Brief March 2015 by The Law Society of Western Australia

Volume 42 | Number 2 | March 2015

IN AUSTRALIA AND THE UNITED KINGDOM Contrasts and Comparisons

NO TRUST OR CONFIDENCE What about good faith? Principal Registrar Michael Gething

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Contents

GO DIGITAL!

Volume 42 | Number 2 | March 2015

Take me with you.

President’s Report

An interview with Principal Registrar Michael Gething

Matthew Keogh

Clinton Russell

Editorial

Julian Sher

Self-determination for the Noongar People – Potential lessons from Europe?

Quality Practice Standard

Bertus de Villiers

Client Due Diligence

Julie Ots

Book review of Douglas and Jones’s Administrative Law, 7th Edition

Society Organisational Review

Review by Adam Sharpe

Pam Sawyer

Family Law Case Notes

Thomas Hurley Case Notes

Law Council Update

Professional Announcements

Classifieds

New Members

Events Calendar

FEATURE Human Rights Protection in Australia and the United Kingdom: Contrasts and Comparisons

The Hon Robert French AC, Chief Justice of the High Court of Australia

Society Club

ATO Guidelines – Professional service firms’ allocation of profits

Fiona Halsey

Peter Johnston – Eulogy

The Hon Robert French AC, Chief Justice of the High Court of Australia

WA searches for a lawyer with a heart of gold

No Trust or Confidence – What about good faith?

John Blackburn

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. Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: 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 monthly (except January) Advertising enquiries to Eleanor Jackson Manager - Business Development Tel: (08) 9324 8639 Email: ejackson@lawsocietywa.asn.au Communications and Media Officer Tanya Holzmann Communications and Design Officer Brett Syme

EDITOR Julian Sher

PRESIDENT Matthew Keogh

EDITORIAL COMMITTEE Cheyne Beetham, Erin Blight, Ronald Bower, Gregory Boyle, Andrew Cameron, Rebecca Collins, Rebecca Lee, Brigitte Monchouguy, Alain Musikanth, Maureen O'Connell, Tom Porter, Pat Saraceni, Julian Sher, Moira Taylor

SENIOR VICE PRESIDENT Elizabeth Needham

PROOFREADERS Michael Hardy

RRP $15.00 incl GST. Printed by Scott Print

Brief is the official journal of THE LAW SOCIETY OF WESTERN AUSTRALIA Level 4, 160 St Georges Tce Perth WA 6000 Tel: (08) 9324 8600 Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au Web: lawsocietywa.asn.au

VICE PRESIDENT Alain Musikanth TREASURER Hayley Cormann ORDINARY MEMBERS Alison Aldrich, Marie Botsis, Tara Connolly, Hayley Cormann, Brahma Dharmananda SC, Nathan Ebbs, Adam Ebell, Nicholas Ellery, Catherine Fletcher, Greg McIntyre SC, Marshall McKenna, Denis McLeod COUNTRY MEMBER Georgia Pickering JUNIOR MEMBERS Emma Cavanagh, Ray Christensen, Rosie Hill

ISSN 0312 5831 SUBMISSION OF ARTICLES Contributions to Brief are always welcome. For further details, please contact communicationsofficer@lawsocietywa.asn.au

IMMEDIATE PAST PRESIDENT Konrad de Kerloy EXECUTIVE DIRECTOR David Price

report

President's Report Matthew Keogh, President, The Law Society of Western Australia There is not a court in Heaven or Earth … where Horace Rumpole is not ready and willing to appear. On the Day of Judgment I shall probably be up on my hind legs putting a few impertinent questions to the prosecutor. Horace Rumpole I started my monthly reports on the rule of law, the theme for the Law Society’s Law Summer School in February in celebration of the 800th anniversary of Magna Carta. As this document is the gift that keeps on giving in our approach to law and rights through to this day, it is in this vein that I shall continue. The concept of the rule of law involves the application of the law to everyone. As I mentioned in my last report, as lawyers, we have a role not only in promoting and protecting the rule of law but also in having an eye to what those laws are. This means that as a legal profession, which is skilled and trained in advocacy, we should have regard for how laws can impact vulnerable persons and those without a voice in our society and legal systems. In this regard, I am reminded of the famous poem by pastor Martin Niemöller: First they came for the Socialists, and I did not speak out— Because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out— Because I was not a Trade Unionist.

appropriately punished, all life is precious and the legal profession opposes all forms of the death penalty across the globe as a breach of the fundamental right to life. The death penalty breaches the internationally recognised right to not be subjected to cruel, inhumane or degrading punishments. Further, the death penalty: •

is not an effective deterrent of crime;

•

is often discriminatory in its application; and

•

does not provide sufficient regard for the potential fallibility of any criminal justice system.

In my view, it is incumbent on the profession to stand tall in calling on other nations to treat their offenders humanely, as we seek to do so in Australia. OPPOSITION TO MANDATORY SENTENCING Another area of legal policy relevant to the rule of law is that of mandatory sentencing. The Law Society also endorses the Law Council of Australia’s Policy Position on Mandatory Sentencing.2 In particular, the Law Society is concerned that mandatory sentencing results in more pleas of “not guilty”, resulting in more trials and more victims being re-traumatised through giving evidence than is otherwise necessary. Such sentencing obligations also interfere with the judiciary’s exercise of appropriate discretion to determine a just penalty that fits the circumstance of the crime.

In opening the Law Summer School, and following from my email to all members, I reiterated the legal profession’s strong opposition to the death penalty. The Law Council of Australia set out a very detailed Policy Statement on the Death Penalty in 2007,1 which the Law Society along with its counterparts around Australia supports.

With the resumption of State Parliament in February, the State Government commenced the second reading debate of its Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014, to introduce mandatory minimum sentences for the offences of physical or sexual violence committed in the course of an aggravated home burglary. These sentences will apply to offenders from the age of 16 years (i.e. minors and adults) and will revise the repeat offender ‘counting’ rules for the home burglary offence (‘the three strikes legislation’). The impacts of these changes will effectively create a one strike operation in many cases.

In short, while crime must always be

The legal profession uniquely understands

Then they came for the Jews, and I did not speak out— Because I was not a Jew. Then they came for me—and there was no one left to speak for me. OPPOSITION TO THE DEATH PENALTY

02 | Brief March 2015

the need for decisions to be based on the best available evidence. In the case of mandatory sentencing however, evidence from around the globe suggests that mandatory sentencing and threestrike laws are not effective in reducing crime. Evidence in Western Australia also does not in any way suggest that such approaches are successful. Further, there is no cogent evidence that courts handing down sentences for offences of physical or sexual violence committed in the course of an aggravated home burglary have not been in line with community expectations. The Law Society has long been critical of these laws and wrote to the Premier expressing our opposition on behalf of the profession in early 2014 (see letter printed in Brief April 2014), which was responded to by the Attorney-General (see letter printed in Brief October 2014). The Society responded to the AttorneyGeneral early this year, making it clear that the Government’s reasons for seeking introduce mandatory sentencing for these offences do not have an evidential base. STANDING FOR A CAUSE Two sessions at the Law Summer School really stood out in a way that made me, and I’m sure all that heard them, continue to think about what we as a profession can do better to see changes in critical areas of the law, its operation and the justice system. One of these was the final address, by Bryan Stevenson. Mr Stevenson is the founder and Executive Director of the Equal Justice Initiative, an Alabamabased group that has won major legal challenges eliminating excessive and unfair sentencing, exonerating innocent prisoners on death row, confronting abuse of the incarcerated and the mentally ill, and aiding children prosecuted as adults. He took us through his path into law school, working with those on death row and his work today with the Equal Justice Initiative. His inspiring work and speech saw him receive a standing ovation and left listeners with a burning sense that the legal profession can use our privilege and education to achieve more for those less fortunate than ourselves in society and

without an effective voice. There was also a series of speeches regarding the critical issue of the overrepresentation of Aboriginals in our jails from Dennis Eggington, CEO of the Aboriginal Legal Service of Western Australia; Duncan McConnel, President of the Law Council of Australia; and the Hon Chief Justice Wayne Martin AC. All speakers made critical pleas for the issue to be addressed as part of “closing the gap” strategies, the need for broader reconciliation to play its part, and the immediate need to adopt short, medium and long term solutions in the nature of a justice reinvestment strategy to start tackling the issue head on. The Chief Justice’s speech3 also importantly noted that a relatively small number of Aboriginal people are responsible for an astoundingly large amount of crime. Aboriginal people are overrepresented in our courts and prisons predominantly because they are overrepresented amongst those who commit crime. Further, Aboriginal people are just as overrepresented amongst victims as they are amongst offenders. Some key, though frightening, statistics include that: •

the adult Aboriginal imprisonment rate in Western Australia 3,633 per 100,000, compared to a national rate of 2,174 per 100,000 (i.e. 70% higher than the national rate).

