobby horse, I think we as a profession should also urge for the appointment of a judicial commission, so that people who’ve got a complaint against a Judge may go to a Commission and lodge a complaint. There are two reasons for endorsing that: first of all, it will give the public more confidence in the judicial system and, secondly, I think it would, for (happily only a very few judges) be a deterrent against being discourteous, irresponsible in their language or in delaying a decision.

Nathan Ebbs: One of the criticisms, Malcolm, that you see publicly is that very well-to-do Australians aren’t putting money back into philanthropy and those causes, and one of the things that we look at when we look at you, there’s got to be something in that because at no point have you said, “Well, I have succeeded in that field,” the law for example, “and so I’m not going to do anything else. I’m just going to rest on my laurels.” Getting in a kayak and paddling out to save somebody, that’s you.

And I wonder where does the drive come from?

Malcolm: Well, I’m not a psychoanalyst, but I think a large part of it comes from my family upbringing, my childhood. My parents, although they weren’t extremely

religious, they had strong Christian principles, and imparted them to me.

They always said that you’ve got to show charity by example, and give to others in need. Within their limited means, they did help other people. Actually, they were truly Christian, I suppose, because in those days the Church was a pretty central thing in the lives of many, and they met in the church choir. Bob Wallace, my master, was also very philanthropic. He was a strong member of Legacy, which looked after the widows and children of deceased war veterans. And I know that the legal profession had then, and I think still has, a strong view that people less fortunate should be helped, particularly in the legal sphere. Well before the Legal Aid Commission (which I chaired for 27 years when I was in my junior years), the legal profession had a system whereby anyone who had a meritorious case and was in real need of legal assistance, but couldn’t afford it, would get it pro bono. You may remember that Red Burt appeared pro bono for Beamish in his original trial35 and his appeal to the High Court. He was unsuccessful, and he was always upset about that because he thought, rightly, that Beamish should have been acquitted.

You probably don’t know what I’m talking about.

Martin: I do.

Malcolm: You can tell the others later. But it was a ‘Trial of the Century’ at the time, and it has much later been established that Beamish was wrongfully convicted.

The trouble in those early days was that police verbals were the order of the day and you didn’t dare, as counsel, be too critical of the police. I was told by one the top defence lawyers back then to be very careful about cross-examining police and suggesting that they’ve done something wrong, because it will go against you.

Martin: There is still, perhaps, an element of ‘ends justify the means’: we’re convinced you’re guilty, so it doesn’t matter what means we use to secure your conviction.

Malcolm: It was once called, absurdly, ‘noble cause’, by some — only a few.

Okay, we know he’s done it, we’ve got a gut instinct that he’s done it, so what we will do is fit him up. Avon Lovell wrote a book about that – “The Mickelberg Stitch”.

Talking about things that need to be remedied, one of them is that something should be done about those police officers who cross the line. Nothing happened to the police in the Mickelberg case, or (so far) in Mallard’s case, or Austic.

Martin: Same with the police in Rayney’s case.

Malcolm: Yes, that’s right.

Question: Malcolm, how do you deal with pressure? What advice would you give to people?

Malcolm: Ron Harmer went down to the Court once to tax some costs for a case that I’d done. He told me that the Registrar said to him, “Well, what other disbursements were there?” Ron told me he replied, “I think, a bottle of red wine, to cope with pressure.” But I hasten to say I do not suggest that drinking red wine necessarily relieves pressure. The problem with pressure is if you can’t cope with it, obviously. Pressure is good for you.

Pressure makes you work. To cope, I think you need to exercise, if possible. Martin, I know, would agree with that. And I think you need to now and again step back and say, “Look, this is pressure, but I can’t let it get to me because that will affect the work I do for the client.” You mustn’t let pressure, in effect, prejudice your client’s case.

Question: Malcolm, quick question on being bold. When do you know or how do you find it within yourself to be able to take that bold step that makes you test the boundaries, because we’ve heard these stories from you where you’ve clearly done something unprecedented?

Malcolm: Well, it probably comes back to the fact that, as I said earlier, I’ve read quite a lot of books about the art of the advocate. In fact, one was called exactly that. And the message that comes through is you must be bold, provided you’ve got right behind you. Fortunately, these days, it doesn’t happen as much as it used in the past, but if a judge is nasty to you, don’t knuckle under. Just stand up for yourself, not being rude, not being silly, but do stand up. As counsel, you are on your feet, not your knees.

Martin: It gets back to what you said at the beginning, preparation is the key.

Malcolm: Ah yes. What do they say about property – it’s position, position, position.

Well, trial is preparation, preparation, preparation. You’ve got to be ready to be quick on your feet, but you won’t be quick on your feet if you haven’t prepared.

Question: Malcolm, we touched on the fact that law and justice aren’t necessarily the same thing, how would you suggest that as advocates we could advocate for justice when the law is against us?

Malcolm: Well, you can do it of course and I think it’s important, that if you think the law is in need of correction you should make submissions to the Law Reform Commission, to the Law Society, and perhaps submissions to the Government.

We’re blessed at the moment with a very justice-minded Attorney General in John Quigley. The Government, under his 41

guidance, is in the process of passing a Bill to allow a second right of appeal, directly to the Court of Appeal rather than via the Attorney General.36 Under the present system, an Attorney General doesn’t have to give any reason, or even a response, to a petition for referral of a case of alleged miscarriage of justice to the Court of Appeal. A decision on Scott Austic’s first petition was delayed far too long – then rejected. It was only when a new Attorney General, John Quigley, was appointed, that a second petition was dealt with expeditiously, and his case referred to the Court of Appeal. So, I think that this new system (which has already been legislated in South Australia, Tasmania and Victoria) will be an improvement because it will give people who are wrongfully convicted an opportunity to go directly to the Court of Appeal. I read a very disturbing report once by a former Judge of the Supreme Court of Appeal in New Zealand, who has also been a prosecutor in his time. He said that in his view about four to five per cent of prisoners were wrongfully convicted.

That’s frightening. It was Martin Luther King who said that “injustice anywhere is injustice everywhere.” And it’s very true.

We can’t sit back and just say, “Oh well, too bad, it’s only four or five per cent.”

Question: So, what does it make you think then when you can get three against you in the Supreme Court and you go to the High Court, and you get five for you? What reaction do you have?

Malcolm: It speaks for itself, doesn’t it?

Martin: Malcolm and I had a case against each other, which I started as an articled clerk, and . . .

Malcolm: Oh, yes, did you have to bring it up?

Martin: Malcolm ended up with five judges in his favour, and I ended up with four in my favour and we won.

Malcolm: When you say you won, David Malcolm won.

Martin: It was Geoff Kennedy’s argument; David Malcolm took the credit for it. Kennedy won at first instance before Wickham and then got appointed to the Bench. David Malcolm went before the Full Court and lost spectacularly three/nil, but we went to the High Court, and we won three/two. Can I say, it’s the only time I’ve seen Malcolm temporarily lost for words because he’d done enormous preparation in the respondent’s appeal and he got up in front of the High Court and said, “If this is a case for the sale of goods, there’s no case at all in the history of England and Australian law that supports the appellant’s position. And if it’s a case for services, there’s only one case.” And so, Harry Gibbs,37 in his nasally Queensland

42 | BRIEF DECEMBER 2021

high voice, said, “So what, Mr McCusker!

There’s a lot of law in Australia for which there’s no authority.”38

Malcolm: Yes, I was taken aback. It was a novel finding, that an “equitable lien” defeated a liquidator’s claim based on a preference. Francis Burt saw me in the street, about a month after that High Court majority decision. He came up to me and said, “Malcolm, that was a most mischievous decision of the High Court.”

Martin: Thank you very much for your time, Malcolm, we deeply appreciate it.

We spoke to Tonya and asked what would be an appropriate gift for you, and Tonya said red wine. What we are also doing is donating to the McCusker Foundation.

But this is for you. Lawyers are like wine.

Some of them leave a bitter taste in your mouth, a lot of them are bland, not many of them are cheap and not many of them are value for money. Some wines, however, are spectacular. Some wines with age develop a maturity and a complexity that’s to be admired. This is a wine that was harvested in 1960 in South Australia in a particularly wonderful vintage and it’s a Penfolds Magill 1960. It was bottled in 1961, the year you were admitted, and it was such an outstanding wine that Max Schubert, the legendary founder of Grange signed it. The appropriate wine for you in your 60th celebration!

Malcolm: Thank you very much. Martin and I go back a long way, 40 years, and I’ve greatly enjoyed our professional and social relationship. It’s great to be here. I hope I’ve given those present some ideas, some thoughts about your future career.

You started by asking what brought about my love affair with the law. Well, I think it is really a love affair. If you don’t love your profession, you’ve really got to get out of it, because it’s not good for you and it’s not good for your client. You can do a lot of good for people as a practising lawyer in many different ways, and I’m sure you’ve had the experience, that people look up to you for what you do and can do for them.

So, thank you all for being here and thank you for listening so patiently.

7 Bank of New South Wales v Ronald W. Brown [1981] WASC 290 (22 October 1981) (Burt CJ, Wickham J, Brinsden J) 8 Bank of NSW v Brown [1983] HCA 1; (1983) 151 CLR 514 (8 February 1983) 9 Sir Albert Asher Wolff KCMG served as a Judge of the Supreme Court of Western Australia from 1938 to 1959, and as the 9th Chief Justice of the Supreme Court from 1959 to 1969.

10 Mallard v The Queen [2005] HCA 68; 224 CLR 125 11 Michael Murray served as a Judge of the Supreme Court of Western Australia from 1990 to 2012.

12 William Pidgeon served as a Judge of the District Court of Western Australia from 1970 to 1977; Chief Judge from 1977 to 1982 and Justice of the Supreme Court of Western Australia from 1982 to 2001.

13 Australia Act 1986 14 Edith Mary Maud Cameron and Others (Appeal No. 29 of 1985) v Lady Barbara Marshall Murdoch and Others (Western Australia) [1986] UKPC 9 (12 February 1986) 15 Metro Meat Limited (Appeal No. 31 of 1984) v Fares Rural Co. Pty. Limited Rachid Fares (Western Australia) [1985] UKPC 1 (21 January 1985) 16 Griffin Coal Mining Company Limited v The State Energy Commission of Western Australia (Western Australia) [1984] UKPC 52 (10 December 1984) 17 David Kingsley Malcolm AC QC served as the 12th Chief Justice of the Supreme Court of Western Australia from 1988 to 2006.

18 On Monday, 6 November 2000, 49-year-old Ken Crew was attacked at North Cottesloe beach by a great white shark in waist-deep water just 30 metres from the shore, as he and fellow swimmers were exiting the water.

19 Geoffrey Kennedy served as a Judge of the Supreme Court of Western Australia from 1981 to 2001.

20 The Hon. Alan Goldberg AO QC served as a judge of the Federal Court of Australia from 1997 to 2010.

21 James Edelman served as a Judge of the Supreme Court of Western Australia from 2011 to 2015. He was appointed to the Federal Court of Australia in 2015. In January 2017 he became a Judge of the High Court of Australia.

22 Mickelberg v The Queen [2000] WASCA 163 (15 June 2000) 23 Mickelberg v The Queen [2004] WASCA 145 (2 July 2004) 24 Mallard v The Queen [2003] WASCA 296 25 The Hon John Quigley was appointed Attorney General of Western Australia in 2017. Prior to that, he was a member of the Western Australian Parliament for 16 years, and a lawyer for the Western Australian Police Union for 20 years.

26 The University of Western Australia Law School was born in 1927. Professor Frank Beasley became the first Dean and the only full-time staff member.

27 Henry Wallwork was appointed QC in 1980. He served as a Judge of the Supreme Court of Western Australia from 1989 to 2002.

28 Mickelberg v The Queen [1989] HCA 30; 167 CLR 259.

29 Sir William Deane AC, KBE, QC served as a Judge of the High Court from 1982 to 1995, when he resigned to be appointed Governor-General.

30 Christine Wheeler served as a Judge of the Supreme Court of Western Australia from 1996 to 2010.

End Notes

31 Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13.

1 Sir Francis Burt AC, KCMG, QC served as Judge of the Supreme Court of Western Australia from 1969 to 1977, as the 11th Chief Justice of Western Australia from 1977 to 1988, and as the 27th Governor of Western Australia from 1990 to 1993.

32 Christopher Steytler AO QC served as a Judge of the Supreme Court of Western Australia from 1994 to 2009.

2 John Toohey AC, QC was appointed a Judge of the Federal Court of Australia in 1977. He served as a Judge of the High Court from 1987 to 1998.

3 Sir Ronald Wilson AC, KBE, CMG, QC was SolicitorGeneral of Western Australia from 1969 to 1979. He served as a Judge of the High Court from 1979 to 1989.

4 Oscar Negus was a Judge of the Supreme Court of Western Australia from 1962 to 1969.

5 Conroy, Warn & Sisson v R (1976) WAR 91 6 Bank of New South Wales v Ronald W. Brown [1981] WASC 30 (26 February 1981) (Wallace J)

33 The 630-page Fitzgerald report was tabled in Queensland Parliament in July 1989. The Inquiry changed the policing and political landscape not only in Queensland but across Australia.

34 Jeffery v The State of Western Australia [2018] WASCA 219 35 Beamish v The Queen [1962] WAR 85.

36 Criminal Appeals Amendment Bill 2021, introduced 11 August 2021 by Mr J.R. Quigley (Attorney General).

37 Sir Harry Talbot Gibbs GCMG, AC, KBE, QC served as a Judge of the High Court from 1970 to 1981, and Chief Justice from 1981 to 1987.

38 Hewitt v Court & Evans (1983) 149 CLR 639

A Brief Introduction to

The Law Library

by The Hon Justice Stephen Hall

D

id you ever wonder what happened to the old Supreme Court Library? Many in the profession will remember that quiet corner of the Supreme Court building.

Many retreated there during an adjournment of a difficult trial or appeal in the hope of finding answers. The Library closed when the Legal Practice Board could no longer bear the financial burden. But that was not the end of the story.

The collection of the Supreme Court Library was combined with that of the Department of Justice and, in 2016, the amalgamated library became The Law Library. The Law Library is jointly funded by the profession and the Department of Justice, the contribution of the profession being derived from annual practising certificate fees. It is open to members of the profession, as well as officers of the Department and the courts.

An advisory committee, presently chaired by me, includes representatives from the Legal Practice Board, the Law Society and the WA Bar Association.

The Law Library is located on the second floor of the David Malcolm Justice Centre at 28 Barrack St. Practitioners regularly visiting The Law Library will find that their pathway is made much smoother with a Law Library Access Card. This card will allow access directly to the second floor, rather than having to go via the Department of Justice Reception on Level 23. Access cards are available at no cost to all members of the profession who have a current practising certificate.

The amalgamated collection contains hard copies of all significant law reports, significant journals and a large collection of legal texts.

This includes many of the more obscure and difficult to find items. The hard copy collection is supplemented by numerous on-line services, which are available for use by authorized users (though only at terminals within the library). The available resources can be browsed at The Law Library website.

Inter-library loans can also be arranged, providing access to resources in libraries nation-wide.

Librarians have created 27 guides to resources in Legal Practice Areas covering key legal topics from Administrative Law to Workers Compensation. The comprehensive guides provide links to relevant legislation, case law, commentary, textbooks, journals, alerting services and reference materials contained in subscribed resources, as well as linking to free web resources. Case law is contained in a hyperlinked A to Z index.

Librarians are also available to carry out research and to provide cases, articles and other material on request. Country practitioners are encouraged to use the services provided by The Law Library. Zoom meetings can easily be arranged.

In addition to the formal CPD Sessions on legal research regularly hosted by The Law Library, legal practitioners can also now avail themselves of informal, short and targeted research training sessions, one-on-one with

The Law Library website features a “Practice Areas” section including links to relevant legislation, case law, commentary, textbooks, journals, alerting services and reference materials contained in subscribed resources, as well as linking to free web resources. a Librarian. In these sessions practitioners can be guided to the best resources for their particular research question. Sessions can be conducted in person or via Zoom/Teams.

More information about library services can be found at The Law Library website or by sending an email to: llwa@justice.wa.gov.au.

Finally, I would like to take this opportunity to acknowledge the dedication and hard work of Lynne Lyon, the Manager of Library and Information Services, and also, in effect, the head librarian at the Law Library. Lynn will shortly retire after devoting more than 40 years to public service, most of that as a law librarian. She managed the amalgamation project and has been responsible for the delivery of high-quality information services to, literally, generations of lawyers and judicial officers.

43

modern

corruption

T

hursday, 9 December is International Anti-Corruption Day 2021. In this issue we mark the occasion with a deep dive into the state of corruption today.

44 | BRIEF DECEMBER 2021

Public Sector Corruption

and the Corruption and Crime Commission

by Matt McKeone Communications Coordinator Corruption and Crime Commission

Public sector corruption is a global problem and we are not immune in Western Australia International Anti-Corruption Day is marked on 9 December - a day to expose corruption around the globe, and to recognise that no country, region or community is immune to this crime.

Corruption is both a global and local problem.

The UN Secretary General has estimated the annual cost of international corruption is $US 3.6 trillion in bribes and stolen money.

Each year, Transparency International publishes a corruption perception index, ranking 180 countries and territories by their perceived levels of public sector corruption according to experts. New Zealand and Denmark rank equally as number 1 countries least perceived as corrupt. South Sudan and Somalia round out the list as the most likely to be corrupt.

Australia, with the UK, Canada and Hong Kong rank equally as number 11, meaning that we are not perceived as being particularly corrupt.

Australia is low on the corruption perception index, due to our culture, and stable political and judicial institutions.

These institutions are not only essential for good governance, they are vital for a trading nation, such as we are.

International companies and other countries know that they will be treated fairly. Disputes with Australian companies will be resolved impartially by a qualified and independent judiciary. The costs of regulation will be clear. Governmental decisions will be made transparently.

Australia is also one of many countries that has specific anti-corruption bodies, like the Corruption and Crime Commission (the Commission) here in Western Australia.

There is an anti-corruption body in every state in Australia though no comprehensive Federal body as yet.

So what is corruption?

Corruption is a deliberate act of dishonesty, breach of the law, abuse of public trust or power that undermines or is incompatible with the impartial exercise of an official’s powers, authorities, duties or functions.

Various forms of corruption are defined as crimes and are set out in the Criminal Code.

When someone acts corruptly they tend to show a deliberate intent, an improper purpose or motivation, and may involve conduct such as: deliberately failing to perform the functions of office properly; exercising power or duty for an improper purpose; or dishonesty.

Common forms of corruption include bribery, fraud or stealing, forgery, and deliberately misusing confidential information.

The Commonwealth Attorney General’s Office states that “corruption undermines democracy and the rule of law as well as distorting market forces and paving the way for organised crime and terrorism.”

Corruption encompasses serious crimes that can undermine social and economic development in all societies. It distorts the market place, promotes lawlessness and diverts funds from the needy to the greedy. If there is corruption, we all pay, and unfortunately we have felt the impact of corruption in Western Australia.

Vigilance is ever required. As the Commission has reported from time to time, there are risk areas even in our State.

Your house or home is in a suburb serviced by a local council, regulated by the Department of Local Government, Sport and Cultural Industries. The local council looks after your rubbish collection, your local park, the cycling tracks, street parking, public swimming pools and much more.

You may take a bus or train to get to work, provided by the Public Transport Authority.

If you drive, you do so on roads maintained

by Main Roads WA and have a driving license issued by the Department of Transport.

You may be stopped in your vehicle and breathalysed by an officer of the WA Police Force.

Should you visit the State Library, museum or theatre, it is within the portfolio of the WA Government.

You may buy a coffee at a café or vendor who source food under monitoring by the Department of Primary Industries and Agriculture and inspected by health inspectors.

When you go to a licensed restaurant or bar, that venue will be subject to Department of Racing, Gaming and Liquor regulations.

If you go to hospital, it will likely be a public hospital. The list goes on.

We expect our day to run smoothly, and we all deserve a public sector free of corruption. But what happens when it doesn’t?

In 2019-20, the Western Australian Government employed 207,577 public officers in more than 250 State and Local Government agencies.

What happens when the procurement officer at the hospital is putting public money into their own pocket instead of buying essential supplies or medicines?

What happens when your garbage collector refuses to take your rubbish unless you pay him? What happens when a car you buy is not road worthy because it was passed by a corrupt inspector?

Who is going to investigate these matters and make recommendations to ensure they don’t happen again? Who polices the police?

The Western Australian public sector reaches into almost every aspect of our day.

Public officers fall under the jurisdiction of the Corruption and Crime Commission. So the Commission is the easy answer, but

The Western Australian experience While Western Australia is relatively corruption free, it has not been so continuously, and public sector corruption impacts us all.