•

the non-Aboriginal imprisonment rate in Western Australia is 164 per 100,000, with the Aboriginal imprisonment rate being 22.3 time higher.

•

every night, one out of every 15 adult Aboriginal men will spend the night in prison and Aboriginal people comprise about 40% of the adult prison population of Western Australia while only comprising about 3.5% of the general population.

•

80% of the Aboriginal people in prison have been there before.

Also, the rate of imprisonment of Aboriginal women is rising faster than for Aboriginal men, with Aboriginal women now comprise more than 50% of the female prison population in this State. In Western Australia it costs about $120,000 a year to keep an adult in prison and last year it cost $300,000 a year to keep a child in detention. Civil society has long observed that that it is far better to be spending money on finding cures than merely treating disease. So why not spend the money on prevention rather than punishment? It was acknowledged by all speakers that we as a community need to do better and we need to do it a faster, if we are going to make any impact on the chronic over-

representation of Aboriginal people in the criminal justice system. One proposal was that Western Australia should look to establish a committee as done in New South Wales, charged with reducing Aboriginal incarceration. That committee is made up of representatives of all the agencies, chaired by the Aboriginal Legal Service of New South Wales, and with the significant involvement of Aboriginal people. The Law Society is keen to advance addressing this issue and will be working through a number of its committees, primarily its Aboriginal Lawyers Committee to work to on strategies to address these issues and with government to obtain real progress in improving this disgraceful state of affairs. PROPERLY RESOURCED COURTS AND LEGAL ASSISTANCE Continuing on with the theme of Magna Carta, I also noted in my address the oft quoted clause, “to no one will we sell, to no one deny or delay right or justice.” A similar and related concept is that of “justice delayed is justice denied”. For an effective rule of law to exist, we must have properly resourced and efficient courts together with sufficiently funded and efficient legal aid programmes. Without this, the true existence of the rule of law comes into question. The Law Society will always continue to put the case to government at all levels that it must appropriately resource our courts as well as our legal assistance services, in particular Legal Aid and the Aboriginal Legal Service. This, of course, feeds into the issue of Aboriginal incarceration rates. In this vein, last month I spoke in a number of radio interviews in support of Magistrate Dean Potter in Port Hedland and the lack of support for his case load in the North-West as well as noting the need to properly resource our legal assistance service providers. The Law Society has also engaged with Legal Aid to try and obtain an increase in the rates paid to lawyers under Legal Aid grants of aid to ensure practitioners are able to support continuing to provide the essential service of Legal Aid funded lawyers to those in need. PLANNING FOR YOU IN 2015 In early February, the Council of the Law Society and the senior management team spent a Saturday morning working through key focus areas for the coming year. We have settled on two areas of focus, being: •

wellbeing and mental health; retention; gender bias; and

•

professional practice.

The Law Society is now establishing

teams across our Advocacy, Programmes Corporate Services and Law Mutual teams to ensure that we can deliver on meeting the needs of the profession in these key areas. Wellbeing and mental health, retention and gender bias As I mentioned in my last report, these areas are so intertwined that to try and address any one of them without addressing the others is a fool’s errand. This is a complex area, requiring strategies, programmes, information provision, education and services that tackle both the causes and effects of these issues, as well as general awareness and understanding. In March, the Executive Director and I will be attending a Law Council of Australia workshop with our counterparts from around the country to look at what the profession is doing nationally to address gender bias and retention of women in the profession. These discussions will assist the Society here with how we can do better and achieve more in these areas. No doubt our counterparts can also learn from what we are already doing. Professional practice In this area we will be looking at how the Society can better help you do what you do best as a legal practitioner. This will include looking at ways we can assist with best practice guides, high quality tactical skill and legal management training and other services. The Law Society wants to make sure that we can support you in being able to spend more time focusing on client needs (and your own needs) and less time managing the business and minimising any risks of complaints or claims. Watch this space, as well as our emails and website for more information in these area as we further develop our offerings in these areas. In conclusion, I note that Einstein defined insanity as “doing the same thing over and over again and expecting different results”. In the “law’n’order” debate, our treatment of Aboriginal Australians, and dealing with the mental health of members of our profession, it is now clear that we must change our approach as to not do so is clearly insane. NOTES

The Law Council of Australia’s Policy Statement on the Death Penalty September 2007 can be found here: http://www.lawcouncil.asn.au/lawcouncil/ images/LCA-PDF/a-z-docs/LCA_death_penalty.pdf

The Law Council of Australia’s Policy Position: Mandatory Sentencing June 2014 can be found here: http://www.lawcouncil.asn.au/lawcouncil/ images/LCA-PDF/Policy_Position_-_Mandatory_ Sentencing.pdf

Martin AC, Hon Wayne Martin, Chief Justice of Western Australia, “Indigenous Incarceration Rates - Strategies For Much Needed Reform” 20 February 2015 http://www.supremecourt.wa.gov.au/_files/ Speeches_Indigenous_Incarceration_Rates.pdf

editorial

Days of Our Lives National profession and CPD points Julian Sher, Barrister, Francis Burt Chambers, Editor, Brief Journal The weeks and months have passed quickly. Summer holidays are but a distant memory. Some say that the speed of passing time is directly proportionate to the amount of things you have to do. This year it has to do with my editorship of Brief. Having spent some of January and most of February being politely interrogated by colleagues freshly returned from their holidays, in tones of faintly veiled incredulity, about my reasons for taking on Brief, reality has at last set in. The immediate challenge is trying to find something worthwhile to say in my second editorial of the year. Fortunately, the Society has kicked off the year with a flurry of activity making my task a lot easier. I experienced considerable pleasure when the Society’s CPD Education Programme for February-March 2015 landed on my desk. Full marks must go to those responsible for compiling what is undoubtedly a useful, practical and varied list of topics. There is something for everyone. The emphasis on practical ethics, professional conduct and values generally, as well as substantive legal matters is to be commended. If you haven’t already done so, I encourage you to browse through the programme, make your selection and sign up. Practitioners of all levels of seniority and experience will be rewarded by a refresher on any of these topics. Those who go to the tremendous effort of compiling and organising the education programme and those responsible for the Society’s annual Law Summer School deserve our thanks. These activities are a credit to them all, as is the enthusiasm of the participants. This made me think about the effectiveness of the CPD point system generally. Under our system the value placed on each CPD point earned is the same, regardless of how that point is actually earned. There are, however, varying levels of effort involved in accumulating points. Achieving the publication of learned articles and the delivery of presentations and papers is 04 | Brief March 2015

qualitatively hugely different from mere passive attendance at accredited events. More thought needs to be given to the ultimate purpose of having a CPD point system to avoid the triumph of form over substance. While on the topic of the profession, I was recently reminded of the move towards a truly national legal profession in Australia. It came as a surprise (to me at least) to learn that there is already a national Legal Services Council located in Sydney (legalservicescouncil.org.au). Former Federal Court Michael Black QC is the Chair and Dale Boucher, a senior public servant is the CEO and Commissioner for Uniform Legal Services Regulation. The members of the Council are senior representatives of the profession in New South Wales and Victoria. The Law Society of WA supports a move towards a national profession, with some qualifications to cater for domestic conditions. All of this is a preamble to my saying that my personal experience of practising in a highly regulated centralised environment controlled from a remote location, with little regard for local conditions, is a cautionary tale for all of us who struggle with bureaucracy. Large firms are well resourced with compliance staff to deal with this overlay – albeit at considerable cost. It would be more difficult for the large majority with far fewer resources. I would be concerned at any imposition of a heavy layer of bureaucracy disproportionate to the needs of practitioners in WA. Depending what is envisaged, it could become a case of the tail wagging the dog. On the whole, the current system serves us well – despite the rather archaic structure of the Legal Practice Board. This month’s issue contains something for everyone, from substantive law to a consultant’s report on a recent review of the performance of the Society relative to similar organisations in the other states. To mark the sad passing of the late Peter Johnston, we feature the transcript of the moving eulogy delivered by His