45

it is only partly right. The Commission is not the front line in battling corruption, it is often the last line. The front line is ordinary members of the community and public officers who see something not right and speak up.

Your right; your role: say no to corruption Corruption is everyone’s business.

The theme for this year’s International Anti-Corruption Day is “Your right; your role: say no to corruption.” That means all of us. As prominent politician Edmund Burke once said, “When bad men combine the good must associate else they will fall, one by one, an unpitied sacrifice in a contemptable struggle.”

Corruption flourishes in dark corners and secrecy, but surfaces from time to time and when seen, should be called for what it is. Any public officer who asks for a bribe to do the job that they are paid to do.

Any public officer who makes a decision capriciously to benefit themselves or someone else. Any politician enthralled to special interest groups who give large donations. These are observable and we must call it out.

Transparency International recently concluded a study on corruption surveying 60,000 people in 43 countries. One in three people in Europe and Central Asia see corruption as one of the greatest challenges for their countries, but a similar number fear retaliation if they speak out against it. Only one in five bribe payers reported an incident, and two in five who do report, suffer some form of retaliation.

Developed countries such as Australia, have recognised the problem and taken protective measures, such as the Public Interest Disclosure Act for whistle-blowers. Western Australians can also make anonymous allegations of suspected corruption in the public sector to the Commission. However, it still takes courage to witness or refuse to take a bribe and to report the activity.

Everyone in the community must feel confident to express their abhorrence of corrupt behaviour, in any form they encounter, by reporting it to the Corruption and Crime Commission, or the WA Police Force, or the Public Sector Commission.

We need to make it too uncomfortable for the public officer who may be tempted to stray from their duty. This is not a responsibility that just falls on the Corruption and Crime Commission, or other official body.

Every Western Australian has a responsibility not to stand by, but to stand up to corrupt activity. Anyone can make a difference. It’s your right and your role to say no to corruption.

In 2020-21 the Commission assessed over 7000 allegations from public officers and members of the community, by far the largest number of serious misconduct allegations it has assessed in a year.

This large amount of allegations does not mean that there is more corruption in Western Australia. Rather it points to the increased awareness amongst staff in the public sector and the growing community

AntiCorruption Podcast To mark International Anti-Corruption Day, the Corruption and Crime Commission has released a podcast series featuring four episodes exploring the moral dilemma of becoming a whistle-blower, the helpful vs harmful debate around public examinations, the unique working relationship between the Western Australian Police Force and the Corruption and Crime Commission, and how the Western Australian public sector can avoid corruption in challenging times. You can listen to each episode at https://www.ccc. wa.gov.au/about-us/resources/podcasts.

46 | BRIEF DECEMBER 2021

confidence in reporting suspected wrongdoing to the Corruption and Crime Commission.

International Anti-Corruption Day 2021 podcast series

Public Examinations The Helpful vs Harmful Debate

Friday November 26, 2021

The Rise of Global Strategic Corruption

By Philip Zelikow, Eric Edelman, Kristofer Harrison, and Celeste Ward Gventer Published by foreignaffairs.com, July/August 2020. Republished with permission.

Graft is nothing new; it may be the secondoldest profession. Powerful people and those with access to them have always used kickbacks, pay-to-play schemes, and other corrupt practices to feather their nests and gain unfair advantages. And such corruption has always posed a threat to the rule of law and stood in the way of protecting basic civil and economic rights.

What is new, however, is the transformation of corruption into an instrument of national strategy. In recent years, a number of countries— China and Russia, in particular—have found ways to take the kind of corruption that was previously a mere feature of their own political systems and transform it into a weapon on the global stage. Countries have done this before, but never on the scale seen today.

The result has been a subtle but significant shift in international politics. Rivalries between states have generally been fought over ideologies, spheres of influence, and national interests; side payments of one kind or another were just one tactic among many. Those side payments, however, have become core instruments of national strategy, leveraged to gain specific policy outcomes and to condition the wider political environment in targeted countries.

This weaponised corruption relies on a specific form of asymmetry. Although any government can hire covert agents or bribe officials elsewhere, the relative openness

and freedom of democratic countries make them particularly vulnerable to this kind of malign influence—and their nondemocratic enemies have figured out how to exploit that weakness.

Th fight against corruption has generally been marginalized in public and academic discussions of foreign policy. The problem is usually treated as a law enforcement challenge or a good-government issue— something that holds back political or economic development but that does not rise to the level of national strategy.

Today, however, weaponised corruption has become an important form of political warfare. Defences against it must move into the mainstream of international policy work in every vulnerable government, including in the United States.

Corruption Eruption Strategic corruption differs in important ways from the more traditional forms that scholars call “bureaucratic corruption” and “grand corruption.” Bureaucratic corruption is the pervasive conversion of ordinary public service into a “bid for service”: for example, in many countries, simple steps such as getting a driver’s license or passing a building inspection require paying a bribe. This is the sort of graft that hobbles economic development by allowing well-connected insiders to profit from investment at the expense of genuine growth.

Grand corruption occurs when business leaders or major criminals (or oligarchs, who are a combination of the two) directly pay off top government officials in exchange for favours, such as a preferential position or control of a key economic sector that presents

opportunities for high-margin plunder— often banking, telecommunications, or natural resources such as oil and gas. Both forms of traditional corruption erode weak states, leading to breakdown and civil conflict—a process playing out right now in countries such as Algeria, Bolivia, Iran, Iraq, Lebanon, and Venezuela.

In bureaucratic and grand corruption, the payer and the payee are mainly just trying to get rich. In strategic corruption, by contrast, the greed is still there, for at least some of the players, but the corrupt inducements are wielded against a target country by foreigners as a part of their own country’s national strategy. Sometimes, but not always, these schemes entail violations of the law, including by citizens of the target country. In other cases, the conduct may be technically legal but still involves “the perversion or destruction of integrity in the discharge of public duties,” as the venerable Oxford English Dictionary’s definition of “corruption” puts it. For that reason, some corrupt acts are punishable by law; other kinds must be left to the judgment of citizens, if they are brought to light.

The first great effort to counter strategic corruption in the United States sought to do just that. The Foreign Agents Registration Act (FARA), signed into law in 1938, arose from congressional investigations into communist and Nazi propaganda in the United States. The law required representatives of foreign sponsors to register, allowing what the legislation’s authors called “the spotlight of pitiless publicity” to do its work.

In the 1960s, more congressional investigations led to a set of major

47

Parnas and Fruman were working for Dmytro Firtash, a Ukrainian tycoon “who’d taken over the TurkmenistanUkraine-Russia gas trade with the backing of the Kremlin.” ... Naftogaz would agree to write off hundreds of millions of dollars in debt that Firtash owed the company. amendments to FARA, which focused the legislation more on foreign sponsorship of political lobbying rather than propaganda.

For the next few decades, foreign influence peddling remained a relatively marginal phenomenon, characterized by the efforts of a handful of dictators and their cronies to buy influence in Washington and other Western capitals.

Things began to change in the 1990s.

Suddenly, there were many more buyers.

The collapse of communism put more than 20 new governments into the marketplace.

All of them, and many more, were eager to make friends and influence people in Washington, the capital of the world’s sole remaining superpower. There, they found many consultants and lawyers ready to offer high-priced advice. A particularly lucrative new line of business was helping funnel U.S. or global investment to countries newly opened to business. And as the United States and others leaned more on economic sanctions as a policy tool, foreigners needed more and more help navigating the regulatory machinery.

Meanwhile, because of the deregulation of the global financial system during the 1970s and 1980s, it was much easier to move and invest money in all directions and be able to get it back out again.

Open and prosperous countries such as Canada, the United Kingdom, and the United States were becoming the preferred shelters for the billions of dollars that every year are laundered through anonymised companies, real estate investments, and other schemes. As early as 2001, the Organization for Economic Cooperation and Development identified anonymised companies as a primary means for hiding illicit transactions around the world. The United States, lacking national legislation that requires transparency about the “ultimate beneficial owner” of corporate entities, gradually became a financial haven for money launderers, terrorist financiers,

48 | BRIEF DECEMBER 2021

kleptocrats, and smugglers. For that reason, the striking growth of transnational criminal networks during the post Cold War era has aided not just traditional corruption but also the strategic kind; after all, as the journalist Oliver Bullough memorably put it, “the evil money always mixes with the naughty money.”

The cumulative result of all these shifts has been an exponential increase in the scale of U.S. commerce involving foreign interest groups. Americans with connections (real or merely claimed) to decision-makers now enjoy opportunities that can lead to all sorts of corrupt behaviour. Political consultants and former U.S. officials who spend time in the large, lucrative, and lightly regulated marketplace of influence peddling face frequent tests of their ethics, integrity, and patriotism. Some handle these challenges with care and dutiful propriety. Others do not.

Rudy And Dmytro’s Excellent Adventure Perhaps the most prominent case of strategic corruption in recent years is the Ukraine imbroglio that led to the impeachment of U.S. President Donald Trump in 2019. Many Americans may think of this as primarily a domestic political scandal. But it is crucial to understand its foreign roots.

Trump was impeached because, over the summer of 2019, he sought to condition his and his administration’s future relations with Ukraine on Kyiv’s willingness to help him dig up dirt on his political opponent Joe Biden, blame former Ukrainian government officials (and not the Kremlin) for hacking the Democratic National Committee during the 2016 U.S. presidential campaign, and cast doubt on evidence that U.S. prosecutors had used to put one of Trump’s 2016 campaign managers, Paul Manafort, in prison. But the story actually started long before Trump did any of those things, and its primary authors were not Americans.

Beginning in 2018, a group of plotters launched a concerted effort to smear the U.S. ambassador to Ukraine, Marie Yovanovitch, and push for her removal from office. The group included two naturalized American citizens with ties to Ukraine, Lev Parnas and Igor Fruman; their American lawyer and partner Rudy Giuliani (who also works as a personal lawyer to Trump); and two former Ukrainian law enforcement officials, Yuriy Lutsenko and Viktor Shokin.

Parnas, Lutsenko, and Shokin passed on derogatory information about Yovanovitch and Biden—including allegations later proved to be false—to Giuliani and Pete Sessions, then a Republican congressman from Texas. Giuliani encouraged media coverage of the claims, which were then amplified by Trump and his son Donald Trump, Jr. But behind this group were bigger players with deeper pockets, and it was their

agenda that was driving the campaign.

According to federal prosecutors in New York who indicted Parnas and Fruman last fall on charges of conspiracy to violate campaign finance laws, the pair, who had little money of their own, had been donating hundreds of thousands of dollars to U.S. political action committees through a shell company backed by foreign funds. They had other plans, as well. The Associated Press reported that in March 2019, Parnas and Fruman proposed a deal to Andrew Favorov, an executive at the state-owned Ukrainian gas company Naftogaz, in which the company would import U.S. liquefied natural gas. As part of the deal, Favorov would replace the company’s widely admired chief executive, Andriy Kobolyev.

Parnas and Fruman told Favorov that the U.S. ambassador, Yovanovitch, would likely oppose the deal—but they assured him that she would soon be removed from office.

The men, it seems, were hardly freelancing.

As the journalist Catherine Belton writes in her recent book, Putin’s People, Parnas and Fruman were working for Dmytro Firtash, a Ukrainian tycoon “who’d taken over the Turkmenistan-Ukraine-Russia gas trade with the backing of the Kremlin.” (The federal prosecutors in New York revealed that Firtash has provided at least $1 million to Parnas.) According to The Washington Post, under Parnas and Fruman’s proposal, Naftogaz would agree to write off hundreds of millions of dollars in debt that Firtash owed the company.

The plot’s political objectives and Firtash’s apparent involvement elevates this sordid tale from the level of ordinary sleaze to that of strategic corruption. Firtash is a wellknown figure in Ukraine. For many years, he managed trade with Ukraine for Gazprom, the state-controlled Russian gas company that is, in the words of the economist and Russia expert Anders Aslund, “probably Russia’s foremost geopolitical tool in the former Soviet Union and Eastern Europe.”

For Russia, effective control of the gas trade in and through Ukraine is a national objective of paramount importance. And Firtash was Gazprom’s man in Kyiv; indeed, according to Aslund, “Firtash appears to have been a Kremlin influence agent rather than a businessman.”

Firtash was arrested in Vienna in 2014 after federal prosecutors in the United States charged him with attempting to bribe officials in India. A Russian businessman close to Russian President Vladimir Putin loaned Firtash 125 million euros to cover his bail. Firtash has since fought his extradition from Austria with the help of many American lawyers, including former officials from both political parties. Among them are Joseph diGenova and Victoria Toensing, two attorneys with close ties to Giuliani; Firtash has said that he has paid the pair more than $1 million to represent him. DiGenova and Toensing have denied that Firtash was involved in Parnas and Fruman’s

Moscow RUSSIA

Rotterdam

FRANCE

Venice TAJIKISTAN CHINA

Athens

Xian EGYPT INDIA

Kolkata

Hanoi

Fuzhou Quanzhou Guangzhou Belhai Haikou

Djibouti KENUA

Nairobi

China’s Belt and Road Initiative (BRI), a massively ambitious infrastructure plan intended to link China to Africa and Europe through road, rail, and maritime networks

INDONESIA Jakarta

dealings, and according to The Washington Post, the lawyers were able to arrange an unusual meeting with the U.S. attorney general, William Barr, to plead Firtash’s extradition case. (Meanwhile, money may not be the only thing of value that Firtash’s American associates have gotten out of the relationship: according to The New York Times, Firtash’s legal team in Austria has supplied Giuliani with documents that he claims show wrongdoing by Biden.)

DiGenova and Toensing have also appeared on Fox News, not to explain Firtash’s side of the story but to warn millions of American viewers that a supposedly wicked banker, George Soros, was trying to take over U.S. foreign policy in Ukraine. Soros, they claimed, was manipulating American diplomats there. Firtash’s lawyers were referring to the work of the foundations that Soros has funded to pursue his vision of an “open society.” Whatever one thinks of Soros’s preferences in U.S. politics, his foundations have done enormous good in supporting transparency and law enforcement initiatives in eastern Europe.

The Kremlin and its friends have prioritized undoing that progress and so have targeted Soros with vicious and often anti-Semitic propaganda.

The Ukraine scandal, Belton writes, “exposed both the fragility of the American political system and how it had been corroded from within. ‘It looks like the whole of U.S. politics is for sale,’ said a former senior Russian banker with ties to the security services. . . . ‘It turned out everything depended on money, and all these [Western] values were pure hypocrisy.’”

The upshot is that by spending millions of

dollars and dangling bait about information to help Trump, Firtash and his associates are apparently trying to keep him from being extradited, put control of Ukraine’s energy sector in more pliable hands, get rid of the American officials who stand in the way, and propagate conspiracy theories that have long been a staple of Russian propaganda. It is no coincidence that these aims almost completely match the Kremlin’s. It’s quite an agenda— and little of it originated in the United States.

Corruption With Chinese Characteristics Putin’s regime is hardly the only one that has weaponised corruption to advance its national interests; Beijing has gotten in the game, as well. Consider the case of a once high-flying Chinese energy conglomerate, CEFC China Energy. The actual character of the company’s operations and its chief executive, Ye Jianming, remains mysterious.

Ye had invested and arranged official connections around the world, including in the Czech Republic. In 2018, an expert in Prague who was tracking Ye’s efforts told The New York Times that “it’s been clear for some time that this is not just a Chinese commercial company, that they had some intelligence ties.” As a CNN report put it, “at its height, [the company] aligned itself so closely with the Chinese government that it was often hard to distinguish between the two.”

The mystery deepened in November 2017, when U.S. authorities arrested a CEFC executive named Patrick Ho on charges of bribery and money laundering. A former Hong Kong government minister, Ho was well known for speeches extolling China’s Belt and Road Initiative (BRI), a massively

Wealthy donors with ties to Chinese authorities have funded Australian political organizations and election campaigns, organized efforts to influence public opinion, and contributed to politicians who have praised China. ambitious infrastructure plan intended to link China to Africa and Europe through road, rail, and maritime networks that China believes will stimulate trade and economic development.

Ho was not just relying on his oratorical gifts. In 2014, he offered President Idriss Déby of Chad $2 million, hidden in gift boxes. Two years later, he arranged for a bribe of $500,000 for the president of Uganda, Yoweri Museveni. The bribes were meant to open the oil and gas markets in those countries to Chinese business.

And the BRI wasn’t the only thing Ho was promoting: U.S. federal prosecutors also alleged that he had arranged for illicit arms sales to Libya and Qatar and had offered to help Iran move sanctioned money out of China.

A few months after Ho’s arrest, the chief executive of CEFC China Energy, Ye, disappeared. He is believed to be detained

49

U.S. federal prosecutors charged the second-largest state-owned bank in Turkey, Halkbank, with organizing a massive scheme to evade international sanctions on Iran by shipping gold to the Islamic Republic in exchange for oil and gas

in China, and the company has been formally taken over by a Chinese state enterprise.

Owing to China’s history of conflict with the British Empire, China’s leaders are familiar with the way the British operated in the nineteenth century, and they seem to appreciate how the empire’s power did not rely solely on soldiers or warships; it came, rather, from the empire’s control of ports, canals, railroads, mines, shipping routes, telegraph cables, commercial standards, and financial exchanges. Students of British imperial history could only shake their heads with recognition last year when they heard Mahmoud Ali Youssouf, the foreign minister of strategically located Djibouti, tell The Washington Post, “Yes, our debt to China is 71 percent of our GDP, but we needed that infrastructure.” China now fosters land and sea connectivity in a global system built to Chinese norms and standards of cooperation, financed by a network of Chinese-funded banks, and enabled by Chinese graft and bribery on an epic scale.

Experts disagree about whether, on balance, the BRI poses a threat to U.S. interests.

Regardless of one’s judgment on that question, however, it’s essential to see that corruption is central to the BRI, which involves little transparency and lots of money and which puts officials all over the world in hock to the Chinese Communist Party. It also connects infrastructure on three continents to an authoritarian government in Beijing known for collecting personal information and suppressing dissent. Not all local officials take the same insouciant view as the foreign minister of Djibouti; some may need to be influenced in other ways.

That may be why China has taken a more systematic approach to strategic corruption

50 | BRIEF DECEMBER 2021

in Australia. During the last few years, revelations of Chinese efforts to reshape Australia’s political environment have dominated headlines in the country. Wealthy donors with ties to Chinese authorities have funded Australian political organizations and election campaigns, organized efforts to influence public opinion, and contributed to politicians who have praised China. In 2018, after media accounts revealed one such donor’s under-the-table contributions to an Australian senator—who then provided counter surveillance advice to the Chinese donor—the senator was forced to resign his seat.

In 2005, a Chinese diplomat named Chen Yonglin defected to Australia and later wrote that “the Communist Party of China had begun a structured effort to infiltrate Australia in a systematic way.” The Australian authorities agree. After retiring last year as director general of Australia’s main intelligence agency, Duncan Lewis went public with a warning about China’s “insidious” agenda. “Not only in politics but also in the community or in business, [such foreign interference] takes over, basically, pulling the strings from offshore,” Lewis said. What Australia is experiencing is a version of the strategic corruption that alarmed Americans in the 1930s and led to the passage of FARA. In 2018, Australia enacted the Foreign Influence Transparency Scheme Act, which is based on FARA but improves on it.

“A Little Conflict Of Interest” U.S. adversaries are not the only ones that have weaponised corruption. Turkey is just one example of a nominal ally that has also tried its hand at the technique. Last year, U.S. federal prosecutors charged the second-largest state-owned bank in Turkey, Halkbank, with organizing a

massive scheme to evade international sanctions on Iran by shipping gold to the Islamic Republic in exchange for oil and gas. After initially protesting that U.S. courts had no jurisdiction, Halkbank pleaded not guilty, and the case is awaiting trial in New York. But Turkey wasn’t just trying to undermine the effort to isolate and weaken the Iranian regime, which is one of Washington’s most important foreign policy goals; it was also attempting to produce a specific policy outcome.

In 2016, an Iranian Turkish businessman involved in the conspiracy, Reza Zarrab, was arrested in the United States. There was a significant chance that he might plead guilty and talk, perhaps about the involvement of senior Turkish officials in his scheme. Before Zarrab entered his plea, however, Giuliani and his long-time friend Michael Mukasey, who served as attorney general in the George W. Bush administration, agreed to represent Zarrab and worked hard to free him.