Honour the Chief Justice of Australia. His Honour’s words will resonate with everyone who had the great privilege of knowing Peter. Much current debate in Australia revolves around national security and the protection of human rights. Readers will recall the debate several years ago on whether the country needs a Bill of Rights. In this environment it is timely to feature a speech delivered in 2012 by His Honour the Chief Justice of Australia, on the protection of human rights in Australia and the United Kingdom. His Honour’s speech reviews how constitutional, statute and common law address the protection of these rights under our system. This feature will appear in two parts, spread over the March and April issues of Brief. The recent decision of the High Court in Commonwealth v Barker rejected the proposition that employers owe employees a contractual duty of trust and confidence. In his featured article, John Blackburn, asks the question “if not trust and confidence, what about good faith?” Almost 50 years after the recognition of the citizenship of the Noongar people, Brief is grateful for an article by Bertus de Villiers on their fight for self-determination in Western Australia. The possibility exists that the settlement of all land title claims may be close, if the Noongar Recognition Bill is passed by the State Parliament. Bertus examines lessons that may be learnt from experiences in Europe by reference to the notion of cultural recognition. Lastly but not least, there is the review of the 7th edition Douglas & Jones’s Administrative Law. Finally, I express my thanks to all members of the Brief Editorial Committee for their continuing contributions. They make the editor’s life a lot more bearable than it would otherwise be. Sadly our wonderful Brief committee secretary, Tanya Holzmann, will be leaving us this month. Without her considerable input we simply could not have managed. I wish her every success in her future career.

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This reputable top tier legal firm offers high quality matters, industry leading partners, and continued growth. An opportunity now exists for a Corporate Lawyer to take a lead in the transactions and advisory practice. This role will see you work across corporate transactions including M&A, capital markets, private equity, competition and consumer law, corporate governance and regulatory matters. You’ll work with existing corporate clients and have the business development skills to build and develop this fee base. With significant growth plans in place, this pivotal role requires a Lawyer with a solid background gained in a reputable legal firm. You’ll have the ability to develop strong client relationships and leverage off the existing client base and your own network. contact cameron Pearce at cameron.pearce@hays.com.au or 08 9254 4598.

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This highly successful corporate/commercial firm has recently undergone a period of rapid expansion. With a boutique size but dynamic top tier feel this firm has a unique and appealing culture. Due to a restructure in the company the need for a Legal Secretary in the litigation team has arisen.

This well established top tier firm enjoys a reputation as a market leader, priding itself on commitment and dedication to both staff and clients. An excellent opportunity has arisen for a Legal Secretary to join the diverse and welcoming environment this firm promotes.

You’ll support three fee earners including a Senior Associate. Duties you’ll be performing include dictation typing, amending and preparing legal documents, dealing with correspondence and some client liaison, to name but a few. You’ll also be responsible for any ad hoc administrative duties to ensure the smooth running of the team. Being naturally organised and hard working you’ll excel in this role. Your previous legal secretarial experience in corporate or commercial law will be highly regarded, your team working ability and can do attitude will also be vital to your success. Strong technical abilities and a typing speed of no less than 65wpm will be essential to this position. Your flexibility and dedication will be rewarded with a competitive salary package, a supportive and warm office culture and company benefits. contact Lennie waller at lennie.waller@hays.com.au or 08 9322 5383.

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Quality Practice Standard

Following the Law Society of Western Australia’s launch of the Quality Practice Standard on 19 June 1996, 230 legal practices have registered for certification to the Standard. The Law Society of Western Australia’s Quality Practice Standard (QPS) reflects excellence in legal practice management. It is a means by which firms and practices can enhance competitiveness, deepen client relationships, mitigate risk and ensure that accountability in service excellence is upheld. The Standard also serves to enhance the status of the profession and provides legal practices with an opportunity to qualify for a 7% discount for the first year on professional indemnity insurance premiums and 5% discount thereafter.

place (which is often a requirement in the tendering process). The first steps to becoming an Approved Quality Practice Standard firm, is by registering your firm for Quality Practice Standard (QPS) and then attend QPS workshops. QPS workshops are for firms that would like to pursue QPS status. The next series of QPS workshops to be held at the Society are scheduled for: •

Thursday, 7 May 2015 – QPS Accreditation Workshop 1 – Prerequisite seminar to gain accreditation; and

suitable to your firm and QPS trainer. The following CPD points apply for participants who attend in-house QPS training: •

CPD Points: 2 ½ points Competency: 1 Legal Skills and Practice

•

CPD Points: 2 points Competency: 2 Values

Quality Practice Standard Accreditation Workshop 2

accreditatio

CPD Sem

CPD Seminar Series Quality Practice Standard

•

Thursday, 21 May 2015 – QPS Accreditation Workshop 2 – An elective unit to gain QPS accreditation.

THURSDAY, 21 MAY 2015 - 3.45PM - 6.00PM LEVEL 5, 160 ST GEORGES TERRACE, PERTH The Law Society of Western Australia’s Quality Practice Standard (QPS) reflects excellence in legal practice management. It is a means by which firms and practices can enhance competitiveness, deepen client relationships, mitigate risk and ensure that accountability in service excellence is upheld. Completed the QPS Accreditation Workshop 1? This elective workshop is for legal practices on the pathway towards QPS accreditation. It builds on the key learning gained in the first workshop, but offers you and your team further support and coaching. KEY REASONS TO ATTEND: •

Learn how to introduce and document new procedures, systems and processes into the practice

•

Assess and review your progress to date

•

Ensure that your practice is audit ready

•

Understand important changes to the Standard that applied from 2013

COST: The first two participants can attend for $220 per person. The third and subsequent participants can attend for $121 per person.

The WA State Supply Commission (now part of the WA Department of Finance) is responsible for much of the tendering for outsourcing of Government Services in WA. It recognises the Society’s Quality Practice Standard as a quality assurance scheme. This means that accredited law firms can, in submitting their tenders to the Commission, expect full credit for having a quality assurance regime in

06 | Brief March 2015

Both workshops run 4.00pm – 6.00pm, with registrations open at 3.45pm. Completion of each workshop will earn you 2 CPD points. Please save the dates and registration forms are available on the Society’s website. Quality Practice Standard Training can also be delivered in-house at a time

Quality Pra ctice Sta nda Accreditat ion Worksh rd Prerequisite op 1 workshop to gain

An elective unit to gain QPS accreditation

In-house QPS training can also be arranged in your office at a time to suit your firm. The QPS training is beneficial for the whole firm to attend and group booking discount applies for one-to-one training. Contact QPS Coordinator Francesca Giglia for more information on 9324 8606 or email qps@lawsocietywa.asn.au

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rd that applied from 2013 $220 per person for the first two $121 per delegates person for subsequent delegates Would you prefer to do the training applies when in-house? we conduc a time that A group bookin t the worksh suits you. op on your g discount premises for larger Contact QPS teams, at Coordinator 9324 8606 Francesca or qps@la wsocietywa.a Giglia for more informa sn.au tion on

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Principal Consultant, Pace Enterpr ises Peter Liron has diploma s in Training Assessment and Systems, Quality Manage for Busines s Exellen ment ce and Occupa Health and tional Safety. He is a RAB/QS registered A Quality and OSH Principa Auditor, a RAB/QSA l registered Food Safety Associate Facilitator and a register Worksafe Plan Assess ed or.

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REGISTE

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Places are limited – Book early to avoid disapp ointme

To register your firm for QPS and for more information, visit the Society’s website www.lawsocietywa.asn.au/ quality-practice-standard or contact Francesca Giglia on (08) 9324 8606 or via email qps@lawsocietywa.asn.au.

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1300 886 243 leap.com.au/cloud

Client Due Diligence Julie Ots Principal, Ots & Associates

Your firm’s risk exposure is dependent on your size, type of clients, and the practice areas it engages in. By developing and documenting an effective risk based approach to client engagement, your firm will reduce its exposure to being unwittingly used to launder money, while minimising compliance costs and burden on clients. Risk assessment is an ongoing process both for the firm generally and for each client, business relationship and retainer. Customer due diligence measures are to be applied to those clients deemed by your firm to be a risk. The records maintained of the customer due diligence need to include the information obtained on client’s identity and the method of verification. Consideration needs to be given to conducting customer due diligence on all new clients for whom financial or real estate transactions are to be conducted before you establish a business relationship or carry out an occasional transaction.

•

the full business name (if any) under which the customer carries on his or her business;

•

the full address of the customer’s principal place of business (if any) or the customer’s residential address; and

•

B) Companies

•

the company exists; and

•

in respect of certain companies, the name and address of any beneficial owner of the company has been provided.