Before allowing the two lawyers to represent Zarrab, the judge in the case held a number of hearings to explore their potential conflicts of interest. Giuliani’s law firm was a registered agent for Turkey, and the judge noted that Giuliani might be barred from reaching a resolution to the case “that would be contrary to Turkey’s interests.” In February 2017, Giuliani and Mukasey travelled to Turkey to discuss Zarrab’s case with Turkish President Recep Tayyip Erdogan. Then, according to The Washington Post, in the fall of that year, the two lawyers secured a meeting with Trump in which they lobbied the president to release Zarrab; the bait was the idea of swapping him for Andrew Brunson, an American pastor whom the Turks had arrested on pre-textual charges.

According to the Post, Trump was tempted, and then Secretary of State Rex Tillerson was called over to the Oval Office. He was surprised to find Giuliani and Mukasey there and refused to go along with the deal. Nor would the Justice Department. The White House chief of staff at the time, John Kelly, was also reportedly quite concerned about the Giuliani-Mukasey-Trump effort to interfere in a criminal investigation. The swap never occurred (Brunson was released anyway in 2018), and Zarrab eventually pleaded guilty and spilled vital evidence that led to the indictment of Halkbank.

Trump himself once remarked in regard to Turkey, “I have a little conflict of interest, because I have a major, major building in Istanbul.”

Ever since, Halkbank and Turkish officials have worked on Trump, trying to protect the bank from having to pay the kind of huge, multibillion-dollar fines levied in a similar case against the French firm BNP Paribas.

Their task has been made easier by the fact that Tillerson, Kelly, and many other potential objectors are now gone and that there seems to be no shortage of willing interlocutors in addition to Giuliani. Trump’s son-in-law and senior adviser, Jared Kushner, has become a key go-between for relatives of Turkish leaders—including one of Erdogan’s sons-in-law. Last year, Lindsey Graham, a Republican U.S. senator from South Carolina, was fooled by a prank caller posing as the defence minister of Turkey, who recorded Graham’s assurances that Trump was “very sensitive” to Turkey’s concerns about the Halkbank case and that Trump wanted “to be helpful.”

It’s impossible to say for certain what Turkey has offered through its informal channels to Trump. But in November 2019, Trump’s former national security adviser John Bolton delivered an off-the-record speech to a private group in which he reportedly expressed his belief that “there is a personal or business relationship dictating Trump’s position on Turkey.” Other evidence suggests this may be true: Trump has been remarkably deferential to Erdogan and has treated the Turkish president with a leniency that stands in stark contrast to the manner in which Trump has dealt with the leaders of close U.S. allies, such as former British Prime Minister Theresa May and German Chancellor Angela Merkel. In 2012, when Trump Towers Istanbul opened, Trump’s daughter Ivanka Trump tweeted her thanks to Erdogan for attending the opening ceremony. And according to the Washington Examiner, Trump himself once remarked in regard to Turkey, “I have a little conflict of interest, because I have a major, major building in Istanbul.”

It is surprising that a state-owned bank of a nominal U.S. ally defied Washington by helping Iran thwart sanctions. But what is far more dismaying is that when this activity came to light, those involved looked for and found American proxies who could plead their case to prevent the U.S. government from punishing their behaviour. That goes well beyond pay-to-play. It is pay-for-

Trump Towers in Istanbul

policy; it is strategic corruption. And so far, it has succeeded. Halkbank has not paid significant fines for its massive violations of the sanctions against Iran.

London’s Cautionary Tale For the United States and its partners, strategic corruption poses three dangers.

First, there is the direct and obvious threat of bad policy outcomes. Then, there is the more general risk that stems from rivals adopting corruption as a technique for global influence building, as the Chinese have done in developing the BRI. Such efforts amount to a steady reversal of the post Cold War effort led by the United States and its allies to promote prosperity in developing countries through transparency, political reforms, and economic liberalization. In the past, by following such advice, countries could enhance their status in Western institutions and join the community of nations. In contrast, the new Beijing-

centered system has built a global network of oligarchs who owe their positions and livelihoods to their Chinese patrons. As the Chinese system grows in influence and expands its geographic reach, it corrodes not only the development prospects of the affected countries but also their participation in open trade relationships and their security cooperation with others.

The third and final danger comes from countries such as China and Russia leveraging state-directed enterprises and illicit money flows to directly penetrate Western governments and institutions.

Canadian banks, British real estate companies, and American lobbying and public relations firms, among others, now serve the interests of authoritarian states— wittingly or otherwise. In the United States, a steady drip of revelations about this foreign influence has fed citizens’ tendency to view their political system as corrupt and to conclude that U.S. policy is for sale to the

51

A normal U.S. presidential administration would have already opened a national security investigation into the campaign against Yovanovitch, taking a hard look at Firtash and his associates and using resources that extend beyond those available to the FBI. highest bidders—even overseas rivals.

This is, of course, by design. As a 2016 study published by the Center for Strategic and International Studies put it, “Russian influence centres on weakening the internal cohesion of societies and strengthening the perception of the dysfunction of the Western democratic and economic system.

This is achieved by influencing and eroding democratic governance from within its own institutions.” That is why, as the scholar Larry Diamond recently warned, “large-scale endemic corruption poses the single most urgent internal threat to democracy—and renders it all the more vulnerable to external subversion.”

For a cautionary tale about what happens when strategic corruption goes unchecked, Americans need look no further than the United Kingdom. Putin believes that he has so neutered Washington’s closest strategic partner that he feels secure deploying exotic clandestine weapons there to conduct political assassinations. To amass this staggering degree of freedom to manoeuvre, Putin and his cronies exploited a number of weaknesses in the British system. The United Kingdom’s anonymous property registry allowed Russian oligarchs to swamp London and its financial sector, where they stashed dirty money. British libel law favours plaintiffs far more than the equivalent U.S. statutes and doctrines do, and Russian oligarchs have ruthlessly exploited that advantage with the goal of censoring speech that exposes their schemes. In 2014, for example, Cambridge University Press backed away from plans to publish the American political scientist Karen Dawisha’s book Putin’s Kleptocracy out of fear that Russians named in the book would unleash an avalanche of frivolous libel lawsuits—with the help of highpowered British lawyers, of course.

How To Clean House The growing threat from strategic corruption has gone largely unnoticed or underappreciated in the Pentagon and the State Department. It is not enough to subcontract

52 | BRIEF DECEMBER 2021

the problem out to federal prosecutors and hope for the best; the response needs to move to the centre of foreign and national security policy. That will require public and private campaigns to monitor corruption, efforts by lawmakers to eliminate vulnerabilities in the U.S. legal and political systems, and an end to Washington’s overreliance on economic sanctions, which will become less and less effective if U.S. rivals can offer alternative means of support.

The policy moves that Washington needs to take to avoid London’s fate are not glamorous; they will rarely involve precision munitions or SEAL teams. But they are nevertheless vital. For starters, the traditional agenda of promoting transparency needs to be updated and reinforced. A first step would be for the federal government and state capitals to tighten their regulation of limited liability companies, the anonymous nature of which allows them to hide funds of questionable origin and the ownership of luxury properties. Last year, the House of Representatives passed the Corporate Transparency Act, which would, among other things, require disclosure of the beneficial owners of registered firms or corporations.

This is a step in the right direction. Congress should also conduct fresh hearings on the scope and enforcement of FARA, which needs another round of amendments.

The United States also needs legislation to make it harder to pursue baseless libel claims designed to harass and censor critics.

Twenty-nine states have already passed such laws, but that is not enough. Federal legislation may be a better route.

The fight against strategic corruption sometimes blurs the traditional lines between counter-intelligence, law enforcement, and diplomacy. That can pose problems even when the federal government is in the hands of a normal presidential administration and is functioning well. Corruption investigations can overreach; they can become politicized.

But U.S. intelligence and foreign policy agencies must be alert to the danger posed by strategic corruption. The defence against this threat cannot simply be left to a U.S. attorney’s office or to the Treasury Department.

A normal U.S. presidential administration would have already opened a national security investigation into the campaign against Yovanovitch, taking a hard look at Firtash and his associates and using resources that extend beyond those available to the FBI. But even without any inside knowledge of the Trump White House, it is not difficult to imagine the difficulties such an investigation would currently pose for career officials.

The Halkbank case presents some analogous problems. And there may be similar situations that are not yet publicly known.

But the means to fight strategic corruption

exist, and a future administration might decide to use them in an honest manner.

A conscientious executive branch could take advantage of tools such as the Privacy and Civil Liberties Oversight Board, which was established in 2004 to help check the dangers of overzealous or politicized investigations. And of course, there are older methods for cleaning house, such as agency inspector generals (now being targeted by the current president) and congressional oversight (if Congress ever manages to earn back the public’s trust, which has almost entirely eroded in recent decades).

The danger of strategic corruption does not have to be a partisan issue. An anticorruption agenda could unite those on the left and the right who favour economic transparency—which protects consumers, investors, and citizens alike—and who want to stamp out crony capitalism. Those shared values explain why anti-corruption is an animating issue for civil society groups across the political spectrum, from Transparency International to the Hudson Institute’s Kleptocracy Initiative.

Although Trump’s impeachment has receded into the rear-view mirror, the Ukraine debacle that precipitated it still presents an opportunity. Instead of merely contributing to the polarization and dysfunction that plagues Washington, that scandal and others can help reset the agenda for policy action. The Ukraine scandal is not just an alarm about the current U.S. president. It is a warning that drives home how vulnerable governments have become to a new form of political warfare, a strategy that takes advantage of freedoms in order to discredit them.

Copyright © 2021 by the Council on Foreign Relations, Inc. Source URL: https://www.foreignaffairs. com/articles/united-states/2020-06-09/risestrategic-corruption PHILIP ZELIKOW is Professor of History and Professor of Governance at the Miller Center at the University of Virginia. A former U.S. diplomat and Executive Director of the 9/11 Commission, he has worked for five presidential administrations.

ERIC EDELMAN is Counselor at the Center for Strategic and Budgetary Assessments and Senior Adviser at the Foundation for Defense of Democracies. He served as U.S. Undersecretary of Defense for Policy from 2005 to 2009.

KRISTOFER HARRISON is a financial and political risk consultant. He was an adviser to the U.S. Departments of Defense and State during the George W. Bush administration.

CELESTE WARD GVENTER served as U.S. Deputy Assistant Secretary of Defense during the George W. Bush administration.

Beginning this fall, she will be a Fellow at the Albritton Center for Grand Strategy at Texas A&M University.

Personal Costs Orders Against Legal Practitioners Under the Uniform Law

by Konrad de Kerloy, Barrister, Fourth Floor Chambers

A

recent New South Wales Court of Appeal decision (Muriniti v Mercia Financial Solutions Pty Ltd [2021] NSWCA 180 (18 August 2021) should be of interest to Western Australian legal practitioners as it explains the operation of the soon to be introduced provisions of the Uniform Law which allow the court to make costs orders personally against the legal practice or the solicitor who acts for an unsuccessful party in litigation involving claims for damages.

The case is also a salient reminder of the very high legal and ethical obligations imposed on legal practitioners by the Uniform Law and the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 not to plead or allege fraud and other criminality or misconduct without a proper basis to do so.

Relevant Provisions Cl 2(1) of Sch 2 to the Uniform Law stipulates that: A law practice must not provide legal services on a claim or defence of a claim for damages unless a legal

practitioner associate responsible for the provision of the services concerned reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.

That provision must be read with rule 21 of the Conduct Rules 2015.

Rule 21.3 provides that a solicitor must not allege any matter of fact in any court document settled by the solicitor, in any submission during any hearing, in the course of an opening address, or in the course of a closing address or submission on the evidence, unless the solicitor believes on reasonable grounds that the factual material already available provides a proper basis to do so.

Rule 21.4 provides that a solicitor must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the solicitor believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it, and

the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.

Clause 5(1) of Sch 2 of the Uniform Law provides: 5 Costs order against law practice acting without reasonable prospects of success (1) If it appears to a court in which proceedings are taken on a claim for damages that a law practice has provided legal services to a party without reasonable prospects of success, the court may of its own motion or on the application of any party to the proceedings make either or both of the following orders in respect of the practice or of a legal practitioner associate of the practice responsible for providing the services— (a) an order directing the practice or associate to repay to the party to whom

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

How are we going to achieve this?

By funding world-class researchers here in WA.

By providing support from the point of diagnosis through to treatment and beyond.

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

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

To find out more contact us on 08 9212 4333 or visit cancerwa.asn. au/getinvolved/a-gift-in-will Cancer Council Western Australia (Inc).

Level 1, 420 Bagot Road, Subiaco WA 6008 ABN: 15 190 821 561

53

Judges are also conscious of the fact that, for various reasons not always within the control of the practitioner, litigation may take an unexpected turn, resulting in a case which originally may have appeared to have fair or reasonable prospects to be a hopeless one.

the services were provided the whole or any part of the costs that the party has been ordered to pay to any other party, (b) an order directing the practice or associate to indemnify any party other than the party to whom the services were provided against the whole or any part of the costs payable by the party indemnified.

Clause 6(1) of Sch 2 of the Uniform Law provides: 6 Onus of showing facts provided reasonable prospects of success (1) If the court (the trial court) hearing proceedings on a claim for damages finds that the facts established by the evidence before the court do not form a basis for a reasonable belief that the claim or the defence had reasonable prospects of success, there is a presumption for the purposes of this Schedule that legal services provided on the claim or the defence (as appropriate) were provided without reasonable prospects of success.

54 | BRIEF DECEMBER 2021

Facts in Muriniti The substantive proceedings Mr Muriniti had been the solicitor for the defendant in the underlying substantive proceedings, involving a claim for possession and monies due and owing under a loan agreement and mortgage. In these proceedings, a cross-claim was brought on behalf of Mr Muriniti’s client, alleging that the cross defendants had engaged in fraudulent misrepresentation and conspiracy to defraud the defendant. In his judgment on the substantive proceedings (Kaji Australia Pty Ltd v Glover (No 4) [2019] NSWSC 1779), Davies J dismissed the cross-claim, finding that there was no evidentiary basis for the allegations of fraudulent misrepresentation and conspiracy and that it was “difficult to see in the present matter how [Mr Muriniti’s] ethical responsibilities have been complied with”.

The substantive judgment was upheld on appeal: see Glover v Kaji Australia Pty Limited [2020] NSWCA 222.

The costs judgment

In the costs judgment, which was delivered following the appeal judgment, the primary judge ordered that Mr Muriniti was to indemnify certain of the cross-defendants in the substantive proceedings for 65% of their costs and/ or out-of-pocket expenses actually and reasonably incurred.

In making the relevant orders, the primary judge held that the filing of the cross-claim was in breach of Mr Muriniti’s professional and ethical obligations, and that the operation of cl 6(1) of Sch 2 to the Uniform Law was engaged.

The rebuttable presumption under cl 6 Sch 2 of the Uniform Law Under cl 6 of Sch 2 of the Uniform Law, solicitors are bound by any findings by the trial judge of the kind referred to in that clause, to lead to the rebuttable presumption that the legal services were provided without reasonable prospects of success.

In the substantive proceedings, the findings made by the primary judge, and the acceptance of those findings by the Court of Appeal, clearly identified the absence of evidence to justify the particular claims of fraudulent misrepresentation and conspiracy that were made. In that way those findings gave rise to a presumption for the purposes of cl 6 of Sch 2 of the Uniform Law. There was, therefore, an onus on Mr Muriniti to establish that there were provable facts that provided a basis for a reasonable belief that the claim had reasonable prospects of success.

Mr Muriniti attempted to rebut the statutory presumption by simply repeating in his affidavit and oral

evidence the facts and arguments which had been considered by the primary judge (and the Court of Appeal) in rejecting the fraudulent representation and conspiracy claims. The attempt failed.

In reaching his conclusion, the primary judge had regard, as an important part of the context, to r 21 of the Conduct Rules. His Honour took the view (at CJ [65]) that nothing in Mr Muriniti’s affidavit or his oral evidence identifies any available material, as cl 21.4.1 requires, which supports the allegations.

The primary judge also drew attention (at CJ [79]) to the fact that, given that the alleged conspiracy was advanced by reference to circumstantial matters: … a reasonable solicitor would need to ask himself or herself why it might be that the cross-defendants would be acting in a fraudulent, improper or illegal way”. The only answer that could be proffered by Mr Muriniti was entirely speculative.

In the appeal judgment, Bell P (with whom the other members of the Court agreed) observed (AJ [12]): Clause 6(1) of Sch 2 of the Uniform Law is a forensically significant provision because it erects a statutory presumption by reference to findings in the underlying proceedings to which the legal practitioner is not a party (although he or she will have been intimately involved in the proceedings).

Whilst the presumption built on such findings may be rebutted, the legal practitioner is bound by the findings in the sense that he or she may not be heard to say that, because he or she was not a party to the proceedings, they have no legal effect on the legal practitioner.

Bell P also made a number of other important observations concerning the rebuttable presumption.

Firstly, a practitioner will be afforded the opportunity to lead evidence in support of the reasonableness of the position taken in the conduct of the underlying litigation. At AJ [84] Bell P stated: Judges are astute to the fact that different views may be open on particular evidence and that just because a witness, for example, may not ultimately be accepted as credible

under cross-examination or come up to proof, it may have been entirely reasonable for a practitioner to have based his or her view as to arguability of a case on such evidence. Judges are also conscious of the fact that, for various reasons not always within the control of the practitioner, litigation may take an unexpected turn, resulting in a case which originally may have appeared to have fair or reasonable prospects to be a hopeless one.

On a third party costs application, the legal representative will have the opportunity to explain such a circumstance.

Secondly, costs orders against legal practitioners should not be used in a way that discourages acceptance of instructions in cases which are fairly arguable, even if not strong or even weak. Bell P cited at AJ [85] a passage from Barrett J’s judgment in Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284; [2005] NSWSC 3 at [27]: A statutory provision denying to the community legal services in a particular class of litigation cannot be intended to stifle genuine but problematic cases. Nor do I see the statutory provisions as intended to expose a lawyer to the prospect of personal liability for costs in every case in which a court, having heard all the evidence and argument, comes to a conclusion showing that his or her client’s case was not as strong as may have appeared at the outset to be. The legislation is not meant to be an instrument of intimidation, so far as lawyers are concerned.

Thirdly, there will be cases where evidence about facts were unknown to the primary judge because for forensic or other reasons they were not deployed or did not emerge in the trial but which supply some additional basis for the solicitor’s belief as to the viability of the allegations and rendered the approach taken a reasonable one. Where such evidence exists, it may be presented to rebut the presumption.

Fourthly there may also be cases where the constraints of legal professional privilege impede the ability fully to explain the practitioner’s basis for making the problematic allegations.

Where such constraints exist, they can be taken into consideration in

determining whether the presumption has been rebutted.

Fifthly, in order to demonstrate a reasonable belief that the claim or the defence had reasonable prospects of success it is not sufficient to demonstrate that the legal practitioner had a genuine and honest belief that his or her reasoning process underpinning the allegations was cogent. There must be a reasonable basis for the allegations being made. As Bell P observed (albeit in relation to s 99 of the Civil Procedure Act 2005 (NSW)) at AJ [103]: An honest and genuine belief that a matter is reasonably arguable does not make it so. This is an objective matter which is separate from the subjective belief and understanding of the legal practitioner.

Sixthly, while the obligation to have a reasonable basis for the allegations being made applies to all allegations, allegations of fraud and other criminality add a further dimension in that they engage the well-known principles of professional conduct embodied in the Conduct Rules calling for due circumspection and care in the making of such allegations.

Seventhly, the repetition of facts and arguments which have already been considered by the primary judge in the substantive hearing will not be sufficient to rebut the statutory presumption. As Bell P observed at AJ[93]: In that context, the key point is that, in the present case, no evidence was adduced which operated to rebut the statutory presumption which arose from the primary judge’s undisturbed findings in the underlying substantive judgment.

Conclusion Legal practitioners must test their case theory and the allegations which they propose to make in support of that theory against the facts as they exist at the time of making them and against any facts which emerge in the course of the case which might demonstrate objectively the flimsiness and insecurity of the theory. That is particularly so where the case theory involves allegations of fraud or other serious misconduct. Failure to do so may have serious financial consequences to the practitioner concerned.

55

Conflict and Confidentiality Gino Dal Pont Professor, Faculty of Law, University of Tasmania

Ethics Column The recent decision in Dyer v Chrysanthou (No 2) [2021] FCA 641 presents as a useful reminder of the purview of successive conflicts rules.

Merely because the lawyer in question deposes to absence of confidential communications within a retainer is not determinative.

Preservation of client confidentiality takes paramountcy in this regard.