For new clients that are companies the firm must, as a minimum, collect the following information:

the full address of the company’s registered office;

•

the full address of the company’s principal place of business, if any;

•

the ACN issued to the company;

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whether the company is registered by ASIC as a proprietary or public company; and

For new clients that are individuals the firm must, as a minimum, collect the following information:

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if the company is registered as a proprietary company, the name of each director of the company;

•

the customer’s full name;

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the customer’s date of birth; and

In the case of a registered foreign company:

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the customer’s residential address.

A) Individuals

08 | Brief March 2015

•

the country in which the company was formed, incorporated or registered;

•

whether the company is registered by the relevant foreign registration body and if so whether it is registered as a private or public company or some other type of company; and

•

if the company is registered as a private company by the relevant foreign registration body ‑ the name of each director of the company.

You will need to ensure that your firm has: •

an effective and documented AML/ CTF programme in place that will identify, minimise and manage money laundering and terrorism financing (ML/TF) risks

•

developed a process that allows you to monitor and review your AML/ CTF programme

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appointed an AML/CTF Compliance Officer

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trained your staff and agents (if any) on an on-going basis so they understand their responsibilities

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procedures in place to collect and verify customer identification as required

•

procedures in place to make and store records for customer identification

•

In the case of a domestic company:

•

For individuals representing their own business the additional information needs to be collected:

the ARBN issued to the company;

The firm needs to be reasonably satisfied, where a customer is a company, that:

the full name of the company as registered by ASIC;

The Anti‑Money Laundering and Counter‑Terrorism Financing Rules set different identification and verification requirements for different types of customers:

•

any ABN issued to the customer.

•

Verifying that customers are who they say they are is vital to any customer identification procedure.

principal place of business in Australia (if any) or the full name and address of the company’s local agent in Australia, if any;

•

the full name of the company as registered by ASIC;

•

the full address of the company’s registered office in Australia;

•

the full address of the company’s

The below client due diligence flow-chart provides an overview of the required process. Anti‑Money Laundering and Counter‑Terrorism Financing Rules Instrument 2007 (No. 1) Anti-money laundering practice note. UK Law Society. www.lawsociety.org.uk/productsandservices/practicenotes/aml/450. article (30 July 2008).

Receive new instructions.

Are new instructions from an existing client?

Yes

Verify that there is no change in client's details.

Are the instructions considered to be low risk?

No additional client verification is required.

Yes

No Collect sufficient information to clearly identify client.

INDIVIDUALS Collect the following information:

COMPANIES

•

the customer's full name;

•

the customer's date of birth; and

The firm needs to be reasonably satisfied, where a customer is a company, that:

•

the customer's residential address.

•

the company exists;

•

in respect of certain companies, the name and address of any beneficial owner of the company has been provided;

•

the full name of the company as registed by ASIC;

•

the full address of the company's registered office;

•

the full address of the company's principal place of business, if any; and

•

the ACN issued to the company.

INDIVIDUALS For individuals representing their own business the additional information needs to be collected: •

the full business name (if any) under which the customer carries on his or her business;

•

the full address of the customer's principal place of business (if any) or the customer's residential address; and

•

any ABN issued to the customer.

Verify information collected to confirm client identity. Law firm could contact client through the information channels ascertained from the public record to confirm (a) existence and (b) intention to instruct in the manner proposed.

INDIVIDUALS View original or certified copy of a current primary photographic identification document.

COMPANIES Retain copy of ASIC search.

Maintain records of client identity verification.

Re verify client if an event, circumstance or period specified in the AML/CTF Rules occurs or expires. 09

Society Organisational Review Summary Report on the Strategic Directions 2014–2018

In accordance with the Strategic Directions 2014 – 2018, an organisational review was undertaken in the second half of 2014. The review was intended to identify potential new areas of activity that should be offered by the Society, and to also detect activities that are no longer valued by members and should cease to be offered. The analogy of having too many ‘spinning plates’ was made to convey the concern that the Society may be doing too much, or focusing on the wrong things.

10 | Brief March 2015

The process involved benchmarking other membership-based organisations, both within and external to the legal sector. An internal review was also undertaken to identify key areas for improvement or change. Interviews were completed with all staff and representatives of Council, as well as reviewing a number of key internal documents such as the Strategic Directions paper, Member Perceptions survey and individual business plans. The benchmarking phase included other law societies (Queensland Law Society and Law Institute of Victoria), other professional membership organisations (CPA and AMA), and a world leading advocacy organisation (AARP). It was concluded that the range of offerings delivered by the Society is very similar to that of other organisations which, given its substantially smaller membership size, is something of which the Society should be proud. Limited innovation exists within those organisations benchmarked, with the

current focus on utilisation of technology to facilitate better communication and engagement with members. Overall, key points to note were: •

The Society compared very well to its counterparts in other states, as well as internationally.

•

The services offered were on a par, which is a significant finding given the Society is substantially smaller than the other organisations reviewed as part of this process.

•

Other organisations have a slightly wider spread of income generating activities primarily through commercial partnerships and accreditation. Accreditation is not considered a strong opportunity for the Society as, on average, these programmes fail to deliver positive returns. The impact of a smaller membership base must also be taken into consideration when looking at the potential of new initiatives. Clearly the benefit

of issuing Practising Certificates on behalf of local regulators is significant in gaining a much higher proportion of the profession as members by our interstate counterparts, and is an opportunity the Society should continue to keep on its radar. •

Others are doing better in their use of online technology and communication to members – they are better at ‘selling’ their strengths and focusing on their successes, impact and influence.

The identified themes of communication and online technology were echoed when speaking with both staff and council members. Key priorities included; enhanced communication in advising members what we do, improving the website, better articulating the Society’s offer for individual segments of membership, improved utilisation of internal systems and ensuring teams work collaboratively were all identified as priorities.

"... the Society is actually performing very well, the value proposition offered is largely appropriate, and that the issue is not about needing to change the offering, but rather that the Society needs to develop at communicating its offering to members."

At all stages of the review, findings were reported and discussed with the Executive, the Senior Management Group as well as staff. On the basis of the work undertaken, the key conclusions reached were that overall, the Society is actually performing very well, the value proposition offered is largely appropriate, and that the issue is not about needing to change the offering, but rather that the Society needs to develop at communicating its offering to members. The range of services offered are comparable to those offered by other societies, all of which are considerably larger than the Law Society of Western Australia. The areas of focus in respect to committees are appropriate for its size and the profession, and the satisfaction levels of members are extremely high (and continually improving over the last five years). No major deficiencies were identified in regards to the range of offerings, and equally there does not appear to be any broad categories which the Society could cease to offer. The most succinct answer out of this review is that the Society is not ‘over servicing’ their members, and as such most services need to remain. Equally, no areas of deficiency were immediately apparent. However, changes do need to be made. The vision is to have an informed and engaged membership, which requires the Society to improve its communication, make better use of technology and, most importantly, focus efforts on delivering meaningful content to the membership in a way which is convenient to them. Previous surveys of members tell us that the cornerstone of the Society being considered the “essential membership” 12 | Brief March 2015

is keeping members up-to-date on relevant issues and legislative changes, CPD and understanding members’ needs. In order to effectively deliver on the “essential membership” proposition, a series of recommendations focused on six key areas: 1. Strategic campaigns 2. Effective communication 3. Activity with purpose 4. Excellent CPD 5. Integrated systems 6. Structure and governance Remembering that ‘Strong Advocacy’ is one of the key pillars of the Strategic Direction of the Society, strategic campaigns are designed to identify those key issues which are likely to have the greatest impact or relevance to the membership. Using the expertise of Society staff, council and the wider membership, the implementation of these campaigns will see much better communication to, and engagement with, the membership on the key issues which are most likely to affect the profession. A significant amount of advocacy work is undertaken behind the scenes, and this material should be better promoted and made more widely available to the membership. Within the pillar of ‘High Value Services’, the emphasis is on ensuring every activity and programme has a clear purpose and targeted outcome, leading to improved membership retention and growth. This should lead to events and functions which deliver meaningful benefit to the membership. Equally important is delivering excellent CPD, which relies on securing high quality speakers, leveraging the high

level thinking that comes from the committees, and making the knowledge more accessible to the membership. A commitment to ‘Organisational Excellence’ will see an integration of systems to enable efficient, targeted delivery of our service. In reality this means fully utilising the website and internal systems. Changes to the structure were also recommended allowing for greater alignment among services and improved resourcing for marketing and communications and system utilisation. Sitting across all three pillars is effective communication, which is essential if the Society is to best position itself for growth in the future. This means keeping members informed in a way which helps them do their job, and is relevant to them. It means leveraging knowledge and insight from across the entire organisation. It means leveraging online and digital communication, which is tailored to segments and facilitating engagement. As members, it is the intention that the information and insight you receive from the Society will continue to grow in relevancy and impact, and that the Society remains your essential membership. All recommendations were endorsed by the council at the December 2014 meeting, with implementation to commence in January 2015. ____________________________________ The review was completed by O’Brien Consulting.

broader horizons Latest Opportunities - March 2015 With activity in the Perth legal market on the rise, now is the time to secure your dream job, or quality legal talent to support your business! We currently have a number of exceptional job opportunities and high quality legal candidates registered. Contact us today for a confidential discussion about your career options, or for assistance with your strategic legal staffing requirements. Please find below a selection of our latest job opportunities for March.