I would not ordinarily devote an entire ethics column to an individual case, but I make an exception on this occasion in the face of Thawley J’s June 2021 decision in Dyer v Chrysanthou (No 2).1 In part, this stems from the notoriety of the case in the media and broader public circles, largely because it was spawned against the backdrop of serious allegations against a senior Federal government Minister, Mr Porter. The latter pursued defamation proceedings against the national broadcaster (the ABC), and retained the respondent barrister as counsel.

Some have surmised that Thawley J’s order restraining the respondent from acting for Mr Porter might have proven a factor that prompted Mr Porter to discontinue the action, indeed only four days after that ruling.

The judgment in Dyer is instructive in bringing together questions of retainers, lawyer confidentiality and successive conflicts. In November 2020, the applicant had sought advice from the respondent concerning potentially defamatory imputations in a newspaper article. These arose out of a broadcast on Four Corners — itself the subject matter of Mr Porter’s defamation claim — wherein the applicant had been interviewed. The article alleged that the Four Corners broadcast omitted reference to the applicant’s links to the Labor party, thus suggesting that she had provided comment out of partisan political views. Ultimately, the applicant did not pursue the matter, and on 10 March 2021 the respondent accepted the brief from Mr Porter.

56 | BRIEF DECEMBER 2021

The applicant’s primary argument in seeking to restrain this engagement focused on the danger of misuse of confidential information received by the respondent in the context of her dealings with the applicant.

This argument required Thawley J to address several matters. The first, most fundamentally, was whether a lawyer-client relationship (had) existed between the applicant and the respondent. Beyond the initial conference, there were multiple emails in a trial to which the respondent was a party. His Honour had no difficulty in finding that the respondent ‘acted and communicated at the time of the events in a way which was consistent with a barrister acting on a pro bono basis’.2 Though at trial ultimately conceding that a retainer existed, Mr Porter sought to argue that no relevant confidential information was imparted under its umbrella. Accordingly, Thawley J needed to make findings as to what was said at the conference, which the instructing solicitors attended. Resisting Mr Porter’s invitation to favour the account of the respondent, his Honour found that ‘her recollection was not good’ and ‘was demonstrated to be incorrect in a number of ways’.3 He favoured the accounts of the instructing solicitors and the respondent, which spoke of confidential information, including ‘impressions … inevitably formed by [the respondent] in connection with particular facts, some of which were confidential’.4 That the respondent disclaimed any present recollection of the said information did not dictate an alternative conclusion.

The next stage in the analysis was an inquiry into whether the respondent was, by taking the brief from Mr Porter, acting ‘against’ the applicant in the requisite sense.

Of course, the applicant was not an opposing party to Mr Porter’s defamation proceedings, and so in a strict sense the respondent was not acting against a former client.

Yet the relevant proscription in this context is not so circumscribed. As

Thawley J observed, a conflict arises in any situation where a lawyer ‘uses confidential information obtained in the confidence and privilege of the lawyer-client relationship without the client’s informed consent, particularly where the use of the information may be regarded as against the client’s interests, whether legal or otherwise’.5 It was, after all, ‘reasonably possible’ that the applicant could be called as a witness in Mr Porter’s action.6 But the restraint was not confined to this prospect. The relevant conflict arose, explained his Honour, because the respondent ‘obtained information through her dealings with the ABC which was not publicly available and which was confidential so far as [the applicant] was concerned’.7 A number of matters of significance emerge from the above. First, the existence of a retainer is not approached purely from the perspective of the lawyer in question. Second, a court will not simply accept a lawyer’s account when it comes to the contents of communications with a putative client, nor pronouncements that the lawyer has no recollection thereof. Third, the concept of ‘confidential information’ is not amenable to being narrowly circumscribed. Fourth, a conflict is actionable when needed to preserve the confidentiality of information; that the former client is not a party to the subsequent proceeding is no reason by itself to preclude disqualification.

While none of these matters is unheralded in the case law — to the contrary, rather —the decision serves as a timely reminder of the sensitivities underscoring the curial jurisdiction to disqualify a lawyer from acting against a former client.

End notes 1 2 3 4 5 6 7

[2021] FCA 641.

Ibid at [79].

Ibid at [87].

Ibid at [101].

Ibid at [104].

Ibid at [105].

Ibid at [106].

An Interview With

Dr Ben Gauntlett

Disability Discrimination Commissioner

D

octor Ben Gauntlett commenced his term as Disability Discrimination Commissioner on 7 May 2019.

To celebrate International Day of People with Disabilities 2021 on 3 December, we interviewed Dr Gauntlett about his career as a lawyer and his journey to his tenure at the Australian Human Rights Commission.

How did you become interested in law and in particular human rights and disability discrimination?

I fell into Law. When I left school, I first started studying Medicine but changed in second year. I became concerned I would not be able to be the type of doctor I wanted to become so I changed into Law. The use of technology was quite different then and teaching at university was also quite rigid. Law had a far more flexible time commitment.

I think my move into human rights and disability discrimination law is related to a wish to have a job that is meaningful. I had a spinal cord injury when I was 16 playing rugby union, which means I’m a wheelchair user. You do see and experience things that make you appreciate the importance of human rights.

What motived you to achieve so much in your career so far?

I think career success is different for everyone. I suspect I studied at university and engaged with campus life because it gave me an outlet to meet people and be part of a group. A scholarship enabled me to study overseas. I have lived in quite a few different places and worked in different roles. I think I’m curious as to what is required in certain roles. However, I do think you have to be open to moving roles as you try and find a job that suits you and your stage of life.

As AHRC Disability Discrimination Commissioner, you have an overarching responsibility for increasing access to meaningful employment and housing for people with disability, creating greater awareness of disability rights and disability discrimination, and strengthening legal and policy frameworks to protect disability rights. What do you think are the hardest challenges of your role?

The hardest challenges are where you cannot make the impacts you want too. For instance, you need a law to be changed and cannot persuade people why it should be done. The clearest recent instance of this is State Governments in Australia declining to adopt the recent amendments to the National Construction Code to make basic accessibility considerations in new houses and apartments mandatory (with limited exceptions). Well-designed housing keeps people in jobs, out of hospital and aged care homes and reduces overall care costs and needs. People living in institutions, like aged care homes, are also far more likely to experience violence and abuse. We know this from both the Royal Commission into Aged Care Quality and Safety and the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.

The revised areas of accessibility in the National Construction Code are inexpensive and have been used extensively in social housing. For example, a slightly wider door or one step free entrance to a property. To renovate to create accessibility has been estimated by industry bodies to be 22 times more expensive than to design the house or apartment to include accessibility considerations up front.

Another significant challenge is where there are serious instances of violence, abuse, neglect or exploitation of people with disability. The role as the AHRC Disability Discrimination Commissioner is a policy role and you do not have investigative or enforcement powers. This can be frustrating, especially where particularly egregious conduct may have taken place.

How can the legal profession lead the change on inclusion and boost employment for people with disability?

The legal profession should lead by example. This means there should be clear policies on how to recruit, retain and advance people with disability with profession wide data kept. Over 80% of disability is invisible so there needs to be clear education and training on disability awareness too.

What would you like to achieve during your tenure?

The Convention on the Rights of Persons with Disabilities (CRPD) was signed by Australia in 2007 and ratified in 2008.

Australia gets reviewed under the CRPD by the Committee on the Rights of Persons with Disabilities (Committee) periodically and its last review was in 2019. A number of recommendations were made by the

Committee in areas such as employment, housing, the justice system and health care.

I would like to try and ensure as many of those recommendations are followed as possible. In particular, I think we need to do better in employing people with disability and ensuring all new houses and apartments are accessible.

Since you began practise, what change in the law/legal profession has been the most positive?

Technology has changed how people communicate and resolve matters. This is mostly beneficial. However, it can mean people are excluded if they cannot use or access the technology.

There are also a lot more law students now relative to the number of jobs. This can make it challenging for people to build their careers. I think an emphasis on mental health, diversity in the profession and respectful interactions has though been good for junior lawyers.

Is there anything you would like to change about the legal profession?

Change might be too strong a word.

However, I do think it is important everyone realises it is a profession and to do some pro bono work or to work with a community organisation is helpful. Some people who are not in the legal profession have very challenging life circumstances and we need to ensure all people in Australia are treated with dignity and respect.

How has the pandemic altered human rights/disability discrimination discourse in Australia?

The pandemic exacerbates disadvantage.

Access to vaccines, healthcare and disability related support has been a significant issue for people with disability. Some of the public health measures have also been particularly challenging for people with disability. For example, the wearing of masks and need to use QR Codes.

The pandemic has not altered human rights or disability discrimination law but has created more issues of concern for people with disability.

What are some of your favourite books?

Long Walk to Freedom by Nelson Mandela is my favourite book. I sadly have far too many Law related books. I found reading all day at work has meant I did not read as much for pleasure. I still prefer a hard copy book but am adapting to using a kindle.

57

In this edition’s YLC section we wrap-up the Careers Uncut event, offer tips for working with Self-Represented Litigants and explore the revealing results of the recent COVID-19 survey.

The Young Lawyers Committee assists clerks, graduates and new lawyers as they enter the profession, and advocates within the Law Society on issues affecting young lawyers.

This is the YLC’s section of Brief — a series of serious and not so serious articles and interviews for young lawyers by young lawyers.

If you’d like to contribute to the YLC’s section, please email younglawyers@lawsocietywa.asn. au with your articles and ideas.

58 | BRIEF DECEMBER 2021

Event Wrap-up

Careers Uncut On 30 September the Law Society’s Young Lawyers Committee once again hosted its increasingly popular Careers Uncut event. Supported by Leo Cussen Centre for Law, the YLC was glad to welcome a range of speakers to the stage for a wide ranging discussion of the various opportunities open to law graduates and admitted lawyers.

Attendees heard from seven practitioners of varying backgrounds and practices: Brooke Sojan, a barrister who commenced her career as a lawyer at Legal Aid WA in both the Perth and Pilbara offices and went on to work as State Prosecutor with the Office of the Director of Public Prosecutions; Wanjie Song, works at the State Solicitor’s Office, primarily in areas of native title, Aboriginal heritage, planning and environment, and administrative law;

David Baldwin with presenters Maddison Hogan and Chloe Wood

Martin Udall, one of only a handful of Western Australian lawyers practising solely in the immigration law space; Maddison Hogan, who has been employed at the Supreme Court of Western Australia in a number of roles since the beginning of 2020, and who has primarily worked with the Honourable Justice Strk; James Marzec, who specialises in commercial and corporate litigation, commercial advisory, wills and estate planning and insolvency law, and who spoke on the benefits of working in boutique law firms; David Modolo, who is the Advocacy and Policy Manager at the Real Estate Institute of WA (REIWA) and who espoused the benefits of inhouse legal practice; and Chloe Wood, who moved from her civil and commercial litigation role

in a top tier firm to work in the Civil Law and Human Rights Unit at the Aboriginal Legal Service of WA. Following the speeches, attendees were invited to network with the speakers over drinks and nibbles, with an opportunity to ask questions and gain further insights into how they might progress their own careers in similar practice areas.

University of Notre Dame Law Student Vaughan Jameson said of the event “I really appreciated the broad range of speakers – there were people of all ages and diverse legal backgrounds. I liked the insights into working in boutique firms and in-house law, because those are areas students don’t often hear about.”

With nearly 100 attendees, this event was one of the highlights in the YLC calendar, and will be a sure-fire addition to next year’s calendar.

David Modolo, Advocacy and Policy Manager at REIWA presenting his experiences with in-house legal practice

Presenter James Marzec with Cameron Faas and Daniel Jones

COVID-19 Impact Survey Effects of COVID-19 on junior members of the legal profession: results of the Young Lawyers 2021 survey

I

Together, the surveys suggest that junior lawyers want the kind of flexibility that comes from having the choice to work from home. The evidence supports junior lawyers being able to do so effectively, without impacting productivity, work quality or supervision. It is important, though, for firms to have a focus on

n July this year, the Young Lawyers Committee conducted the second phase of its survey of the effects of COVID-19 on paralegals, law graduates and junior lawyers. This survey was a follow up on the survey conducted in 2020.

Aleksandra Miller

Advocacy Subcommittee Leader, Young Lawyers Committee

supporting those working from home in developing and maintaining meaningful relationships at work. Firms should also be mindful that employees need to retain separation between work and home — the right to log off at a reasonable time is critical to wellbeing.

Survey respondents 101 people responded to the survey, including 82 practising lawyers.

Respondents worked in a variety of legal areas and workplaces, the majority of respondents work in litigation.1

What area of law do you primarily practise in?

53.47%

20.79% 12.87% Corporate

24.75%

20.79%

Li�ga�on

9.90%

6.93%

12.87%

Family Law Criminal Law Employment Na�ve Title Property Law Law and Mining and / or Law Estate Planning

What kind of workplace are you employed in?

Other

32.67%

21.78% 16.83% 11.88% 3.96%

1

60 | BRIEF DECEMBER 2021

0.99%

2.97%

0.99%

6.93%

0.99%

101 people responded to the survey, including 82 practising lawyers, 11 law graduates, 3 paralegals and several admitted lawyers who were not currently practising. 40% of respondents had been practising for less than two years, 35% had been practising for 2 to 5 years, and 10% had been practising for more than 5 years. More than 50% of respondents were between the ages of 26 and 30. 67% of respondents identified as female.

Job losses

Did your workplace suspend the hiring of new staff due to COVID-19?

Sole prac��oner or a Barrister

In-house lawyer (private sector)

Interna�onal firm

Na�onal firm

Other

Public sector

WA large (>50 lawyers)

WA mid-sized (20 - 50 lawyers)

WA small or bou�que (<20 lawyers)

6

6 5

DON'T KNOW

Eight respondents reported that they lost their job as a result of COVID-19 or the economic effects of the pandemic. Three of these people were restricted practitioners and four had been practising for 2-5 years. One of these people was not currently practising.2 Comfortingly, all but one of these people were able to obtain employment since then. These people gained employment in a comparable role. It took two respondents only a few weeks to obtain further employment, however, the remainder of these respondents reported it taking several months. It took two

3

4 NO

1

1

1

1

3

3

3

3

4

5

6

7

10

12

17

Community Legal Centre

YES

respondents 7 to 8 months to obtain further employment, and 12 months for one respondent.

Further, 26 respondents reported that their workplaces suspended the hiring of new staff due to COVID-19. This may be a contributor to the difficulties experienced by some respondents in finding new employment. Interestingly, the data from this survey suggests it was the larger employers who suspended hiring of staff, as opposed to small or boutique firms.

Impact on salaries 14 respondents reported no reduction in pay due to COVID-19, and 25 respondents reported a reduction in pay. Of those who reported experiencing a reduction in pay, it was almost evenly split between those who experienced a reduction in salary and those who experienced a reduction in pay due to reduced hours. 28 respondents reported that COVID-19 resulted in them not receiving a salary increase that would otherwise have been provided. 5 respondents received a smaller pay rise than they would otherwise have received. However, 63 respondents also reported receiving a pay increase since March 2020.

It also appears that profitability of some law practices may not be being passed on to their junior staff. One respondent reported that:

2

“The remuneration has not kept pace with the profitability of the firm. The firm is making more money than ever, and they will not pass it on to the staff, who are ultimately the ones generating the revenue and now have less hospitality and perks than ever (due to the COVID policies and restrictions).”

Given the strong recovery of the WA economy following COVID-19, the Young Lawyers Committee calls on legal practices to ensure that their junior employees receive remuneration proportionate to the time, experience and responsibility expected of the role, and to provide pay increases across the workplace if profitability is increasing.

It is unclear whether the job which they lost was as a practising lawyer.

61

Policies aimed at reducing the spread of COVID-19

In relation to policies not currently in place at their workplaces, 38 respondents indicated that they would like working from home to be implemented, 49 indicated that they would like flexible/staggered start and finish times implemented, 15 indicated that they would like enhanced cleaning at their workplaces, 4 indicated that they would like restrictions in meeting sizes or virtual meetings, and 10 indicated that they would like all of these policies implemented.

In our 2020 survey, we asked about the COVID-safe policies implemented by legal workplaces. In relation to the period since the close of the 2020 survey in July 2020 until 31 January 2021, 69 respondents reported that their workplaces retained working from home policies. 59 respondents reported that their workplaces retained restrictions in meeting sizes or using virtual meetings, and enhanced cleaning and sanitisation. 11 respondents reported their workplaces retaining flexible start and finish times. 27 respondents reported that all of these policies were retained. Some workplaces also implemented new sign-in measures at offices.

It is imperative that law firms do not become complacent and are ready to implement COVID-safe policies, particularly in light of the possibility of interstate and international borders reopening.

Two respondents reported that none of these policies were retained during this time, which is of concern given the recurrence of COVID-19 outbreaks in WA since January 2021.

COVID-19 safety measures retained by legal practices in 2021 Community Legal Centre

I am a sole prac��oner or a Barrister

In-house lawyer (private sector)

Public sector

Na�onal firm

WA mid-sized (20 - 50 lawyers)

WA small or bou�que (<20 lawyers)

WA large (>50 lawyers)

Other

RESTRICTIONS IN MEETING SIZES OR USING VIRTUAL MEETINGS

62 | BRIEF DECEMBER 2021

ENHANCED CLEANING AND SANITISATION

ALL OF THE ABOVE

1

2

2 1

1

2 1

1

2

2

2

FLEXIBLE / STAGGERED START AND FINISH TIMES

1

1

1 1

2

3

4

5

6

8

6

8

9

17

17

8

9

17

19

Interna�onal firm

NONE OF THE ABOVE

COVID-19 Impact Survey Response to 2021 lockdowns

days a week, 4 respondents reported working from home 3-4 days a week, and 4 respondents reported working from home 5 days a week. 44 respondents reported occasionally working from home.

In February 2021, the Perth and Peel regions went into lockdown for the first time in 2021. While most respondents were able to work from home during this time, concerningly 5 respondents working in the Perth and Peel regions reported that their workplace did not permit them to work from home during the lockdown. As indicated by the data obtained through this survey and the 2020 survey, the practice of law can be done effectively from home without compromising quality and productivity. Accordingly, workplaces where working from home is not possible during a lockdown may need to update their policies and workplace practices to keep in step with this new way of working.

Following our 2020 survey, we reported overwhelming support for the ability to work from home. This continues to be the Has fromindicating home that they would like to case with 92working respondents reduced your productivity? retain the option of working from home after COVID-19. Only 3 respondents indicated that they would not like to retain this 35 option.

30

Working from home policies

10 No

Aside from mandated lockdowns, it appears that working from home has continued to be adopted by many legal workplaces.

18 respondents reported that they currently work from home 1-2

25 However,

of those who had worked from home since July responses were mixed as to the extent respondents felt supported by their employer to work from home.

15 2020, 20

respondents reported that their work could not be done from home at all, and most respondents felt that working from home 5 did not reduce their productivity or the quality of their work.

0 1 - not at all

Has working from home reduced your productivity?

70

30

60

25

50

20

40

15

30

10

20

5

10 1 - not at all

2

4

5

6 - a great deal

4

5

6 - a great deal

0

1 - not at all

2

3

4

5

6 - a great deal

Results were mixed as to whether respondents felt that working from home resulte in them having greater independence in their work practices. However, it does appear that access to working from home did have the benefit of greater flexibility i working hours.

Has working from home reduced the quality yourare work?currently If ofyou

permitted to work from home how often do you do so?

60 50

Community Legal Centre

40

Interna�onal firm

30 20

Public sector

10

WA small or bou�que 2 3 lawyers)

1 - not (<20 at all

I am a sole prac��oner or a Barrister

In-house lawyer (private sector)

Na�onal firm

WA mid-sized (20 - 50 lawyers)

Other

WA large (>50 lawyers) 4

5

6 - a great deal

18

70

0

3

3

Has working from home reduced the quality of your work?

35

0

2

3 3

5

5

1-2 DAYS PER WEEK

3-4 DAYS PER WEEK

5 DAYS PER WEEK

1

1

1

1

1

1

1

1

2

3

3

5

7

8

Results were mixed as to whether respondents felt that working from home resulted in them having greater independence in their work practices. However, it does appear that access to working from home did have the benefit of greater flexibility in working hours.

OCCASIONALLY

63

supported by your employer to work from home?

30 25 20 15 10 5 0

To what extent do you feel you have been supported by your employer to work from home?

20 15

4

5

6 - a great deal

1 - not at all

2

3

4

5

6 - a great deal

1 - not at all

2

3

4

5

6 - a great deal

5 15

10

0 10

5

5 1 - not at all

2

3

4

5

6 - a great deal

0

To what extent can yourincreased work Has working from home the be done from home? that you have level of independence in your work practices?

Has working from home resulted in you being able to work more flexible hours?

30

35 30 30 25 25

25

20

20 20

15

15 15 10 10

10

55

5

00

3

35 20 30 15 25 10 20

25

40

2

Has working from home increased the level of independence that you have in your work practices?

To what extent can your work be done from home?

40 25

30

0

30

1 - not at all

not at at all all 11 -- not

22

33

44

55

great 66 -- aa great deal deal

Results were mixed as to whether respondents felt that working from home resulted in them having greater independence in theirfrom workhome practices.

However, Has working resulted in you it does appear that access towork working from home did have the being able to more flexible hours? benefit of greater flexibility in working hours.

30 majority of respondents also felt adequately The supervised while working from home, although a small 25 proportion did not. Further, many respondents felt 20 working from home impacted their ability to form that meaningful relationships with others in the workplace.

15 This highlights the need for employers and supervisors to10 actively engage with juniors working from home, and to put in place new ways of remaining connected (e.g.

5 regular virtual catch-ups) particularly if working from home is required for extended periods of time due to a 0 1 - not at all 2 3 4 5 6 - a great lockdown. deal

64 | BRIEF DECEMBER 2021

0

1 - not at all

2

3

4

5

6 - a great deal

Only 24 respondents indicated that their workplace retained additional measures to support the mental health of employees, while 76 indicated their workplace did not implement such measures. This may be an area where law practices need to make their policies and support measures more robust in the interests of employee health and wellbeing.

have you felt adequately supervised while working from home?

25 20 15

COVID-19 Impact Survey

10 5 0

1 - not at all

2

3

4

5

6 - a great deal

To what extent do you feel that working from home has impacted your ability to form or maintain meaningful relationships with others in your workplace?

If you are an employee requiring supervision, have you felt adequately supervised while working from home?

25 30 20

25

15

20 15

10

10 5 0

5 1 - not at all

2

3

4

5

6 - a great deal

To whatofextent do you feel that working from For the majority respondents, working from home home hastheir impacted your ability to form or has not impacted usual working hours.

However, maintainreported meaningful relationships with others 29 respondents an increase in hours while 11 in your workplace? reported a decrease.

0

1 - not at all

2

3

4

5

6 - a great deal

not expected to be available or contactable at all times. It is also critical that workplaces ensure that working hours do not become unreasonable, in the interests of employee health and wellbeing.

This shows that it continues to be critical, as working from 30 home becomes more prevalent, that workplaces ensure 25 their employees have a right to “switch off” and are that 20 15 10 5 Barriers to working from home 0

1 - not at all

2

3

4

5

What are the three main barriers to being able to do your work from home?

60.00% 50.00% 40.00% 30.00% 20.00% 10.00% 0.00%

6 - a great deal

Reliance on paper and court attendance were the most commonly reported barriers to working from home (in the top three for 40 and 50 respondents, respectively). Client meetings, IT equipment at home, the home environment and employer policy also featured as barriers for many respondents, more so than employer IT capability.

Perhaps unsurprisingly, court attendance featured prominently among respondents working in boutique firms and the public sector.

Employer policy was a prominent barrier reported by public sector lawyers, perhaps suggesting that the public sector is falling behind the private sector in this respect. Interestingly, a greater proportion of respondents from international firms selected home environment and IT equipment at home as the main barriers to working from home, perhaps suggesting that international firms have successfully minimised other barriers over which the employer has control.

65

COVID-19 Impact Survey What are the three main barriers to being able to do your work from home?

25

21

20 15 10 5

17

15

111

2

11

3 333 1 1

5 2 1 1

8

7

5

1

14

7 3

4

1

4

1

6 2

8 4

33

5

11

9 5

11

0

Court a�endance

Client mee�ngs

Employer IT capability

IT equipment at home

Home environment

Employer policy

NB: this figure (shows numbers of respondents indicating factors which are in their “top three” barriers to working from home.

Because respondents were not equally divided between workplace types (e.g. a greater number of public sector lawyers responded to the survey than CLC lawyers), caution needs to be taken when comparing response levels between workplace types.

However, it was apparent that a flexible working from home policy can also be insufficient, and that workplace cultures are also at play. Several respondents reported limitations on working from home placed on junior employees, “dated mindsets” and concerns that working from home will be viewed negatively by their employer. Further, one respondent reported that even though their firm has a working from home policy, they are concerned about the attitude of the partner towards staff members who utilise this option. This respondent felt that young lawyers who work from home will be perceived as lazy and not doing their work while at home.

These responses suggest that some workplaces are still out of step with the desire of many junior lawyers to have work from home options, and the evidence reported in this survey and in the 2020 survey that working from home has not significantly impacted most lawyers’ productivity.

Conclusion The Young Lawyers Committee supports junior members of the legal profession having access to working from home options.

The data in this survey and the 2020 survey shows that there is strong support for working from home options from junior members of the profession, and that working from home does not mean that productivity or work quality will be compromised, or that juniors will not be adequately supervised.

However, it is important that junior members of the profession have a choice in this respect and are not required to work from home on a permanent basis (unless there is a lockdown). The results also show that working from home, especially for prolonged periods of time, can impact developing meaningful relationships at work, which can in turn impact mental health and junior lawyers’ careers. It is vital that employees working from home are appropriately supported in this respect.

Lastly, it remains the case that some respondents have experienced increases in their usual working hours while working from home. With modern technology making it easier to remain connected, it is critical that employees working from home have the right to “log off” at a reasonable hour and on weekends.

66 | BRIEF DECEMBER 2021

Aunt Prudence Juris Dear Aunt Prudence, Family Christmas parties are coming up and I don’t want to have to talk about another second cousin’s dividing fence dispute. What do I do?

- I’m Not That Kind of Lawyer Dear I’m Not That Kind of Lawyer, Your Aunt feels your dismay at our perennial problem — after a long year at the office the last thing you want is to be sorting out your Great Uncle’s messy divorce at the holiday barbecue.

Your Aunt has two suggestions. First, always answer with a simple but effective ‘it depends’. Don’t tell them what on. It’s technically an answer, definitely not legal advice, and absolutely unhelpful. If that doesn’t make them roll their eyes and walk away, you’ll be amazed at how easy it is to *accidentally* choke on a bone-dry mince pie.

And if that still doesn’t work, at least be glad you didn’t choose medicine. Say what you want, it’s pretty rare that legal advice requires us to ‘check out this rash!’.

- Aunt Prudence

Dear Aunt Prudence, I’ve realised that my life’s savings could buy me about a week of my time at my current hourly rate. If I can’t afford me, what hope does anyone else have? - What If I Get Sued Dear What If I Get Sued, It’s important to remember this isn’t a bug in the system, it’s a feature.

Dear Aunt Prudence, I’m in a strong long-term relationship — with my firm. But recently I’ve started swiping through all my unread LinkedIn recruiter messages. I want to be faithful. What should I do? - The Thrill of The Unknown

If people wanted to be able to afford a lawyer, it would be simple for them to choose to work harder and earn enough to do so. Plainly you, a junior going for the scale $352/hr, and earning nearly twice the median wage, simply haven’t put in the effort to deserve representation if you ever find yourself in a dispute.

Dear The Thrill of The Unknown,

Just remember — ‘a lawyer who acts for themselves has a fool for a client’. So best put that budding house deposit aside in case you’re ever unlucky enough to need to enforce your rights or, God forbid, end up getting sued. - Aunt Prudence

But beware the allure of the greener grass. Sure, other firms’ packages might seem larger than you’re used to, and maybe they’re open to you doing things you’ve always wanted to try. Just remember swapping Partners won’t give you a thrill that lasts.

Do you have a question for your Aunt Prudence? Send all inquiries to younglawyers@lawsocietywa.asn.au and look out for your Aunt’s response in the next edition of Brief.

Your Aunt doesn’t judge — she remembers that new firm feeling. The excitement and passion of those first months. The spontaneity and curiosity.

Your Aunt knows the spark fades over time.

So delete those ‘exclusively briefed’ recruiters’ pitches, and find ways to bring the excitement back to the everyday. Being faithful doesn’t have to be boring. - Aunt Prudence

Top Tips for Working With Self-Represented Litigants (SRLs) Working with self-represented litigants is a lot like navigating a long-term relationship.

We’ve compiled our Top Tips for managing your matters efficiently, maintaining sanity, and keeping relations amicable between you and the other side.

1. Communication is Key Young lawyers’ love language tends to be riddled with abbreviations and acronyms (e.g. SRL), technical terms and jargon. These should be avoided when communicating with an SRL. Keep it clear, open and uncomplicated.

2. Take note It’s important to document every interaction with SRLs. Unfortunately, memory is fallible - particularly when it comes to the compromises made during conferral.

3. One step at a time Civil procedure is confusing at the best of times, even with ready access

to the Red Book. In order to keep the matter running smoothly, consider if it is appropriate to point out the necessary procedural steps to the SRL. This could include clarifying which documents need to be lodged on eCourts, or where to find standard orders online. But keep in mind Top Tip 7!

4. It’s not you, it’s them Even when you’ve used your best endeavours to resolve a matter, an SRL may throw a curveball. It is particularly important to manage your client’s expectations when the other party is an SRL.

5. But also sometimes it is you Although at times you may get frustrated, do not lose your cool. Keep calm and remember Rule 6: you must be honest and courteous in all dealings.

Also, do not think your case is impenetrable. Even left-of-field arguments warrant testing. Rule 6 also requires you to be diligent, not overconfident.

6. Set yourself boundaries Litigation with SRLs can be emotionallycharged and time-intensive. Make it clear that any work undertaken by you is at the expense of your client and that there may be a limit on the number of calls, letters or emails that you are able to make or respond to.

7. Put a ring on it, or not They haven’t engaged you; they are not your client. Try not to get drawn into accidentally legally advising SRLs. There’s a fine but important line between explaining the next procedural step, and advising which strategic step should be taken.

8. There’s plenty more fish in the sea Depending on your area of work, selfrepresented litigants may come up on a regular basis. There’s something to be learnt from every matter, including those with SRLs. As always, what doesn’t make you quit, makes you a better practitioner.

67

Event Wrap-up

Mock Trial Competition Grand Final The 2021 Mock Trial Competition featured the largest range of schools in its 35-year history, with 61 schools taking part. 1,093 students participated in the 2021 season, in 112 teams.

President of the Law Society, Jocelyne Boujos, thanked them as well as the many members including associates, practitioners and law students who volunteered their time to coach a team or to judge one or more of the mock trials.

This programme is treasured by many in our community and is made possible by the support of these volunteers.

8 teams from schools with a lower-thanaverage socio-economic status were subsidised under the Student Access Programme , of which Francis Burt Chambers is the Programme Partner.

The Law Society runs the competition as part of the Francis Burt Law Education Programme, which gives students an enjoyable and dynamic introduction to the law. The mock trials are fictional civil and criminal cases, with the rules of evidence and procedures modified and simplified. Each team prepares their own case and the students take on the roles of barristers, solicitors, court staff and witnesses. Students are judged on their opening addresses, witness examinations, objections based on responses, closing statements and other court activities.

Teams of between eight and 12 compete in the Supreme Court and, if required, the Mandurah or Bunbury Courthouse.

The Law Society of Western Australia thanks the Department of Justice for providing the use of the courts for the 175 mock trials.

The last trial of the season, the Grand Final, took place in October in Court 1 of the Supreme Court of Western Australia, with the Hon Chief Justice Peter Quinlan presiding. The school students were delighted and honoured to appear before the Chief Justice in the ceremonial courtroom.

The winning team was from St Mary’s Anglican Girls’ School in Karrinyup. Their coach, Craig McIntosh, has supported St Mary’s mock trial teams for many years, and was assisted by teacher Warren Hennessy, a lawyer also. The runnerup team, from Christ Church Grammar School, was ably coached by UWA law student Tom Robins.

68 | BRIEF DECEMBER 2021

Lawyers interested in volunteering as a coach or judge in 2022 are invited to contact the Mock Trial Coordinator at mocktrial@lawsocietywa.asn.au

The Law Society would especially like to thank Sam Hemachandra and Grace Ritter of FourLion Legal for devising and producing the case materials for the Grand Final trial. Their enthusiasm and support for the Mock Trial Competition is immensely appreciated.

We extend our thanks to the following members of the profession who volunteered as coaches or judges in the 2021 Competition. The programme would not be possible without your support.

Above: The two Grand Final teams with teachers, coaches, The Honourable Peter Quinlan Chief Justice of Western Australia and Jocelyne Boujos, President, The Law Society of WA.

Above: The winners are announced!

Above: St Mary’s Grand Final team.

Premium Partners

Student Access Partner

WA Law School Partners

COACHES Amy Bradley Anna Prentice Anthony Durand Belinda Hermawan Briannen Morrow Caitlyn West Claire Rossi Craig McIntosh Danika Adair-La David Scanlan Dino Todorov Eamonn Bochatt Emma Campanella Eugene Wong Gemma Cronin Hayley McNamara Helena Trang Jack Killoh Jacqueline Brown Jessica Tower Jo Feldman Joel Grinceri John McKechnie Jonathan McCoy Kiri-Lee George Lillian Catovic Marc Saupin Matthew Glatzel Menka Orellana Michelle Harries Midaiah Harnett Natalie Mulvaney Nicholas CamerPesci Nicola Pike Paul Catalano Pippa Atthowe Rein Squires Sam Jones Sarah Harvey Stephanie Powell Tara Prentice Tawnee Dickinson Tom Robins Vishnu Parmar Zanthi Jordan

Greg Mohen Hannah Pike Heidi Watson James Bordi James Marzec Jane Vickery Jarrad Goold Jay Tampi Johanna More Jonathan Kirke Joseph Sabbagh Justine Ralph Keely Liddle Leishae Burke Leslie Gabriel Maddison Reid Marilyn Bromberg Marina Greenshields Michael Cornes Natalie Wigg Nicholas Mountain Patrick Mackenzie Philip Hardless Rachael King Rhianna Brims Rob Coales Robert Lilley Sam Coten Sam Hemachandra Seamus Rafferty Sean Stocks Shan Nanayakkara Shana Yeap Simon Quenby Stephen McGrath Tom Camp Tim O’Leary Tim Lethbridge Veenela Veerasamy Zoe Kalimeris

JUDGES Adam Ebell Alex McVey Alexander Gibson Amy Bradley Andrew Giorgi Aoning Li Asanka Gunasekera Ashley Roberts Ashooja Chandra Bridget Rumball Caris Tysoe Chadd Graham Cheyne Beetham Clancy Hindmarsh Clinton Ducas Daniel Coster Daniel Harrop Daniel Morey Daphne Schilizzi David Mulligan Elisha Rayner Elmi Carlean Gad Coffie Georgina Due Gerald Hoe Grace Ritter

69

Mock Trial Competition Grand Final Event Wrap-up

Francis Burt Chambers Student Access Partner

T

he 2021 Mock Trial competition attracted teams from across the metropolitan area and students from a wide range of backgrounds with a variety of aspirations – thanks in part to the Student Access Programme which ensures equality of access for all schools.

Francis Burt Chambers is the Competition’s Student Access Partner, and barrister Pip Honey (whose name appears on the winners’ trophy from her own years in the Mock Trial Competition) was at the Grand Final presentations to explain why supporting equal access was a priority.

“Equality of access is important because it results in diversity,” said Ms Honey.

“What the profession of law benefits from most is diversity – diversity of ideas, diversity of viewpoints, diversity of interests, which comes from members being from diverse backgrounds.

“A diverse profession is more just, productive and intelligent. Diversity often leads to different questions being asked, and better analysis, solutions and processes.

“Diversity also creates greater public trust and confidence in the rule of law.

Diversity and inclusion are better for the

70 | BRIEF DECEMBER 2021

profession and have flow-on benefits for the community as a whole. This is why Francis Burt Chambers is such a proud supporter of the Student Access Partnership and what the programme seeks to achieve.

“Through this partnership with The Law Society of Western Australia, Francis Burt Chambers has helped more students access this valuable experience. The skills you learn in public speaking, communication, advocating for a position and presenting an argument are so valuable, whether you have ambitions to become a lawyer or not.”

Baldivis Secondary College was one of many schools to benefit from the Student Access Programme and teacher Miss Ashley Lloyd said: “The Mock Trial Competition has been such a great experience for my students. They have grown academically but also improved their confidence.”

Members from Francis Burt Chambers and others also support the Mock Trial Competition as volunteer judges and coaches for the Mock Trial teams.

WA Case Notes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever.’

Case note of Laufer v Gear [2021] WASCA 2 INTRODUCTION In the recent decision of Laufer v Gear [2021] WASCA 2, the Court of Appeal (WA) dismissed an appeal by the de facto husband against a decision of O’Brien J in the Family Court of Western Australia, in which O’Brien J held that the de facto wife was “resident” in Western Australia on the day on which she made an application to the Family Court of WA. Section 205X(a) of the Family Court Act 1997 (WA) (“the Act”) provides that at least one of the de facto parties to an application seeking alteration of property interests must be resident in Western Australia on the day on which the application is made.

The parties had each spent a significant proportion of their time in another country both during their relationship and post separation.

The de facto husband appealed the decision of O’Brien J, contending the Court did not have power to make financial orders between the parties as neither party was resident in Western Australia on the day the application was made.

Legal principles In regards to the meaning of “resident” the Court of Appeal held at paragraph 34: 34 “Section 205X(a) of the Act uses the general language of ‘resident in’, without qualification by reference to ‘habitual’, ‘usual’, ‘principal’ or ‘ordinary’. The temporal connection for this criterion is ‘the day on which the application was made’. The generality with which s 205X(a) is expressed, in the context of s 205X read as a whole, and in the context of its application as a criterion for access to remedial legislation, tends to indicate that s 205X(a) is intended to be given a broad construction, consistent with the actual language employed and insofar as it is fairly open on the words used. It ought nevertheless not be given a construction which is unnatural or unreasonable.”

The Court went on to state at paragraphs 36 to 38 inclusive: 36 “‘Resident’ in this context encompasses residences of differing permanency. It connotes a connection with Western Australia by habitation in the State, even temporarily, at the time the application was made. It imports no particular degree of permanence, although it connotes more than the mere sojourn of a visitor to or transient presence in the State.

37 The factual circumstances which may amount to a sufficient nexus to constitute residence in a State are many and varied. Whether a person is a ‘resident’ is a question of fact or (and this really amounts to the same thing for present purposes) a question of fact and degree.

38 The person’s past and present intentions, although not determinative, will often bear upon the significance that is to be afforded to particular circumstances.”

The Court held that while not imposing a singular test, the matters referred to in the decision of Hafza v Director General of Social Security (1985) 6 FCR 444 are relevant considerations as to whether a party is a ‘resident’ within the meaning of s 205X(a) of the Act. The Court quoted from the decision of Hafza v Director General of Social Security (supra) at paragraph 40 as follows: 40 “Wilcox J [in Hafza] did comment at 449: ‘... As a general concept residence includes

Temporary absence does not terminate residence. [Wilcox J in Hafza] said at 449 450: ‘... The test is whether the person has retained a continuity of association with the place ... together with an intention to return to that place and an attitude that that place remains “home”.’ (emphasis added)”

Discussion In this case, the de facto wife had made an initiating application in the Family Court of WA on 6 September 2016.

The Court of Appeal held the de facto wife was a resident in Western Australia on the day on which the application was made on the basis of the following facts as found by the primary judge (paragraph 44): 1. “The de facto wife (and the de facto husband) resided in Western Australia when the de facto relationship commenced in late 2002.

2. The parties were resident together in Western Australia for over one third of the duration of the de facto relationship.

3. The parties only moved out of their apartment in Western Australia in 2013.

4. In the period 2014 - 2016, the de facto wife spent between 18% of her time (nearly one fifth) and 30% of her time (nearly one third) in Western Australia.

5. The de facto wife maintained her joint ownership of the apartment in Western Australia up to October 2016.

6. The de facto wife had no long term residency or right to work in Country A, and she returned to Western Australia frequently to live during 2015 - 2016 and stayed for around three to four weeks at a time. On those occasions, up to 3 June 2016, she stayed in Perth with her then Australian boyfriend. Thereafter, she had a room at a friend’s house, where she kept her personal belongings and clothing. Her absences from Perth were always accompanied with an intention to return.

7. The de facto wife retained an Australian passport throughout (and beyond) the period to 6 September 2016, and described herself as an Australian resident. She was also an Australian resident for tax purposes.

8. The time spent in Country A, whilst significant, was, in part, driven by the de facto wife’s charitable work in Country A. The charity was registered as an Australian business and had a postal and business address in Western Australia.

9. The de facto wife’s health needs continued to be met in Perth over the period up to and beyond 6 September 2016, and she maintained Australian health insurance.