Commercial Lawyer

Environmental & Planning Lawyer

2-4 years

3 YEARS +

This respected boutique firm has established an excellent reputation in its chosen area of specialisation. A talented junior Commercial Lawyer is required to join their successful and expanding practice.

This national brand leader boasts a leading Environment & Planning practice, with a strong presence in the local Perth market. A growth opportunity exists for a junior to mid level E&P specialist to support this thriving team.

Acting for small to medium sized businesses, you will advise on a range of general commercial, contract, intellectual property, franchising, business and consumer law issues. Your role will involve regular client contact and will primarily support a busy partner with the preparation of legal advices, drafting, review and negotiation of a range of commercial agreements.

As a key point of contact for the Perth team, your role will focus on due diligence work, assistance with commercial negotiations and comprehensive advice to resources companies, developers and government clients on planning, land access, heritage, environmental approvals and regulatory issues affecting major resources projects and commercial developments in Western Australia.

A solid background in commercial and business law, coupled with strong drafting skills, a willingness to learn, ability to manage conflicting deadlines and to turn around work efficiently, will be essential to your success in the role. Top firm, that prides itself on investing in the training and development of its staff.

Solid experience and quality training with a well regarded environment & planning team and outstanding academics will ensure your success. You will benefit from close mentoring from a talented partner and senior lawyers and will be given every opportunity to develop your technical skills and progress within a smaller team structure.

Commercial Litigator

Corporate Lawyer

3-5 years

This independent local practice, led by a forward thinking and down to earth partnership, requires a junior to mid level litigator to assist on complex litigation matters, as well as run their own smaller files.

With a leading reputation in the local and wider Australian market, this premier Corporate practice seeks to appoint an exceptional mid level lawyer to support the continued growth of this thriving team.

Acting for a range of medium to large corporate clients, as well as high net worth individuals, your work will encompass all aspects of commercial litigation, with a strong focus on major corporate, contractual or project based disputes, and insolvency matters.

With a highly desirable client base, including a number of listed companies in the energy & resources sector, you will gain top transactional experience working on leading M&A deals, capital raisings, private equity, general corporate advisory and compliance, project and joint venture work. You will have opportunity to foster key client relationships and over time, position yourself into a more senior position within the firm.

As part of an inclusive and team orientated firm, you will regularly collaborate with partners, clients, counsel and other internal staff and will have direct access to training and mentoring from expert partners. This firm will guarantee you access to a consistent flow of premium legal work that will keep you constantly challenged.

Previous experience with a top tier or leading boutique corporate practice, outstanding academics and a strong working knowledge of the ASX Listings Rules and Corporations Act will be required. Make your mark upon the corporate landscape and progress your career.

Stacey Back Director

p 08 9380 9914 m 0406 647 577 e stacey@profilelegal.com.au

Profile Legal Recruitment

www.profilelegal.com.au

HUMAN RIGHTS PROTECTION IN AUSTRALIA AND THE UNITED KINGDOM CONTRASTS AND COMPARISONS Part One The Hon Robert French AC, Chief Justice of the High Court of Australia Anglo-Australasian Lawyers Society and Constitutional and Administrative Law Bar Association 5 July 2012, London

Australia is exceptional among Western democracies in not having a Bill of Rights in its Constitution, nor a national statutory Charter of Rights. A recent academic article in the European Human Rights Law Review1 used as a subheading the wellknown Australian saying, ‘she’ll be right mate’, intending to convey what the authors described as ‘Australia’s lukewarm attitude towards human-rights specific legislation.’2 There have been frequent criticisms of Australia’s perceived exceptionalism in this respect and laments about its relegation to a backwater, while the great broad river of international human rights jurisprudence sweeps by. It is not my purpose to answer those criticisms, but rather to say something about how the Australian Constitution, statutes and the common law are applied

14 | Brief March 2015

to the protection of rights. In so doing, I will make some comparisons with the United Kingdom. The topic is timely. On 30 September 2009, the Australian National Human Rights Consultation Committee delivered a report to the Attorney-General of the commonwealth following an extensive national consultation process addressing three questions: •

which human rights (including corresponding responsibilities) should be protected and promoted?

•

are those human rights currently sufficiently protected and promoted?

•

how could Australia better protect and promote human rights?

feature

Conscious, no doubt, of the content of the debate that took place during the consultation process, the committee first recommended that ‘ ... education be the highest priority for improving and promoting human rights in Australia’. It also proposed an audit of all federal legislation for compliance with Australia’s international human rights obligations.3 The committee sought an amendment to the Administrative Decisions (Judicial Review) Act 1975 (Cth) to make Australia’s international human rights obligations a relevant consideration in government decisionmaking.4 Absent a Federal Human Rights Act, the committee proposed that the Acts Interpretation Act 1901 (Cth) be amended to require that, as far as it is possible to do so consistently with the legislation’s purpose, all federal legislation be interpreted consistently with a definitive list of Australia’s human rights obligations.5 The committee also recommended that Australia adopt a Commonwealth Human Rights Act6 to be based on the ‘dialogue’ model7 reflected in the Human Rights Act 1998 (UK) and in human rights legislation in the Australian Capital Territory and the State of Victoria. The government responded on 21 April 2010 by announcing what it called ‘Australia’s Human Rights Framework’. It did not include a Human Rights Act or Charter. The Attorney-General said: The government believes that the enhancement of human rights should be done in a way that as far as possible unites, rather than divides, our community. Key features of the national human rights framework were enhanced government support for human rights

16 | Brief March 2015

education across the community, including in primary and secondary schools, the development of a new national action plan on human rights in conjunction with the states and territories and non-government organisations, the introduction of legislation to establish a Parliamentary Joint Committee on human rights to provide greater scrutiny of legislation and the review of legislation policies and practices for compliance with the seven core United Nations human rights treaties to which Australia is a party. The Commonwealth Parliament has now enacted the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). The Act established a Parliamentary Joint Committee on Human Rights8 with the following functions: (a) to examine Bills for Acts and legislative instruments, that come before either House of the Parliament for compatibility with human rights, and to report to both Houses of the parliament on that issue;9 (b) to examine Acts for compatibility with human rights, and to report to both Houses of the Parliament on that issue;10 (c) to inquire into any matter relating to human rights which is referred to it by the Attorney-General and to report to both Houses of the Parliament on that matter.11 That Act also requires that any Bill introduced to the Parliament be accompanied by a Statement of Compatibility, which must include ‘an assessment of whether the Bill is compatible with human rights’.12 The Act defines human rights as the rights

and freedoms recognised or declared by the seven core United Nations human rights treaties as they apply to Australia. They are by reference to acronyms: the ICCPR, the ICESOC, CERD, CEDW, CAT, the CORC and the CORPD. As Professor Kinley and Christine Ernst observe in their recent paper: The significance of this definition cannot be overstated. Its practical effect is to require lawmakers to assess human rights compatibility by reference not to a closed list of rights, but to the well over 100 rights and freedoms contained in the seven treaties listed.13 On 22 September 2011, the AttorneyGeneral and the Minister for Finance and Deregulation launched a public discussion paper which foreshadowed the consolidation of commonwealth anti-discrimination laws into a single Act covering discrimination on the grounds of race, sex, marital status, pregnancy, sexual orientation, age and disability. It is important to observe that Australia already has in place a number of statutes at commonwealth and state level prohibiting discrimination on grounds of race, sex, age and disability; the commonwealth statutes by operation of s109 of the Constitution would render inoperative any inconsistent state law. These statutes include: •

the Racial Discrimination Act 1975 (Cth);

•

the Sex Discrimination Act 1984 (Cth).

Most states and territories protect against discrimination on the basis of gender identity. Victoria14 and the Australian Capital Territory15 have statutory Human Rights Charters

feature which apply interpretive rules to their statutes and provide for declarations of incompatibility. An important point of difference between the United Kingdom and Australia relevant to this area generally is the existence in Australia of a written Constitution. That Constitution does not contain a Bill of Rights, but it is an important source of rights protection. Against that background, it is desirable to look to the larger context provided by the Constitution and the common law in connection with human rights protection in Australia. That larger context cannot be disentangled from Australia’s history and its evolution as a nation. AUSTRALIA TODAY Australia is home to many histories. That of its Aboriginal and Torres Strait Islander people stretches back 40 millennia. The formal history of British colonisation commenced on 26 January 1788 when Arthur Phillip annexed the eastern half of Australia in the name of the British Crown. It was marked by successive annexations of the rest of the continent by the United Kingdom, the evolution of the colonies into self-governing polities, and their union in a Federal Commonwealth in 1901. Beginning about halfway through the twentieth century there followed a wave of new histories, those of the many people of non-British origin who migrated to Australia from all parts of the world. They brought with them rich and diverse cultural heritages. On the latest census, more than one quarter of the people living in Australia today were born in other countries. More than 43 per cent of Australians were either born overseas or have at least one parent who was born overseas. In recent years migrants to Australia have come from over 180 different countries.16 Taken together, these histories define the nation. It is to the Constitutional history relevant to the protection of the people’s rights and freedoms, that I now turn. HUMAN RIGHTS IN THE DRAFTING OF THE AUSTRALIAN CONSTITUTION A Constitution Bill was drafted by a convention of delegates from the Australian colonies in 1890 and 1891. Initially it failed to gain popular acceptance. Further conventions were held in 1897 and 1898, and a revised Constitution Bill was agreed. It was substantially based upon the 1891 draft. It was submitted to the electors of each of the colonies. Ultimately, five of the six colonies held referenda which approved the Bill. Western Australia’s referendum was delayed until 31 July 1900 when its electors too

approved the proposed Constitution. In the meantime, the Constitution Bill had been submitted to the Imperial Parliament together with addresses from the Colonial Legislatures. The Bill was enacted and received the Royal Assent on 9 July 1900. The Commonwealth of Australia Constitution Act, an Imperial statute, established the Commonwealth of Australia by proclamation as from 1 January 1901.

Constitution the law-making power of the commonwealth is vested in the Commonwealth Parliament which consists of ‘the Queen, a Senate, and a House of Representatives’. There are 39 heads of power in that section. The executive power of the commonwealth is found in Chapter II of the Constitution and principally in s61. That chapter locates the effective executive power in the Ministers of the Crown.

A leading figure at the Constitutional Conventions was Andrew Inglis Clark. He was Attorney-General for Tasmania.

Chapter III of the Constitution deals with the federal judicature. By s71, the judicial power of the commonwealth is vested in the High Court of Australia, such other federal courts as are created by the Parliament and such other courts (ie courts of the states) as are invested with federal jurisdiction. Each colony, which became a state in 1901, already had in place a court system including a Supreme Court which continues in existence today. The High Court is the final appellate court for all Australian jurisdictions.23

Inglis Clark’s preliminary draft of the Australian Constitution drew extensively from that of the United States.17 It formed the basis for much of what was to appear in the Constitution as finally adopted. In that draft Inglis Clark included four rights derived from American influences. They were: 1. The right to trial by jury. 2. The right to the privileges and immunities of state citizenship. 3. The right to equal protection under the law. 4. The right to freedom and nonestablishment of religion. Inglis Clark also proposed that a state not be able to ‘deprive any person of life, liberty or property without due process of law, or deny to any person within its jurisdiction the equal protection of its laws’.18 Inglis Clark’s rights provisions were debated at the 1898 convention in Melbourne. There was opposition to the proposed guarantees particularly those relating to equal protection and due process. One concern was that they would affect the legislative powers of the states.19 In the event, limited rights provisions were adopted based on those proposed by Inglis Clark. They comprised the right to trial by jury in cases of offences against the commonwealth20 tried by indictment, a prohibition on the commonwealth establishing any religion or preventing the free exercise of any religion21 and the protection of the residents of one state from discrimination by another state on the basis of residence.22 The antidiscrimination guarantee was the relic of Inglis Clark’s equal protection proposal. It is important, however, to acknowledge that these are not the only sources of rights protection in the Australian Constitution. THE SHAPE OF THE AUSTRALIAN CONSTITUTION Under s1 of Chapter I of the Australian

The separation of legislative and executive from judicial powers under the Australian Constitution is sharp. In a leading decision, the Boilermakers’ Case,24 the High Court affirmed that separation. On appeal from the High Court, the Privy Council said that: in a federal system the absolute independence of the judiciary is the bulwark of the Constitution against encroachment whether by the legislature or by the executive.25 The State Constitutions do not contain entrenched separation of judicial power from the powers of the other branches of government. As will be seen, however, Chapter III of the Australian Constitution has a significant part to play in the entrenchment of their independence and impartiality, their separation from the executive and their essential characteristics as courts. HUMAN RIGHTS AND THE AUSTRALIAN CONSTITUTION TODAY In holding, in 1992, that there was no basis in the Constitution for implying general guarantees of fundamental rights and freedoms, the then Chief Justice of Australia, Sir Anthony Mason, said: To make such an implication would run counter to the prevailing sentiment of the framers that there was no need to incorporate a comprehensive Bill of Rights in order to protect the rights and freedoms of citizens. That sentiment was one of the unexpressed assumptions on which the Constitution was drafted.26

There are a number of provisions in the Australian Constitution, including the survivors of the Inglis Clark proposals, which answer to some degree the description of human rights guarantees. Each of them may be summarised briefly: 1. Section 51(xxiiiA) of the Constitution, included in the Constitution in 1946 by referendum, authorises the Commonwealth Parliament to make provision, among other things, for medical and dental services but is subject to the limitation that it does not authorise any form of civil conscription. The preclusion of any form of civil conscription was proposed by Robert Menzies to avoid the power being used to nationalise the medical and dental professions.

that they purport to exclude the court’s jurisdiction in relation to jurisdictional error. 4. Section 80 of the Constitution provides that:

The trial on indictment of any offence against any law of the commonwealth shall be by jury, and every such trial shall be held in the state where the offence was committed, and if the offence was not committed within any state the trial shall be held at such place or places as the Parliament prescribes.

The guarantee of trial by jury is contingent upon the offence being tried by indictment. There have been a number of cases in which the scope of this guarantee has been explored. Where it applies it has been held to require a unanimous verdict of the jurors before a conviction can stand.31 The court recently rejected a submission that, consistently with s80, there could be no appeal against a verdict of acquittal directed by the trial judge.32

2. Section 51(xxxi) of the Constitution authorises the Commonwealth Parliament to make laws with respect to:

the acquisition of property on just terms from any state or person for any purpose in respect of which the Parliament has power to make laws;

This has been taken as imposing a just terms requirement in respect of any compulsory acquisition by the commonwealth of property belonging to the state or to a person. It extends to a very wide range of property interests, described by Sir Owen Dixon in the Bank Nationalisation Case as ‘innominate and anomalous interests … ’.27 A law which extinguishes a property right may bear the character of a law with respect to the acquisition of property.28

3. Section 75(v) of the Constitution confers on the High Court jurisdiction in any matter ‘in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the commonwealth.’ It entrenches judicial review for jurisdictional error. Former Chief Justice Murray Gleeson described s75(v) as providing in the Constitution ‘a basic guarantee of the rule of law’.29 The section was inserted in the Constitution at the suggestion of Inglis Clark, to avoid the deficiency in original jurisdiction identified by Marshall CJ in Marbury v Madison30. Because it is a Constitutional provision, the original jurisdiction it confers on the court cannot be removed by statute. It is proof against privative provisions in statutes to the extent 18 | Brief March 2015

brought to laws providing for grants to the states to be distributed to religious schools. The laws were said to establish a religion contrary to s116. The challenge was rejected. In 1997 the High Court rejected an action brought by Aboriginal people claiming that policies of the Northern Territory designed to place Aboriginal children in foster care in church and state operated homes, had interfered with their freedom to practice their own religion. The majority held that the Aboriginal Protection Ordinance 1918 (NT) was not a law which could be characterised as a law ‘for prohibiting the free exercise of any religion’.35 Recently the court held that arrangements made by the commonwealth for funding the Scripture Union of Queensland to provide chaplaincy services in state schools did not involve the requirement of a religious test as a qualification for any office under the commonwealth. That was because the persons to be appointed to provide the services in state schools were not officers of the commonwealth.36

5. Section 92 of the Constitution provides: On the imposition of uniform duties of customs, trade, commerce, and intercourse among the states, whether by means of internal carriage or ocean navigation, shall be absolutely free.