10. In 2016, the de facto wife stayed in Western Australia for around 111 days. It was during a stay in Western Australia in that year that she filed the application. There is no indication in the judge’s findings that she was in Perth on 6 September 2016 merely for the purpose of lodging the application.”

Conclusion The Court of Appeal found, on the basis of the above facts, that “the de facto wife had done nothing to divest herself of the character of resident of Western Australia” and drew the inference that on the date

she made the application she was therefore a resident of WA. The Court dismissed the appeal by the de facto husband. The de facto wife had made a crossappeal however the Court found it unnecessary to address the merits of the cross-appeal and dismissed it for procedural reasons.

Dianne Caruso is a Senior Associate in the Family Law team at HHG Legal Group.

Porter v Australian Broadcasting Corporation [2021] FCA 863 In Porter v Australian Broadcasting Corporation [2021] FCA 863, the Federal Court ordered the removal of the ABC’s unredacted defence to Christian Porter’s defamation claim from the Court file, so that the redacted parts cannot be seen by the public. The ABC and Porter agreed to this order as part of their settlement of the substantive proceedings, but Jagot J heard submissions from news publishers opposing the order before making it.

Interestingly, Jagot J found that “the only proper grounds for making an order that a document be removed from a Court file … are also the grounds which permit the making of a suppression or nonpublication order” [44] – orders which the court has long accepted are “not lightly made” in view of the open justice principle. Jagot J suggested that the Federal Court Rules may need amendment [87], to the extent that they suggest that documents could be removed from the court file on some wider basis of “confidentiality” [91]. Her Honour said that parties “should not expect that a judge will necessarily make [such] orders on the basis of nothing more than [their] consent” and “should expect that a judge may need to be provided with evidence and submissions as to why such an order can and should be made” [82].

The settlement agreement only required the ABC and Porter to agree to the orders, and was not conditional on the court actually making them [101]. But Jagot J accepted that in substance, by refusing to make the orders, “the Court would be re-writing the contract of the parties” [104]. Not making the orders “may involve prejudice to the proper administration of justice by potentially discouraging parties from settling all elements of their dispute” [105]. It was also significant that Porter had applied to strike out the defence, and neither that application nor the merits of the defence would ever be determined in court [106].

In accordance with the parties’ agreement, Jagot J did not decide whether Porter was right to argue that the redacted portions of the defence constituted an abuse of process [114].

Jagot J said that the parties were “not obtaining ‘special treatment’ or extracting from the Court any protection greater than ‘ordinary parties’” [111], and did not address the factual substance of the proceedings in any detail. So, while “it is only in exceptional and special cases that courts are entitled to exclude public access to the processes with which they deal” [54], it seems that where one party has applied to strike out a pleading and both parties agree to suppress it as part of a settlement, that is exceptional enough. It would be interesting to know why the ABC, as a public broadcaster, felt that it was appropriate to agree to the suppression of its pleadings, but it seems unlikely that reasons could be given publicly for that decision without undermining the agreement.

Scott Young - Solicitor 71

Change the Culture Training Addressing Sexual Harassment in the Workplace Learn the essential skills and tools required for your organisation to comply within our rapidly evolving social landscape.

Our highly interactive workshop explores differing harassment scenarios and the best practices & procedures required to deal with them with expert Law Society facilitators.

Structured over 6 chapters it incorporates four video resources which address real life stories, ‘the incident’, active bystanding and role modelling, the complaint, diary room, call to action and support services.

Learning Outcomes Greater awareness of what constitutes sexual harassment Awareness of predominant traits and culture that drive poor behaviour Knowledge of the role of bystanders and the 5Ds in responding as an Active Bystander Understanding the importance of policies and procedures to deal with sexual harassment Value the role of leadership in modelling positive workplace behaviour

CPD Points The workshop is delivered by a specialist senior

trained facilitator in a 90 minute format, providing up to 1.5 CPD points in Practice Management.

More Info/Book To book one of our monthly workshops or get more info click here or visit lawsocietywa.asn.au/cpd-seminars For special inhouse training contact Áine Whelan at awhelan@lawsocietywa.asn.au

HIGH COURT JUDGMENTS Dr Michelle Sharpe Castan Chambers, Melbourne

Criminal Law Recklessness In the High Court decision of Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26 (1 September 2021) the High Court was required to determine the standard of recklessness required to establish the indictable offence of recklessly causing serious injury under s17 of the Crimes Act 1958 (Vic) (Crimes Act).

Section 17 of the Crimes Act (which came into force in 1986) simply provides: “A person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence”.

The Crimes Act does not define “recklessly”. The Victorian Court of Appeal in R v Campbell [1997] 2 VR 585 (Campbell) held that the standard of recklessness required, under s17 of the Crimes Act, is foresight of the probability of harm. In doing so, the Court of Appeal in Campbell overturned a long line of Victorian authorities in which it has been held that the test for recklessness merely required foresight of the possibility of harm. In reaching its conclusion, the Court of Appeal in Campbell, applied the decisions in R v Crabbe (1985) 156 CLR 464 and R v Nuri [1990] VR 641. In both cases the Court adopted a standard requiring the foresight of the probability of harm. Neither case concerned s17 of the Crimes Act. But the Court of Appeal considered that the same principles applied in Crabbe (which was concerned with murder) were relevant to an offence under s17.

And the Court of Appeal held that all the relevant sections in this group of the Crimes Act should apply the same test of recklessness applied in Nuri (which was concerned with s22 of the Crimes Act). Decades later, the High Court in Aubrey v The Queen (2017) 260 CLR 305 confirmed that the degree of recklessness required for the statutory offence of maliciously inflicting grievous bodily harm in New South Wales was the foresight of the possibility, and not probability, of harm.

The Director of Public Prosecutions for

Victoria (DPP) subsequently referred the correctness of Campbell as a point of law for the opinion of the Victorian Court of Appeal. In a joint judgment, the Court of Appeal (Maxwell P, McLeish and Emerton JJA), applying the “re-enactment presumption”, held that, irrespective of the correctness of the decision in Campbell, the legislature had plainly approved of the decision by subsequently making a number of amendments that directly concerned s17 of the Crimes Act. These amendments were made by the Sentencing and Other Acts (Amendment) Act 1997 (Vic) (1997 Amendments) and the Crimes Amendment (Gross Violence Offences) Act 2013 (Vic) (2013 Amendments). The Court of Appeal concluded that, until such time as the legislature amended s17 of the Crimes Act, the meaning of “recklessly” is as set out in Campbell.

The DPP appealed to the High Court.

By a narrow margin of 4:3 the High Court dismissed the appeal. Gageler, Gordon and Steward JJ, in a joint judgment, observed, at [51], that: “Where Parliament repeats words which have been judicially construed, it can be taken to have intended the words to bear the meaning already judicially attributed to them”. This is the “re-enactment presumption” which their Honours note, at [51], has a long history. Their Honours also note that the presumption is not based on a fiction. The presumption may be applicable because the legislative history reveals an awareness by Parliament of a particular judicial interpretation. To this end, the timing between a decision and an enactment will also be relevant.

Here, their Honours agreed with the Court of Appeal, at [43]-[50], that the 1997 Amendments and the 2013 Amendments could only be understood on the basis that the legislature was aware of, and accepted, the Campbell definition of “recklessly”. These amendments, their Honours observed, at [57], were “based on the nature and extent of the criminality and culpability of a contravention of s17 as stated in Campbell”. And the 1997 Amendments, their Honours noted at [54], were made just two years after Campbell.

Their Honours also referred, at [59], to the fact that Campbell was decided some 25 years ago as reinforcing their conclusion not to disturb the decision adding “This Court is reluctant to depart from long-standing decisions of State courts upon the construction of State statutes, particularly where those decisions have been acted on in such a way as to affect rights”.

In a separate judgment Edelman J, while expressing “‘considerable hesitation” at [65], also dismissed the appeal. The “three significant constraining factors” Edelman J identifies, at [66], as leading him to this conclusion include: that the decision in Campbell cannot be thought to be plainly wrong, the decision in Campbell formed part of the background to the 1997 Amendments and the 2013 Amendments and the definition of recklessness enunciated in Campbell has been adopted in Victorian courts for 26 years “without any obvious inconvenience”.

In dissent, Kiefel CJ, Keane and Gleeson JJ, considered, at [7], that there could be no doubt that the decision in Campbell is wrong. Noting the re-enactment presumption, their Honours also observed, at [11] and citing Salvation Army (Victoria) Peroperty Trust v Fern Tree Gully Corporation (19520 85 CLR 159 at 174, that the presumption cannot be used to perpetuate an erronous construction of a statutory provision. In any event, their Honours considered, at [23], that there are no secondary materials that support the assumption that the legislature was aware of Campbell at the time of the 1997 Amendments. And their Honours also considered, at [27][28], that the secondary materials for the 2013 Amendments did not provide a reliable basis for an enactment presumption. Their Honours, in dissent, conclude that the error in Campbell should be corrected and did not consider, at [34], the “‘mere passage of time” to be an impediment. Their Honours could not see that anyone, tried after Campbell, would have suffered any injustice since those people would have been tried under a higher standard.

73

Defamation Publication In the High Court decision of Fairfax Media Publications Pty Ltd v Voller [2021] HCA 25 (8 September 2021) the High Court had to wrestle with a very 21st century problem: unkind Facebook posts. Here the High Court was required to determine whether news organisations, each maintaining a Facebook page, were publishers of defamatory comments posted by third parties on their Facebook page.

The respondent (Voller) had been incarcerated in a juvenile justice detention centre in the Northern Territory. The appellants had posted hyperlinks to news stories referring to Voller on their Facebook pages.

Clicking the hyperlink takes the reader to the full story on the appellants’ news website. Readers are invited, by options which appear under the post, to “‘Like”, “Comment” on or “Share” the post. These options were standard features of the Facebook page and features which could be seen or read by other Facebook readers.

Facebook users responded to the appellants’ news posts about Voller with comments that were defamatory to him. Voller brought proceedings in the Supreme Court of New South Wales alleging that the appellants were liable as publishers of the users comments (FB Comments). The parties agreed to have the issue of publication decided separately from the balance of the proceedings.

At first instance, the primary judge (Rothman J) held that the appellants were publishers of the FB Comments.

New Members Associate Membership Mrs Lynda-Maree Hawthorn University of Notre Dame Australia Miss Luca Zimmermann The University of Western Australia Ms Siena Ellison The University of Western Australia Ms Chelsea Yates Ms Shannon Renner Murdoch University Ms Simone ONeill Murdoch University Ms Romany Bailey Brown University of Notre Dame Australia Mr Alex Gall Edith Cowan University Mr Alex Hackett MinterEllison

74 | BRIEF DECEMBER 2021

The trial judge’s decision was upheld on appeal (Simpson A-JA, Meagher and Basten JJA). The appellants subsequently appealed, unsuccessfully, to the High Court.

The plurality consisting of Kiefel CJ, Keane and Gleeson JJ (in a joint judgment) and Gordon and Gageler JJ (in their own joint judgment) dismissed the appeal. The tort of defamation is committed in Australia on “the publication of defamatory matter of any kind”: Defamation Act 2005 (NSW) (Defamation Act), s7(2). The Defamation Act does not define what is meant by “publication” of defamatory matter. As Kiefel et al observed, at [10], resort must be had to the general law to determine the meaning of “publication”. The plurality, citing Webb v Bloch (1928) 41 CLR 331 and Trkulja v Google LLC (2018) 263 CLR 149, held that any act of voluntary participation in the communication of defamatory matter to a third party is sufficient to make the defendant a publisher: Kiefel CJ et al at [3] and Gordon and Gageler JJ at [96]. The plurality noted the availability of the “defence” of innocent dissemination under s32 of the Defamation Act, but observed that the defence was only available to those publishers ignorant of the existence of the defamatory comment: Kiefel CJ et al at [48] and Gordon and Gageler JJ at [62]. But, as Gordon and Gageler JJ observed at [102], “the appellants’ attempt to portray themselves as passive and unwitting victims of Facebook’s functionality has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences”. And their Honours also considered that,

here, the case of Oriental Press Group Ltd v Fevaworks Solutions Ltd (2012) 16 HKCFAR 366 (an internet discussion forum on which users posted defamatory matter) was aposite.

In dissent Edelman J and Steward J allowed the appeal in part in separate judgments that, as Edelman J noted at [143], substantially overlapped. Their Honours held that the appellants were only liable for FB Comments that had a connection to the subject matter posted by the appellants that is more than remote or tenuous. Edelman J argued, at [142], that there was no basis, on any of the evidence before the primary judge, to conclude that the appellants intended to publish “anything and everything” unrelated to the posted news story.

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.

New members joining the Law Society (October & November 2021) Miss Minnie Bhowmick Brand Barristers & Solicitors Mr Paul Chambers Mrs Shelley Duncan Curtin University

Ordinary Membership Mr Conor Reidy B Legal Lawyers Ms Taylah Bell Wheatbelt Community Legal Centre

Ms Ishtar Steggall Perth Family Lawyers Ms Caitlin Casey Lynn & Brown Lawyers Miss Heather Urry Johnson Winter & Slattery Ms Gabrielle Osorio Herbert Smith Freehills Mr Liam Heldt Larri Legal Pty Ltd

Part-time Membership

Mrs Sarah-Jane Moltoni King & Wood Mallesons

Mr Daniel Giglia

Mr Chris D’Costa Grondal Bruining

Restricted Practitioners Mrs Zoe Osborne DLA Piper Australia

FEDERAL COURT JUDGMENTS

By Anthony LoSurdo SC and Dr David J Townsend

Bankruptcy Appeals from decision finding whole or part of interests in properties held on resulting trust for bankrupt – where properties registered in names of parties associated with bankrupt – whether bankrupt provided all or part of purchase price for properties – whether presumption of resulting trust rebutted by evidence of intention of bankrupt to contrary – available inferences.

El-Debel v Micheletto (Trustee) [2021] FCAFC 117 (30 June 2021) (Markovic, Derrington and Colvin JJ).

Background The trustees of the bankrupt estate of Mr Bachar El-Debel (Current Trustees) alleged that all or part of the purchase price for four parcels of land registered in the names of parties associated with the bankrupt had been provided by him and therefore that the whole or part of the interests of those associated parties in the properties were held on resulting trust for the bankrupt and was property divisible among the creditors of the bankrupt.

Two appeals were brought against the decision by the primary judge who upheld the claims of the Current Trustees. The first appeal, brought by the bankrupt, his wife and his mother, was confined to discrete points of law while the second appeal, by a company associated with the bankrupt, challenged the inferential reasoning process used by the primary judge in upholding the claims by the Current Trustees.

The decision provides a timely and helpful reminder of the principles concerning resulting trusts including the circumstances in which a presumption of a resulting trust will be rebutted, the proper approach to factual findings on appeal and guidance as to the process of inferential reasoning.

Principles concerning resulting trusts The legal reasoning by the primary judge as to the principles to be applied in determining whether property is held on resulting trust was accepted as being correct by all parties to the appeals. This reasoning was: a presumption of a resulting trust arises where one person provides the purchase price of property which is conveyed into the name of another person in deciding whether a presumption of a resulting trust has been rebutted the Court must reach a conclusion on the whole of the evidence the presumption of a resulting trust may be rebutted by evidence which manifests an intention to the contrary, but should not give way to slight circumstances the extent of the beneficial interest of the parties arising by reason of a resulting trust must be determined when the property was purchased it is the intention of the person who provides part of the purchase price that is relevant when considering whether the presumption may be displaced by contrary evidence if part of the purchase price is provided by being borrowed on a mortgage, the presumption of a resulting trust is applied by treating the moneys raised by the mortgage as a contribution by the person who is liable to repay that money.

Proper approach to factual findings on appeal To succeed an appellant must demonstrate an error of law or an error infecting a finding of fact (see Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[30] and Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301 at [45] [53]).

Where factual error is alleged, an

appellate court must show restraint with respect to interference with such primary or secondary factual findings by the trial judge as were likely to have been affected by the trial judge’s impressions as to witness credibility or reliability; an appellate court should only interfere with factual findings of this kind where the factual findings were “glaringly improbable” or “contrary to compelling inferences”. Subject to this, an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge (Lee v Lee [201] HCA 28; (2019) 266 CLR 129 at [55]).

The process of inferential reasoning Although permissible inference and mere conjecture exist on a continuum, there is a distinction between them (Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at [84]).

An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. It is a process that requires the application of general human experience to determine whether the hypothesis that is sought to be proved is a conclusion that can be drawn given the alternatives that reasonably may be suggested and the standard of proof required. In a civil case, a permissible inference is one which is more probable on the evidence. However, where two or more competing inferences are equally probable on the evidence, the choice between them is mere conjecture, and is not permissible reasoning (Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 at 173; G v H (1994) 181 CLR 387 at 390).

The result As to the first appeal, the Court found: (a) the primary judge was in error in failing to bring to account a finding that the bankrupt had not been shown to have provided a one-fifth interest in one of the properties

75

(b) whether one of the properties was held on resulting trust for the trustees of the bankrupt’s earlier bankruptcy was a procedural issue only, as an exchange of correspondence between the Current Trustees and the earlier trustees in bankruptcy disclosed that the earlier trustees were content for the Current Trustees to make any claim to a resulting trust for the relevant property on the basis that it was property of one or other of the bankrupt estates. It could be accommodated by upholding the appeal to a limited extent and amending the relief to reflect the nature of the informal procedure that had been adopted between the two sets of trustees.

The first appeal was otherwise dismissed.

As to the second appeal, the Court rejected the contention that the reasoning of the primary judge went beyond the evidence and was based on inferences that were not open. It was upheld to a limited extent as there was insufficient evidence to support a conclusion that moneys in the nature of a deposit were provided by the bankrupt and an associate. Accordingly, the calculation of the percentage interest of the resulting trust in relation to that property required some minor adjustment.

Private International Law – Competition Law Exclusive jurisdiction clause in agreement nominated foreign jurisdiction – proceedings commenced in Australia – stay application – forum for determination of disputes under Part IV of Competition and Consumer Act 2010 (Cth).

In Epic Games, Inc v Apple Inc [2021] FCAFC 122 ( July 2021) the Full Court of the Federal Court of Australia (Middleton, Jagot and Moshinsky JJ) considered whether Australian proceedings should be stayed on the basis of an exclusive jurisdiction clause nominating a foreign jurisdiction, which clause appeared in an agreement between some (but not all) of the parties. Their Honours also considered the role of the Federal Court of Australia (FCA) as the preferable forum for certain disputes under the Competition and Consumer Act 2010 (Cth) (CCA).

76 | BRIEF DECEMBER 2021

Background Epic Games, Inc (Epic Games) is the developer of the game Fortnite, which may be played on smartphones produced

by Apple, Inc (Apple), in addition to other platforms. There are approximately three million players of Fortnite on Apple devices in Australia alone.

Pursuant to an agreement between Epic Games and Apple, apps (such as Fortnite) for use on Apple devices may only be sold through the App Store, and likewise in-app purchases may only be made through the App Store, from which purchases Apple takes a 30 per cent commission. Further, the agreement contained an exclusive jurisdiction clause, limiting litigation arising out of or relating to the agreement, Apple software or Epic Games’ relationship with Apple to the State and Federal courts of the Northern District of California (where Apple is headquartered).

On 13 August 2020, Epic Games introduced its own system for in-app purchases in Fortnite, outside the App Store, whereupon Apple immediately exercised its power under the agreement to cease to distribute Fortnite. Epic Games commenced proceedings in California alleging breaches of various US and Californian competition statutes (Californian proceedings).

On 16 November 2020, Epic Games also initiated proceedings against Apple in the FCA for alleged contraventions of Part IV of the CCA and of the Australian Consumer Law (ACL) (Australian proceedings). The provisions of the CCA and ACL are similar, but not identical, to the statutes which were at issue in the Californian proceedings. On 9 April 2021, the primary judge in the FCA granted Apple a stay of the Australian proceedings, pending Epic Games’ initiating proceedings for the alleged contraventions of the CCA and ACL in California. On 16 April 2021, Epic Games appealed to the Full Federal Court. In the meantime, the Californian proceedings were heard and judgment was reserved on 24 May 2021.

Decision The Full Federal Court allowed the appeal and set aside the stay of the Australian proceedings. Their Honours confirmed that the onus of proof lay on Epic Games, as the party resisting a stay application based on an exclusive jurisdiction clause, but went on to find that, in determining whether to stay the Australian proceedings, the primary judge had made three significant errors in his reasoning.

First, in applying the High Court’s judgment in Akai Pty Ltd v People’s Insurance Co Ltd [1996] HCA 39; (1996) 188 CLR 418, the primary judge had failed to assess whether or not there was a strong reason for refusing the stay having regard to the various considerations on a cumulative basis, and had incorrectly taken each consideration separately.

Second, the primary judge had failed to properly assess the disadvantage of litigation of provisions of high Australian public policy being conducted in the United States. The disadvantage was significant, as the findings of a US court would not be able to be relied on in subsequent Australian proceedings as readily, the Australian Competition and Consumer Commission could not intervene in US proceedings, and the full range of remedies under the CCA would not be available (remedies being part of the law of the forum: Stevens v Head [1993] HCA 19; (1993) 176 CLR 433).

Further, the far-reaching impact which the Australian proceedings would have on Australian consumers diminished the significance of the fact that Epic Games, as an individual company, had agreed to the exclusive jurisdiction clause in its agreement with Apple.

Third, the primary judge had failed to properly evaluate the significance of the Second Defendant, Apple Pty Ltd (an Australian subsidiary of Apple), not itself being party to the agreement which contained the exclusive jurisdiction clause.

Epic Games’ claims against Apple Pty Ltd were substantive, and not merely “parasitic” on the claims against the parent company Apple, and this weighed against a stay being granted.

Their Honours also held that an analysis of the provisions of the CCA and other relevant legislation revealed that there was a legislative policy that claims under Part IV of the CCA should be determined in an Australian court and preferably in the Federal Court (at [99]-[122]). Notwithstanding the desire to avoid clashing outcomes in the Australian proceedings and the Californian proceedings, there were strong reasons not to grant the stay of the Australian proceedings.

Aftermath Apple has applied to the High Court of Australia for special leave to appeal.

At the time of writing, the special leave application has not yet been decided Judgment was delivered in the Californian proceedings on 10 September 2021,

76

largely in favour of Apple, although with one ground in favour of Epic Games. Both Apple and Epic Games have appealed to the US Court of Appeals (9th Circuit) in respect of the grounds on which each party was unsuccessful, and Apple has applied for a stay of the injunction issued against it in the decision below pending outcome of its appeal. Apple has reportedly declined to re-admit Fortnite to the App Store until the conclusion of all legal proceedings in the United States

Corporations Financial services and markets – liquidation – whether the primary judge erred in holding that the date for valuation of client entitlements should be the date of administration.

investors) in respect of a single deficient mixed fund was the date of administration of the relevant companies. The applicant on behalf of a certain category of investors, contended that the primary judge erred and that her Honour should have adopted a date as close as possible to the date for final distribution.

The date of valuation issue arose in circumstances where the administrators/ liquidators had taken the unusual step of permitting investors to maintain open positions after their appointment. Some investors had maintained open positions and the value of some of those positions had increased.

Loo, in the matter of Halifax Investment Services Pty Ltd (in liquidation) v Quinlan (Liquidator) [2021] FCAFC 186 (26 October 2021) (Middleton, Beach and Moshinsky JJ)

A further interesting aspect of the proceedings is that the issue was, at the request of the parties, heard jointly by the Court of Appeal of New Zealand and the Full Court of the Federal Court of Australia sitting in joint session with the two Courts deliberating jointly but each Court issuing its own decision.

Introduction

Decision

Halifax Investment Services Pty Ltd (in liquidation) (Halifax AU) held 70 per cent of the issued shares in Halifax New Zealand Limited (in liquidation) (Halifax NZ). Halifax AU held an Australian Financial Services Licence. It was not a licensed broker but facilitated the acquisition of shares by clients through an online broker and made a range of financial products available to clients. Halifax NZ held a Financial Service Provider’s Licence granted by the Financial Markets Authority (New Zealand).

Halifax NZ also acted as a broker for its clients in respect of various exchangetraded products including shares and warrants.

In dismissing the appeal, the Full Court of the Federal Court:

Prior to the administration and subsequent liquidation of both companies and in breach of applicable statutory requirements, there was commingling between Halifax AU accounts, between Halifax NZ accounts, and between accounts of Halifax AU and Halifax NZ, and there was a deficiency in the funds held by Halifax AU and Halifax NZ to meet client entitlements. The moneys paid to Halifax AU and Halifax NZ by clients were held on trust for the clients’ benefit.

As at the date of administration of the companies there was, relevantly, a single deficient mixed fund.

The issue The primary issue in the proceedings was whether the primary judge erred in holding that the date for valuation of the proportionate entitlements of clients (or

a) noted that the primary judge’s decision with respect to the date of valuation issue was discretionary and that appellate intervention requires satisfaction of the well-established grounds of appeal identified in House v The King (1936) 55 CLR 499 b) stated that the fact that the liquidators permitted investors to maintain open positions and that investors had a choice whether or not to do so, does not support the appellants’ contention as to the adoption of a date as close as possible to the date for final distribution (rather than the date of administration) as the date for valuation of clients’ proportionate entitlements because: (i) having regard to the statutory framework and the nature of the trust, the date of administration provides a logical starting point for the purposes of valuing the proportionate entitlements of clients. To the extent that the trust arose by force of reg 7.8.03, the date of administration triggered the operation of that regulation in the circumstances of this case. To the extent that the trust arose pursuant to s981H of the Corporations Act, while the trust already existed before the date of administration, the administrators

became the trustees of the trust on their appointment as administrators (ii) the deficiency in the mixed fund existed at the date of administration and the fund was first constituted for the purposes of pari passu distribution on that date. In those circumstances, there is a logic in valuing the proportionate entitlements of investors as at the date of administration (iii) the adoption of the date of administration in this case is consistent with authorities that have adopted, in the context of the pari passu distribution of a deficient trust or other fund in shortfall, the date when the fund was first constituted for the purposes of pari passu distribution (see, eg, Re MF Global Australia Ltd (in liq) (2012) 267 FLR 27 and Re Lehman Brothers International (Europe) (in administration) [2009] EWHC 3228 (Ch)).

The Court of Appeal of New Zealand delivered its own judgment (Loo v Quinlan and Kelly (in their capacity as liquidators) [2021] NZCA 561 (Kós P, Cooper and Goddard JJ)), on the same date, and to the same effect, as that of the Full Federal Court. The NZCA judgment is here: https://www.courtsofnz.govt.nz/assets/ cases/2021/2021-NZCA-561.pdf.

Practice and Procedure Offers of compromise – indemnity costs orders – common law (Calderbank) offer of compromise – whether rejection of offer imprudent or unreasonable.

In Hardingham v RP Data Pty Ltd (No 2) [2021] FCAFC 175 (1 October 2021) the Full Court of the Federal Court of Australia (Greenwood, Rares and Jackson JJ) considered the question of what content was required to constitute an effective offer of compromise under the principles in Calderbank v Calderbank [1976] Fam 93 (Calderbank) and, where the offer was rejected and the offeree failed to better the offer in judgment, whether rejection of the offer by the offeree qualified as “imprudent or unreasonable” such as to give rise to an indemnity costs order in favour of the offeror.

Background At trial, the primary judge held that copyright in certain photographs and

77

plans held by Hardingham and exclusively licensed to Real Estate Marketing Australia Pty Ltd (REMA) was not infringed by RP Data Pty Ltd (RPD). (The role played by another party, Realestate.com.au Pty Ltd, in the trial and appeal is not considered in this case note and is excised for the sake of clarity.) The basis for the decision was that the contract between REMA and RPD was to be construed such as to contain a term allowing for use of the photographs and plans by RPD, which term was either to be inferred from their course of dealing or implied in order to give business efficacy to their agreement.

Costs of the trial were ordered to be borne

by Hardingham and REMA. Hardingham and REMA appealed to the Full Federal Court. In the course of correspondence after institution of the appeal, Hardingham and REMA informed RPD that, although they had litigation funding for the costs of the trial, it did not cover an adverse costs order at trial nor did it cover the appeal proceedings (which were being conducted by Hardingham and REMA’s lawyers on a speculative basis).

The offer After the filing of the notice of appeal

by Hardingham and REMA, but before the parties had filed their outlines of argument on the appeal, the solicitors for Hardingham and REMA sent a letter to the solicitors for RPD proposing terms of compromise of the appeal (Offer).

The Offer proposed that the appeal be dismissed save that the costs order of the primary judge be varied such that each party bear their own costs of the trial, and further that each party bear their own costs of the appeal. The Offer was described as being a “walk away” offer, on the basis of the impecuniosity of the appellants and the impact of COVID-19 on the appellants’ business.

Importantly, the Offer did not constitute an offer of compromise under Pt 25 of the Federal Court Rules 2011 (Cth), as it was not open for a minimum of 14 days as required by r25.05(3) and was not in accordance with the form required by r25.01(1). Therefore, if the Offer were to be effective as an offer of compromise with consequences for the making of costs orders, it could only be so under the common law principles enunciated in Calderbank.

The heading of the Offer contained the words “without prejudice save as to costs”. The Offer did not express itself as being made pursuant to the principles in Calderbank, nor otherwise refer to

78 | BRIEF DECEMBER 2021

Calderbank. The Offer did not refer to the potential of being relied on in support of an argument for indemnity costs. The Offer did not engage with the merits of the parties’ cases on appeal, nor explain why the Offer was a reasonable one.

The Offer was rejected by RPD. The appeal proceeded and judgment was ultimately delivered in favour of Hardingham and REMA, with the question of costs reserved.

The question of costs fell to be decided by reference to the Offer. RPD accepted that they should pay Hardingham and REMA’s costs of the appeal on a party-and-party basis, but opposed that they should pay Hardingham and REMA’s costs on an indemnity basis from the date of the expiry of the Offer.

Decision In contradistinction to an offeror’s entitlement to certain costs orders where an offer was made under Federal Court Rules Pt 25 (and analogues such as Supreme Court (General Civil Procedure) Rules 2015 (Vic) Ord 26), where an offer was made under common law principles, the making of any costs orders remains in the discretion of the Court. Case law has established that a rejected Calderbank offer may result in an indemnity costs order where the rejection was “imprudent or unreasonable”, although there is no presumption in favour of such an order merely because the offeree has failed to better the offer in judgment.

Form of the Offer There is no rule that the offeror must provide a reasoned explanation of the weaknesses in the offeree’s case and the reasonableness of the offer (at [22]).

Further, the requirement that parties comply with the overarching purpose of facilitating a just resolution of disputes as quickly, inexpensively and efficiently as possible is taken into account when the Court exercises its discretion as to costs, and this in effect requires the offeree to consider the reasonableness of the offer whether or not the offeror has explained its supposed reasonableness (at [23]).

The Court flatly rejected the submission that the Offer did not qualify as a Calderbank offer merely because it did not explicitly cite Calderbank or because it did not explicitly refer to the seeking of indemnity costs. Given the inclusion of the words “without prejudice save as to costs” in the Offer, RPD could not have been in any doubt as to the basis on which the Offer was made and the indemnity

costs consequences thereof: regardless of the Offer, success on the appeal would have ordinarily led to a party-and-party costs order in favour of Hardingham and REMA anyway, so the only consequence of the Offer can have been in respect of indemnity costs (at [24]-[25]). Given the quantum of legal costs in commercial litigation, it was recalled that an offer to “walk away” at a certain point in litigation did represent a genuine compromise, as the offeror was thereby foregoing the possibility of recovering its legal costs incurred to date.

Reasonableness of rejection of the Offer The reasonableness of an offer falls to be determined from the perspective of the offeree at the time of the offer, but this question does not involve considering what other offers might hypothetically have been made or other outcomes might hypothetically have been negotiated (at [30]). The Court held that the rejection of the Offer was imprudent and unreasonable due to several factors. First, RPD was aware that Hardingham and REMA were impecunious and that their litigation funding did not cover the adverse costs order below, so there was no real prospect of RPD recovering those costs anyway.

Second, RPD was aware that Hardingham and REMA’s litigation funding did not extend to the appeal, such that even if the appeal were ultimately dismissed, any legal costs of the appeal incurred by RPD would likely end up being irrecoverable as well.

Third, RPD was aware that Hardingham and REMA’s impecuniosity had been aggravated by the then-current COVID-19 lockdown. Fourth, RPD was indeed able to assess the reasonableness of the Offer because it was aware of the strengths and weakness of the parties’ respective cases: the notice of appeal had already set out the legal issues to be argued by the appellants and RPD was already familiar with the factual issues, which were the same as in the trial below (at [28]).

Accordingly, the Court ordered that RPD pay Hardingham and REMA’s costs of the appeal on a party-and-party basis up to the time of the expiry of the Offer, and thereafter on an indemnity basis.

Anthony LoSurdo SC is a barrister, arbitrator and mediator at 12 Wentworth Selborne Chambers, Sydney, Lonsdale Chambers, Melbourne, William Forster Chambers, Darwin and Outer Temple Chambers, London and Dubai.

Dr David J Townsend is a barrister at 3rd Floor Wentworth Chambers, Sydney

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

Children – Court did not reconcile relocation order with expert recommendation that relocation not occur until child was nine In Denham & Newsham [2021] FamCAFC 141 (6 August 2021) the Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) allowed a father’s appeal from a decision of Carew J to permit a mother to relocate with a three year old child from Australia to Belgium from March 2022.

The hearing occurred in February 2020.

The orders included provision for the father to travel to Belgium at least three times a year and that the child return to Australia each year.

The Full Court said (from [28]): “[The single expert psychiatrist] … gave evidence that the child was too young to sustain significant separations from his father … ( … ) [35] … [T]he single expert … did not give evidence that the child would develop the … capacity to sustain significant gaps of contact if there was an additional two years of regular contact … Her evidence was … relocation should not be considered before the child was eight or nine years of age. This evidence … was of signal importance to the central question and had to be considered. … [I]f the … judge determined that … this evidence should not be accepted, it was necessary to explain why not. … This did not occur and the challenges … have been established. ( … ) [51] … [T]he documents issued by the Australian Department of Home Affairs … record that the availability of regular air travel should not be assumed and … that flights have reduced.

[52] Had this evidence been placed before the … judge, it compelled a finding that the mother’s proposals for the child’s time with the father could not be assured and that any prediction for face-to-face contact between the child and the father … would be no more than mere speculation. … This … undermined the findings to the effect that the child and the father would maintain a meaningful relationship if the child moved to Belgium in 2022.”

Property – Creditor of discharged bankrupt has standing to bring section 79A application

Property – Where a valuer has provided a range of values, the court is free to make its own findings as to value

In Valder & Saklani [2021] FamCAFC 142 (6 August 2021) the Full Court (Ryan, Aldridge & Watts JJ) allowed an appeal from a decision of Rees J dismissing an application by a creditor to set aside consent orders.

In Samper [2021] FamCAFC 140 (5 August 2021) the Full Court (AinslieWallace, Watts & Austin JJ) dismissed with costs a husband’s appeal from a decision of Judge Smith where each party owned a business.

The history included proceedings before the High Court, and the husband owing the creditor $594,028.25, plus costs of over $250,000.

The husband’s business operated from rented premises. A single expert valuer opined that the business would have goodwill of $100,000 to $150,000 if the husband obtained a lease with a minimum term of 5 years ([18]) and that the plant and equipment of the business was worth $45,624.

The husband and wife entered into consent orders, pursuant to which the husband transferred his interest in a real property to the wife. The husband then declared himself bankrupt. The creditor obtained leave from the Federal Court of Australia (pursuant to s 58(3)(b) of the Bankruptcy Act) to issue a s 79A application in the Family Court.

The Full Court said (from [19]): “A discharge from bankruptcy operates to release the bankrupt ‘from all debts … provable in the bankruptcy’ as per s 153(1) of the Bankruptcy Act. [20] … [T]he Bankruptcy Act continues to refer to the person who … has a right to prove as a creditor. The Bankruptcy Act goes on to provide such creditors … with various rights … which continue after any discharge of the bankrupt …

[21] … [T]he bankrupt being discharged from … bankruptcy, does not mean that … creditors cease to be ‘creditor’ for all purposes ( … ) [29] … [When] the appellant commenced … proceedings … she was entitled to do so. … As well as being ‘a person affected by an order’ for the purposes of s 79A(1), [she] is also a ‘party’, a ‘creditor’ and a ‘person whose interests would be affected by the making of the instrument or disposition’ for the purposes of s 106B(4AA)(a), (b) and (c) of the Act. ( … ) [47] … If it was found that the consent orders had been entered into with the intention of defeating creditors, we do not see why an appropriate variation … could not see the provision for the payment of those creditors … The court would be astute to make orders to overcome fraud on it ( … )”

The Court found the business was worth a total of $162,093 being: i) the plant and equipment of $45,624; plus ii) $125,000 for goodwill (being the average between the $100,000 and $150,000 range); with a 5 per cent discount to reflect there being no signed lease. The husband appealed.

The Full Court said (from [22]): “It was within the ‘specialised knowledge’ of the … valuer to provide his opinion … by way of a range of the value of the business if a new lease was entered into, or … available ( … ) [23] ( … ) Given the … judge found the opportunity … to obtain a new lease was ‘very likely’, it was open to his Honour to adopt a range of values that assumed that …

[24] … [W]here a valuer has provided a range … the court is free to form its own view as to the proper value ... It is usually inappropriate to … select the mean of two valuations ( … Commonwealth v Milledge [1953] HCA 6; … ). However … both parties submitted that the … judge pick the mid-point, albeit of different ranges. … ” [25] The husband argues that … it was not within the … judge’s expertise to make an allowance for a lease being available or unavailable … when there was no evidence from the landlord as to his intention to continue the lease ( … ) [29] Given the … judge concluded that there was a high probability that there could be a new lease, it was open … to select the discount …”

79

Children – Criticisms of independent children lawyer’s chronology insufficient to justify their removal

Property – Private contact between barrister and judge while case was under way gives rise to apprehended bias

In Lim & Zong [2021] FamCAFC 165 (27 August 2021) Tree J, sitting in the appellate division of the Family Court of Australia, dismissed an appeal from Judge Coates’ dismissal of a father’s application to discharge an independent children’s lawyer (‘ICL’).

In Charisteas [2021] HCA 29 (6 October 2021) the High Court of Australia (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ) considered a recusal application on the ground of apprehended bias.

The father’s complaints related to a chronology document filed by the ICL and its content.

The Court said (from [21]): “A number of authorities have considered the removal of an [ICL], and … the circumstances which may justify such a course. From those, the following points may be discerned: It is not inconsistent with the independent … discharge of an [ICL]’s obligations … to advocate that a particular course of action adverse to, or inconsistent with, the position of a party, ought be taken by … … [T]he [ICL]’s owes the same professional obligations to the Court as does any licenced legal practitioner …

On occasion, the [ICL] will be in an invidious position, but nonetheless they should be no less courageous, no less firm and no less cogent, in advocating for results or findings …

Inevitably the role of the [ICL] involves an exercise of professional judgment which may, on occasion, be precarious and difficult …

It is not appropriate for a litigant to endeavour to micro-manage the [ICL], or critique every step that they take … … [E]ven if an [ICL] does make a mistake, the Court will [not] necessarily accede to an application to have them discharged. …

It is inevitable that the high standards of competence which the Court expects of [ICL] are not always met. …

A court should be slow to discharge an [ICL] on the basis of largely unsubstantiated complaints of one of the parties ( … ) [34] … [E]ven if it be that the [ICL] was mistaken … and acting upon that mistaken belief, misinformed the Court via her … chronology, that is not conduct which would justify her discharge, unless it could also be shown that it was done either deliberately, or recklessly. ( … ) [63] … [A] chronology is simply an aide, and is not evidence. It is simply too long a bow to draw to say that … the [ICL] thereby misconducted herself in a way which justifies her removal. … ”

80 | BRIEF DECEMBER 2021

The High Court said (from [14]): “ … [W]hat is said might have led the trial judge to decide the case other than on its legal and factual merits was identified. It comprised the various communications between the trial judge and the wife’s barrister ‘otherwise than in the presence of or with the previous knowledge and consent of’ [cf Magistrates’ Court at Lilydale [1973] VR 122 at 127] the other parties to the litigation. … The communications should not have taken place. …

[15] A fair minded lay observer … would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions his Honour was required to decide. … (…)

[18] … The apprehension of bias principle is so important to perceptions of independence and impartiality ‘that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined’ (emphasis added) Ebner [2000] HCA 63 (‘Ebner’). …

mother, the husband seeking that the mother also pay his fees.

As to the reversibility of the litigation funding order, Ryan J (with whom AinslieWallace J agreed) said (from [48]): “( … ) Reversibility and the ability to take the payment into account in the final hearing are considerations of fluctuating relevance having regard to the source of power under which the payment is sought. …

[49] It is … significant that in [Zschokke [1996] FamCA 79] … the Full Court said that there must be a question about whether it is possible to make a litigation funding order under s 117(2) even though the order could not be taken into account in a final hearing. For example in parenting proceedings or where no right of action exists under s 79. If their Honours considered that reversibility and the ability to take the amount into account in a final property hearing was an essential element to the exercise of power under s 117(2) it follows that in the examples given such an order could not be made. …

[50] … [T]here will be cases where even though the amount paid may not be able to be … taken into account in the final hearing, the interests of justice may nevertheless justify an order under s 117(2) for interim funding or security for costs. ( … )” The majority dismissed the appeal with costs.