There are two elements to this guarantee. One is freedom of trade and commerce and the other is freedom of intercourse. That latter freedom was relied upon to strike down national security regulations in 1945 which were found to prohibit interstate movement.33

7. Section 117 of the Constitution prohibits discrimination between residents of states. It provides:

A subject of the Queen, resident in any state, shall not be subject in any other state to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other state.

In an important decision in 1989 the court struck down Queensland laws which required any legal practitioner wishing to practice in Queensland to have his or her principal practice there. Although on the face of it the law, which was a rule made by the Queensland Bar Association, applied to all legal practitioners, it operated to discriminate against out-of-state practitioners.37

The specific guarantees to which I have referred may be seen as falling within the categories of civil and legal process rights and economic and equality rights. Australian Constitutional law academic, Professor Peter Bailey, has made a persuasive case for their similarity to, if not identity with, a number of human rights and freedoms guaranteed under the International Covenant on Civil and Political Rights (ICCPR), the Universal Declaration of Human Rights and

6. Section 116 of the Constitution, which is another of the Inglis Clark rights, provides:

The commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the commonwealth. This guarantee does not apply to the states but only to the commonwealth. It has been litigated from time to time. In Attorney-General (Vic); Ex rel Black v Commonwealth34 a challenge was

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â&#x20AC;&#x153;The legislative powers of the commonwealth do not extend to the making of a law which authorises or requires a court exercising the judicial power to do so in a manner which is inconsistent with its nature.â&#x20AC;?

judicial processes as understood and conducted throughout Australia.43

the International Covenant on Economic, Social and Cultural Rights (ICESCR).38 JUDICIAL POWER AND THE RULE OF LAW Chapter III of the Constitution provides for the federal judicial power to be exercised by the High Court, by federal courts created by the Parliament and also by state courts which are invested with federal jurisdiction. The High Court has resisted legislative or executive intrusions upon the judicial power. As one of the Justices of the High Court, Justice Gummow, said in a case decided in 1998: The legislative powers of the commonwealth do not extend to the making of a law which authorises or requires a court exercising the judicial power to do so in a manner which is inconsistent with its nature.39 The court has not gone so far as to import a ‘due process’ requirement from the text and structure of Chapter III.40 However the Constitutional scheme under which state courts may be invested with federal jurisdiction brings them within the protection of that Chapter. State Parliaments cannot confer upon state courts functions which would so distort their institutional integrity as to make them unfit repositories for federal jurisdiction. It has been said that legislation which requires a court exercising federal jurisdiction to depart to a significant degree from methods and standards which have characterised 20 | Brief March 2015

judicial activities in the past may be repugnant to Chapter III.41 In November 2009 the court struck down a provision of a civil assets forfeiture statute in New South Wales which required the Supreme Court in that state to hear and determine, on an ex parte basis, an application by the New South Wales Crime Commission for an interim freezing order in relation to assets suspected of being the proceeds of crime.42 Under the legislation an application to set aside the restraining order could not succeed unless the applicant proved that it was more probable than not that the interest in the property was not ‘illegally acquired property’. That in turn required the negating of a very widely drawn range of possibilities of contravention of the criminal law found in the common law and state and federal statute law. In the joint judgment of Gummow and Bell JJ their Honours characterised the process thus: The Supreme Court is conscripted for a process which requires in substance the mandatory ex parte sequestration of property upon suspicion of wrong doing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on ex parte applications. In addition the possibility of release from that sequestration is conditioned upon proof of a negative proposition of considerable legal and factual complexity. Section 10 engages the Supreme Court in activity which is repugnant in a fundamental degree to the

In November 2010, the court also held invalid a provision of a South Australian law on the same basis.44 The Serious and Organised Crime (Control) Act 2008 (SA) provided for the Attorney-General of that state to make a declaration about an organisation where the Attorney-General was satisfied that members of the organisation associated for purposes related to serious criminal activity. The declaration was a purely administrative process. Once a declaration had been made, the Commissioner of Police could apply to the Magistrates Court of South Australia for a control order against any member of the organisation and the court, if satisfied that the defendant was a member of a declared organisation, was required to make the order sought. The control order provision was held invalid on the basis that it authorised the executive to enlist the Magistrates Court to implement its decisions in a manner incompatible with that court’s institutional integrity. That was because the exercise of judicial power by the Magistrates Court was so confined and so dependent on the executive’s determination in the declaration that it departed impermissibly from the ordinary judicial processes of an independent and impartial tribunal. Chapter III of the Constitution was held to have another important consequence for the status of State Supreme Courts in a decision delivered in 2010 concerning, inter alia, a privative or ouster clause limiting review by the Supreme Court of New South Wales of decisions made by the Industrial Court of that state.45 The High Court held that state legislation which would take from a State Supreme Court power to grant relief for jurisdictional error on the part of inferior courts and tribunals was beyond state legislative power. Chapter III of the Constitution required that there be a body fitting the description of ‘the Supreme Court of a state’. Its supervisory jurisdiction enforcing limits on the exercise of state executive and judicial power was a defining characteristic of such a body. There are other provisions of the Constitution which have potential connections to human rights. These include the electoral and franchise provisions. Statutory disqualification of any one serving a term of imprisonment for however short a period and for whatever reason, was held invalid by the court in Roach v Electoral

feature Commissioner.46 The electoral and franchise provisions were also the subject of an important decision of the High Court published in December 2010.47 By that decision the court held invalid an amendment to the Commonwealth Electoral Act 1918 (Cth) removing a long-standing period of grace for people to register on the electoral roll, or change their enrolments after an election had been called. The provisions of the Constitution in issue were ss7 and 24. Section 7 requires that the Senators for each state be ‘directly chosen by the people of the state’. Section 24 requires that the Members of the House of Representatives be ‘directly chosen by the people of the commonwealth’. Stay tuned for the second installment of this article to appear in the April edition of Brief.

Recommendation 19.

25.

Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), s4.

Attorney-General of the Commonwealth v The Queen (1957) 95 CLR 529, 540.

26.

Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), s7(a).

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 136.

27.

10.

Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), s7(b).

Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 349.

28.

11.

Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), s7(c).

Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297.

12.

Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), s8.

29.

A M Gleeson, The Rule of Law and the Constitution (ABC Books, 2000) 67.

13.

Kinley and Ernst, fn 1, 61.

30.

5 US (1 Cranch) 137 (1803).

14.

Charter of Human Rights and Responsibilities Act 2006 (Vic).

31.

Cheatle v The Queen (1993) 177 CLR 541.

32.

R v LK (2010) 241 CLR 177.

15.

Human Rights Act 2004 (ACT).

33.

Gratwick v Johnson (1945) 70 CLR 1.

16.

Australian Immigration Fact Sheet 4 – ‘More than Sixty Years of Post War Migration’– Revised December 2011 <www.migration.gov.au/media/ fact-sheets/04fifty.htm>.

34.

(1981) 146 CLR 559.

35.

Kruger v Commonwealth (1997) 190 CLR 1.

36.

Williams v Commonwealth [2012] HCA 23.

A copy of Inglis Clark’s draft is available in J M Williams, The Australian Constitution: A Documentary History (Melbourne University Press, 2005) 80-93.

37.

Street v Queensland Bar Association (1989) 168 CLR 461.

38.

See P Bailey, Human Rights: Australia in an International Context (Butterworths, 1990); P Bailey, The Human Rights Enterprise in Australia and Internationally (LexisNexis, 2009).

39.

Nicholas v The Queen (1998) 193 CLR 173, 232 [146] (citations omitted).

40.

Thomas v Mowbray (2007) 233 CLR 307, 355 [111] (Gummow and Crennan JJ).

41.

ibid.

42.

International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319.

17.

18.

NOTES

Mercury, 19 August 1897. The amendment also appears in ‘Proposed Amendments to the Draft of a Bill to Constitute the Commonwealth of Australia’, Australian Archives Mitchell, Series R216, Item 310 at 4 and cited in J M Williams, ‘With Eyes Open: Andrew Inglis Clark and Our Republican Tradition’ (1995) 23(2) Federal Law Review 149, 176.