[19] The lack of disclosure in this case is particularly troubling. It is difficult to comprehend how the trial judge could have failed to appreciate the need to disclose the communications …

Children – Parental responsibility – No error in vesting solicitor with parental responsibility for limited purpose of a tort claim against mother

(…)

In Agambar [2021] FedCFamC1A 1 (2 September 2021) the Full Court (Strickland, Austin and Baumann JJ) heard a father’s appeal from a decision that vested a solicitor with parental responsibility for the limited purpose of instructing lawyers to act on behalf of the children in tort claims against their mother.

[21] … The hypothetical observer is not conceived of as a lawyer but a member of the public served by the courts. …

[22] It may be accepted that many judges and lawyers, barristers in particular, may have continuing professional and personal connections. … [T]heir contact may be resumed … by a judge making orders and publishing reasons, thereby bringing the litigation to an end. …”

The appeal was allowed and the matter remitted for rehearing with costs.

Property – Litigation funding order against third party – Irreversibility of order at final hearing not fatal to application In Lao & Zeng [2021] FedCFamC1A 17 (23 September 2021) the Full Court (AinslieWallace, Ryan & Austin JJ) considered a litigation funding order that required the wife’s mother to pay $350,000 towards the husband’s legal fees.

The wife’s legal fees were funded by her

Weeks after separation, the mother lost control of her car and crashed while driving the parties’ three children. One child was killed and the other two were injured.

The children had personal injury claims against the mother.

The mother conceded that she could not act as litigation guardian and sought “Mr B” to be given parental responsibility for the limited purpose of instructing lawyers to act in the tort claims.

Dealing with the father’s complaint as to the interference with the parents’ parental responsibility, the Full Court said (from [38]): “( … ) In VR & RR [2002] FamCA 320 (‘VR & RR’) the Full Court … dismissed the aspect of the appeal which concerned the trespass

Member

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/

Health & Wellness

Next Gen Health & Fitness Clubs, Kings Park provides a unique health experience and sense of wellbeing. It is the ultimate club experience that suits a busy work life and caters for whatever level of fitness you enjoy.

Next Gen Kings Park has curated a special Premium Corporate offer for Law Society members which provides club access and premium benefits, including: - Complimentary towel upon entry - A complimentary 30 minute personal training session when you join - Discounts on special onsite classes Receive two weeks FREE if you join in the month of December. View the offer

Privileges

Personal 20% discount THE ICONIC is Australia and New Zealand’s leading online retailer. Your destination for fashion, sport, beauty, home and kids.

Members of the Law Society receive a 20% discount on selected full priced items on THE ICONIC, with a minimum spend of $110.

Visit the members’ only privileges page (password protected) to view the discount code and conditions.

Shop online: www.theiconic.com.au

*Conditions apply to some offers. For the full list of member privileges please check our website.

upon parental autonomy by the appealed orders … (…)

[39] The Full Court … recognised how the circumstances which are peculiar to a specific case might justify judicial interference with the parental responsibility vested in parents either by law or former court order. … [T]he primary judge’s interference with the allocation of parental responsibility was warranted because both parents desired it to resolve their impasse so the children’s welfare could be clearly advanced. Both parents sought an order interfering with their existing equal shared parental responsibility …

[40] The application of the general rule of which the Full Court spoke in VR & RR (at [29]) does not impugn the primary judge’s decision here … because any parental responsibility with which a parent is seized only exists so long as no contrary court order is made. The Act expressly envisages that parental responsibility can be vested in adults other than the child’s parents (ss 61D(1), 64B(2), 64C, 65C, 65G(1A) and 65P) and it is now well established that there is no presumption in favour of parents over non-parents in the determination of proper orders to resolve parenting disputes … (…)

[43] Since the primary judge appreciated the gravamen of the decision … and nevertheless decided to invest Mr B with the discrete portion of parental

responsibility which was in dispute, the father’s complaint under this ground of appeal was all but exhausted because he was unable to contend the law necessarily precluded his Honour from giving the confined aspect of parental responsibility to Mr B … ( … )”

The Full Court said (from [26]):

The father’s appeal was dismissed with costs.

(…)

Property – Section 90SN – Sale of real properties for less than anticipated – No miscarriage of justice or impracticability In Demeny & Ogden [2021] FedCFamC1A 21 (27 September 2021) Strickland, Ainslie-Wallace and Aldridge JJ considered consent orders that required the sale of four properties to discharge loans, the balance to be divided equally between the parties.

The properties sold for unexpected amounts, which resulted in a property which the husband was to otherwise retain remaining encumbered.

At first instance, Mr Ogden sought a variation to achieve an equal division. Judge Kari varied the original orders to reduce the amount payable to Ms Demeny on the ground that the orders were impracticable and that the orders had not achieved the intended division of property, such that a miscarriage of justice had occurred. Ms Demeny appealed, arguing that any shortfall in repayments was to be borne by Mr Odgen.

“This case is an example of the difficulties that arise when orders require property to be sold and where the orders divide the proceeds not by way of percentage entitlements, but by payment of a fixed sum. …

[48] We are comfortably satisfied that the intention of the parties … was for an equal division of their property. Whilst the parties turned their minds to how that would be achieved if the properties sold for more than what was expected, they did not, in the consent orders at least, address the issue of a shortfall. (…)

[69] … The orders are still capable of being carried out.

[70] It is well established that orders which can be put into effect are not rendered impracticable simply because they produce a different outcome to that which was intended (Rohde and Rohde [1984] FamCA 41…; La Rocca and La Rocca [1991] FamCA 97; Cawthorn v Cawthorn [1998] FamCA 37 and Sanger & Sanger [2011] FamCAFC 210).

[71] It follows that a finding that it was impracticable to carry out the consent orders could not have been made.”

The Full Court allowed the appeal, remitted the enforcement application for rehearing and ordered costs certificates.

81

The Tale of Biased Beak

By The Hon John McKechnie QC Charles Barnett Story served with distinction with the AIF in France in World War 1, rising to the rank of Colonel.

On behalf of Mr Quelch, Mr Mallam quickly appealed to the Supreme Court whose only judge was Mallam’s old sparring partner now Justice Roberts.

In October 1922 he was appointed Government Secretary Northern Territory service. As Government secretary, Story was responsible for every public officer in the NT.

There were several grounds of appeal that were unsuccessful but one ground proved a winner.

Three years later, his services were dispensed with and he ran unsuccessfully for Parliament as a member of the NT Representatives League. When he died in 1941, still in service as Commandant of Bonegilla army base, he was accorded a funeral with full military honours.

Mr Playford was not only a special magistrate but also Director of Lands and Mines. In that latter capacity, his superior officer to whom he was accountable was…. Col Story.

Justice Roberts was satisfied that Mr Playford was not, in fact, biased.

Arthur Quelch claimed to have been educated at Sandhurst and that his father was a King’s Counsel. He served in the Boer War including the siege of Ladysmith; in World War 1; and in the Punjab as an officer in the dragoons.

However, continued the judge, there was a real likelihood that the magistrate would have a leaning towards Col Story because of the connection and perhaps, unconsciously, have a tendency to believe him in a case where everything might turn on credibility.

He travelled through Russia with HG Wells and explored Africa with the adventurer Kaid Sir Harry McLean.

Because of the real likelihood of bias, the Judge determined that the conviction was without jurisdiction and substituted a verdict of acquittal.

Oh, and he was a British spy as well.

If any of this was true, it would have been quite a comedown in 1924 for Mr Quelch to find himself working as a wharfie and winchman in Darwin.

In 1935 Quelch contracted Hansen’s disease and saw out his days in the Channel Islands leprosarium, declining offers to move back to society. He is buried there.

The paths of these two men from completely different backgrounds were destined to cross once in an altercation that reached the High Court.

It happened this way.

Col Story lived in accommodation provided in a house called Aspendale, colloquially known as the Mud Hut or, as Mr Mallam, defending, described it, Dud Hut.

So Mr Quelch was acquitted on what some lay persons might regard as a technicality. Certainly Col Story thought so because he engaged eminent King’s Counsel Sir Edward Mitchell to apply for leave to appeal before the High Court.

It did not go well.

After Sir Edward had been arguing for some time, the acting Chief Justice (Justice Isaacs) said: “we have a very strong opinion about it Sir Edward. We do not of course wish to curtail your argument in any way.”

Sir Edward ran up the white flag.

“Quite right and kind that you should give me an indication. I have no chance.”

At all events, one Sunday in May about 8 am, Col Story set off to walk to church. Opposite the police inspector’s house Mr Quelch accosted Col Story, seizing his left arm and shouting “Are you going to fight me?” Shortly afterwards, it was on.

The argument was probably over much earlier when Justice Stark remarked that in his opinion Justice Roberts was right in every particular in his law.

Surprisingly for Mr Quelch, Col Story won hands down.

Mr Quelch was arrested looking somewhat worse for the experience.

Adapted from Story v Quelch [1924] NTJ 46

Mr Quelch gave a different version in court on his trial for assault but the Special Magistrate, Mr Playford, did not accept his evidence and he was convicted of assault.

82 | BRIEF DECEMBER 2021

It was many years before the High Court introduced time limits and lights. Maybe they didn’t ever need them.

Law Council Update Older Australians must be protected against abuse The Law Council of Australia strongly welcomes the decision by Commonwealth, state and territory Attorneys-General to prioritise enduring power of attorney (EPOA) law reform to better protect older Australians from financial abuse.

“Our population is ageing,” Law Council of Australia President, Dr Jacoba Brasch QC said.

“Older Australians are our parents, our grandparents, our aunts, uncles, sisters, brothers and friends and we need to do more to protect them.

“The Law Council and others, including the Age Discrimination Commissioner, have been calling for these reforms for five years, so we are pleased the nation’s Attorneys-General have recognised the urgent need for a more consistent approach to governing EPOAs.” EPOA arrangements are intended to ensure a person’s interests are protected when they lose capacity to make decisions for themselves. However, in the absence of adequate legal safeguards, financial elder abuse by appointed decision-makers may be facilitated by such arrangements.

“What this means is that those who we expect to care for us when we may no longer be able to fully care for ourselves, take advantage of the trust placed in them.

Tragically, this abuse is often perpetrated by a family member.

“It is estimated that as many as 185,000 older Australians experience some form of abuse or neglect each year and that financial abuse is the most prevalent form.”

Earlier this year, the Law Council of Australia convened a national roundtable to discuss EPOA law reforms with respect to financial matters The roundtable brought together national experts from the legal sector, public advocates, older persons stakeholder groups, law reform and human rights representatives.

Participants agreed that law reform in this area is urgently required to tackle the national problem of elder abuse.

Following the roundtable and further consultation with its Constituent Bodies, the Law Council wrote to the Commonwealth Attorney-General to propose certain model provisions as a starting point for national reform in this area.

These model provisions are directed towards mitigating financial abuse of older Australians arising from EPOAs by ensuring, among other things, that a person making an enduring document makes an informed decision about its content and the identity of the appointed decision-maker, and that the decision-

84 | BRIEF DECEMBER 2021

maker understands and makes a commitment to comply with, their duties and obligations.

The Law Council notes that the AttorneysGenerals also decided to consider alternative models for the National Register of EPOAs. Consistent with the Australian Law Reform Commission’s recommendations, it is the Law Council’s view that the development of nationally consistent laws regarding EPOAs and a national model enduring document are necessary precursors to a national register.

The Law Council, in close consultation with its National Elder Law and Succession Law Committee and constituent bodies, looks forward to assisting work undertaken by the Meeting of Attorneys-General towards achieving a more nationally consistent approach.

Consideration of raising minimum age of criminal responsibility doesn’t go far enough The Law Council of Australia welcomes the decision by Australia’s State AttorneysGeneral to support development of a proposal to increase the minimum age of criminal responsibility (MACR) from 10 to 12 years of age, but believes an opportunity to bring Australia into step with international human rights standards has been missed.

“We, along with other medical and legal experts, have long condemned the fact the minimum age of criminal responsibility in Australia is currently 10 years of age,” Law Council of Australia President, Dr Jacoba Brasch QC said.

“Therefore, we are pleased the State Attorneys-General have agreed to consider lifting the MACR to 12 but continue to call for it to be immediately lifted to 14 years of age. At 12, a child cannot lawfully sign onto Facebook but can be questioned, arrested, detained and imprisoned.”

“The Law Council is concerned by the delays and short-changes inherent in the Attorneys-Generals’ decision, including a preference to raise the age to 12 instead of 14, to consider carveouts, and the failure to take decisive action when the evidence is clear.

Aboriginal and Torres Strait Islander children are affected at a grossly disproportionate rate. The factors driving these children into the criminal justice system include significant rates of mental health disorders, cognitive disabilities, and hearing and language impairments, as well as discrimination, socioeconomic disadvantage and intergenerational trauma, which are the products of colonisation and successive government policies.

The United Nations Committee on the Rights of the Child has called for all states parties to raise their minimum age to at least 14 years of age, taking note of recent scientific findings. Australia is a signatory to the Convention on the Rights of the Child.

In 2020, the Council of Attorneys-General (CAG) Age of Criminal Responsibility Working Group Review considered the issue of raising the minimum age of criminal responsibility. This report has never been released. Before the AttorneysGeneral embark on developing a new proposal, the Law Council calls for the public release and consideration of the original report.

The Law Council’s policy statement on raising the minimum age of criminal responsibility to 14 years of age, published jointly with the Australian Medical Association, is available here. Its submission to the CAG Working Group Review is available here.

Closing the justice gap for the missing middle A position paper released today by the Law Council of Australia seeks to ensure all Australians have effective access to justice.

“A guiding principle of the rule of law is equality before the law,” Law Council of Australia President, Dr Jacoba Brasch QC said. “This means all people must be equally protected by the law. If legal services are financially out of reach of any Australian, then we have failed to uphold this principle.”

“The minimum age of criminal responsibility should be raised to 14, in all jurisdictions, for all offences, without exception.”

“When it comes to access to justice in this country, we have a ‘missing middle’.

This is the group of individuals who do not meet eligibility criteria for publicly funded legal services yet lack the resources to afford a private lawyer’s assistance for all or part of their legal matter.”

A low minimum age of criminal responsibility is not in the public interest and does not make communities safer.

Putting children in prison begins a cycle of criminalisation. Evidence shows children remain in cycles of disadvantage and imprisonment due to a lack of early critical support services including health, disability, rehabilitation and family supports.

The Productivity Commission found in its Access to Justice Arrangements report that: “Even many relatively affluent Australians could not afford a lawyer if they had a serious legal issue. Legal assistance providers also indicated that those refused a grant of legal aid (on the basis of means) cannot necessarily afford to engage a private lawyer — there is a ‘justice gap’.”

Classifieds Missing Will

FOR SALE N.O.R. SURBURBAN LEGAL PRACTICE $160,000

Would any person or firm holding or knowing the existence or whereabouts of a Will or other testamentary document of ANDREW IVAN HERD, born 7 January 1975, late of 48 Sacramento Avenue, Beechboro, Western Australia, who died on 20 June 2019, please contact Joss Legal (Addr) Suite 1.6, Level 1, 9 Bowman St, South Perth, WA 6151 (Tel) (08) 6559 7480 (Eml) lawyers@josslegal.com.au

Solo solicitor selling after 37 years.

Mostly a mobile wills (9,000 plus) based practice and a probate practice (>500 probates granted) but every area of law can go. You will get back purchase price in 3 years if you adopt my charge model e.g. Two Wills $300/couple, 2 EPA’s $200 (couple), 2 EPG’s $200 (couple) or sooner if you increase fees. For further details, please email: icarija@aapt.net.au

“Initiatives to improve access to justice have understandably concentrated on supporting Australians facing the most complicated and compounded forms of social and economic disadvantage.

However, we must also turn our collective efforts to closing the justice gap for all,” Dr Brasch stressed.

“Particular sectors of our community may be more likely to fall within the missing middle,” Dr Brasch said. “These include older persons, people living in rural, regional and remote (RRR) areas, women, single parents, LGBTQI+ people, children and young people, people with a disability, migrants, and people experiencing family violence.”

The Law Council’s Position Paper, Addressing the Legal Needs of the Missing Middle, outlines a range of strategies for meeting the legal needs of the missing middle.

“It will require a multifaceted approach and support from both policymakers and the legal profession to remove the barriers faced by the missing middle.

The strategies unveiled today will provide a foundation for the Law Council to advocate for and achieve positive change.”

Key strategies identified include: increased funding for legal assistance services; lowbono services; legal expenses insurance; self-representation resources; and ombudsmen services.

“A significant proportion of Australians falling within the missing middle are located in RRR areas,” Dr Brasch explained. “The Law Council will continue to encourage policy options for promoting the recruitment, retention, and succession of lawyers in RRR areas, which could include expanded adoption of RRRfocused curriculums in undergraduate.

Time to enshrine a First Nations Voice to Parliament On International Human Rights Day, the Law Council of Australia restates its unwavering support for a First Nations Voice to Parliament enshrined in the Australian Constitution, as called for in the Uluru Statement from the Heart and the recommendations of the Referendum Council.

“Constitutional recognition is vital to protect the rights and aspirations of

Aboriginal and Torres Strait Islander peoples,” Law Council of Australia President, Dr Jacoba Brasch QC said.

Professional Announcements Dwyer Durack Stephanie De La Cuesta Steph joined Dwyer Durack’s Wills, Probates and Estates Department in August 2011 following her recent admission.

Stephanie De La Cuesta Prior to joining Dwyer Durack, Steph gained valuable experience at a small practice which served both city and country clientele.

Steph prides herself in providing friendly and practical assistance in all areas of succession law to all of her clients.

A First Nations Voice, constitutionally enshrined, is a manifestation of the right to self-determination, which, at a minimum, entails the entitlement of peoples to have control over their destiny and to be treated respectfully. This includes peoples being free to pursue their economic, social and cultural development.

Panetta McGrath

The right to self-determination applies to all peoples but was given special resonance in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which represents an authoritative common understanding, at the global level, of how governments should engage with and respect the rights of indigenous peoples.

Australia formally announced its support for the UNDRIP on 3 April 2009.

“We are very pleased to welcome both Emma and Prue to Senior Associate level which recognises their experience and expertise, as well as their commitment to our firm and clients.” Enore Panetta, Managing Director

“The human rights of Aboriginal and Torres Strait Islander peoples continue to be undermined in this country through socioeconomic disadvantage, poorer health and education outcomes, and alarming rates of incarceration and child removals, as well as the destruction of their cultural heritage,” Dr Brasch said.

“The discrimination and intergenerational trauma that Aboriginal and Torres Strait Islander peoples face on a day-to-day basis cannot be alleviated unless and until their rightful place in this country is recognised and the legacy of colonialism confronted. The legal and justice system has played an undeniable part in this history of colonisation, discrimination and trauma.”

A Voice enshrined in the Constitution would provide an effective representative body for First Nations through which this work might begin with Parliament.

“The Law Council recognises the considerable strength, endurance, dignity and leadership of Australia’s First Nations peoples in defending their human rights and putting constructive and achievable ways forward to the nation so that these can be better respected, protected and fulfilled into the future,” Dr Brasch said.

It is with great pleasure we announce the promotion of Emma Jack to the role of Senior associate in the Health Law Team & Prue Campbell to the role of Senior Associate in the Health Law, Aged Care, Seniors Living, and Disability Law team.

Emma Jack has worked in Health Law since 2013. Emma has a solid working knowledge of the relevant disciplinary and civil standards and a deep appreciation of the major impact these types of matters can have on individuals Emma Jack and entities. Emma is committed to providing practical advice and support to guide clients and assist their matters to be dealt with as efficiently and effectively as possible.

Prue Campbell joined the Panetta McGrath team in 2017. Prue acts for aged care and disability support providers across a range of regulatory and compliance issues.

Prue also assists clients in relation to guardianship and Prue Campbell administration matters, privacy, and managing complaints and works with clients to investigate and manage clinical incidents. Prue prides herself on providing clear, practical advice that is grounded in a deep understanding of the aged care and disability sector.

“The Uluru Statement from the Heart was made four years ago. It is time for governments to allow Aboriginal and Torres Strait Islander peoples to take the lead on the issues that affect them.”

85

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 Ethical Guidance 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.

86 | BRIEF DECEMBER 2021