D Kinley and C Ernst, ‘Exile on Main Street: Australia’s Legislative Agenda for Human Rights’ (2012) 1 European Human Rights Law Review 5870.

19.

Official Record of the Debates of the Australasian Federal Convention, Melbourne, 8 February 1898, 669-670.

20.

Constitution, s80.

43.

ibid., 366-367 [97]-[98].

Kinley and Ernst, fn 1, 59.

21.

Constitution, s116.

44.

South Australia v Totani (2010) 242 CLR 1.

Recommendation 4.

22.

Constitution, s117.

45.

Recommendation 11.

23.

Constitution, s73.

Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531.

Recommendation 12.

24.

(2007) 233 CLR 162.

Recommendation 18.

R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.

46.

47.

Rowe v Electoral Commissioner (2010) 243 CLR 1.

SOCIETY 4.

EVENT 5.

Wednesday, 4 February 2015 Terrace Hotel

The first Wednesday of February marked the Society’s first social event of 2015 with over 100 members of the legal profession making their way up St George’s Terrace to Society Club! Held at the prestigious Terrace Hotel for the first time, the entire front alfresco area of the venue was reserved for everyone to enjoy. The late afternoon sun spied through leafy greenery, making the cooling water mist shine amidst buzzing conversation and laughter. It was the perfect combination of modern style with a classic feel. Colleagues, peers and friends caught up on holiday tales and expectations for this coming year, which was fantastic to see. President of the Society,

Matthew Keogh, and Young Lawyer Committee Convenor, Emma Cavanagh, said a few words and welcomed everyone back from the festive break. Generous platters of delicious finger foods were served to accompany delectable beverages, ever fitting for a summer afternoon in Perth. Many thanks to our sponsors: Leap Legal Software; Law in Order and; TFS Corporation Ltd, who made this event possible. Thank you everyone who was able to attend and we look forward to seeing you at future events in 2015.

CAUGHT ON THE NIGHT: 1.

Avril Bartlett, Corruption & Crime Commission and; Tirzah Anglin, Leading Age Services Australia.

Samantha Long and Alessandra Cavicchia, Perth Family Lawyers.

Rosanna Maugeri; Greg McIntyre SC, John Toohey Chambers and; Rebekah Dawson, MDS Legal.

Emma Cavanagh, Minter Ellison and; Matthew Keogh, President of the Law Society of Western Australia.

Peter Lochore; Paul Evans, State Solicitor’s Office and; Rosie Hill, State Solicitor’s Office.

Bennett Greenhalgh, Gilbert & Tobin; Katrina Palmer, Leaker Partners and; Gemma Cronin, Julian Johnson Lawyers.

Shzan Piandowski, SGS Australia Pty Ltd; Marshall McKenna, Allens; Stacey Back, Profile Legal Recruitment and; Ray Christiensen, Zilkens.

Proudly sponsored by

ATO Guidelines Professional service firms’ allocation of profits

Fiona Halsey Halsey Legal Services and member of the Taxation Committee In 2014, the Australian Taxation Office (ATO) released risk assessment Guidelines Assessing the Risk: Allocation of Profits Within Professional Services Firms. The guidelines explain how the ATO will assess tax compliance risks associated with the allocation of profits within professional firms. The ATO refers to the guidelines as a working draft, however, the ATO will apply the guidelines from the 2014/2015 income year. Although the guidelines do not have the status of a taxation ruling or determination, all practitioners who have a financial interest, direct or indirect, in a professional services firm should be aware of the guidelines, and consider the application of the guidelines to their firms. The guidelines also apply to clients of firms in their own right, if those clients are or have a financial interest in a professional services firm. Accordingly, practitioners should be aware of the guidelines, and consider the application of the guidelines to their own and their clients’ affairs. The guidelines appear to be based upon a pragmatic approach. The ATO states that the guidelines are based around a “structurally neutral approach”, and are outcomes based. The approach could be described as “follow the money”, because the ATO appears to be interested in actual financial outcomes, rather than the use of particular business structures. DO THE GUIDELINES APPLY TO YOU? The guidelines will apply if: •

• •

you are an individual professional practitioner (IPP) providing professional services to clients of the firm or you are actively involved in the management of the firm; your firm operates as a partnership, trust or company; and t he income of the firm does not constitute income from personal services.

The guidelines apply to all kinds of professional services firms – lawyers, accountants, architects, doctors and so on. 24 | Brief March 2015

It is uncertain from the guidelines whether the failure of one member of the firm to satisfy at least one of the guidelines will potentially lead to all members of the firm ‘enjoying’ the higher level of compliance attention from the ATO. In most of the examples in the guidelines, there is reference to the individual practitioner facing additional enquiry from the ATO, rather than a reference to the members of the firm facing additional enquiry. ATO’S POSITION The ATO has expressed concerns that practice income is being treated as income generated by a business structure, even though the source of that income is predominately the result of personal services from one or more individuals. Taxpayers who meet one of the three guidelines below will be rated as low risk and will not be subject to compliance action by the ATO on this issue. The guidelines are as follows: 1. The assessable income the IPP receives in their own hands is an appropriate return for the services they provide to the firm. To determine the appropriate level of income, the taxpayer can use the level of remuneration paid to the highest band of professional employees providing equivalent services to the firm or, if there are no such employees in the firm, the taxpayer can use the level of remuneration from comparable firms or relevant industry benchmarks; or 2. 50% or more of the income that the IPP and their associated entities are collectively entitled to in tahe relevant year is assessable in the hands of the IPP; or 3. The IPP, and their associated entities, both have an effective tax rate of 30% or higher on the income received from the firm. PRACTICAL COMMENTS AS TO EACH OF THE GUIDELINES Consideration of the level of remuneration

which is acceptable will be an interesting task, and one where the views of practitioners may differ from the views of the ATO. In the video,1 the ATO suggests that the payments made to the top quartile of the relevant band of employees providing equivalent services be used as the benchmark for determining the IPP’s appropriate level of income. The ATO states that to determine whether equivalent services are provided, consideration must be given to clientfacing responsibilities, responsibility for management decisions, finalisation of work, attracting and retaining clients and approval of client billing. However, if there is no comparable band of employees within the firm, and an external industry benchmark is unavailable because the firm is in a remote area, is unique in the services it provides or has a niche operation, then the firm should not utilise this measure. We have some concerns about this. Our experience is that partnership (or other equivalent positions in alternative structures, such as directors in incorporated legal practices) typically brings with it a level of responsibility which exceeds that of employees. That is why many skilled and senior practitioners either choose not to become partners, preferring to remain as Special Counsel, or once they reach a certain age and decide to slow down a little, revert to the position of Special Counsel. We do not believe that the difference between Special Counsel/Senior Associate and equity partner is always just a matter of who has contributed equity to the firm. We also believe that there should be an allowance for the contribution of equity to the firm and the risk adopted by the partners of the firm. HIGH RISK Taxpayers who fail to meet one of the three guidelines will be rated as higher risk and subject to compliance action by the ATO. In cases where the taxpayer is considered higher risk, the lower the effective tax rate paid by the IPP and their associated entities, the higher the compliance risk and the greater

the likelihood of the ATO commencing compliance action. For example, the ATO would consider an arrangement with an effective tax rate of 15% to be higher risk than an arrangement with an effective tax rate of 35%.

functions as the partners of the firm. •

The remuneration band of Special Counsel employees is from $150,000 to $350,000, the upper quartile average is $330,000.

Application of Guideline 1 Example

•

The ATO provides a detailed and helpful example in the video. The example is replicated below in full. Example: Background Facts •

•

A law practice is structured as a partnership of trustees of discretionary trusts each controlled by an IPP. There are seven partners who share in profits of the firm equally.

•

The firm made a profit of $3.5 million for the year.

•

The firm has 50 professional staff, 12 of which are at the Special Counsel level who provide relatively commensurate services and

•

This measure should not be relied on where there: •

are no equivalent employees; or

•

no appropriate market basis for the comparison.

Guideline 1: Example Application

IPP receives assessable income from the firm in their own hands as an appropriate return for the services they provide to the firm. Based on total remuneration package of top quartile of qualified employees who provide commensurate services, including: •

client interaction;

•

development;

•

attraction and retention;

•

authorisation of work;

•

firm management decisions; and

•

approving billing.

•

The equivalent measure of the firm is $330,000 based on the example.

•

Partner 1 and 2 would satisfy this measure by returning at least an equivalent amount to represent their services.

•

Partner 3 through 7 are significantly below the measure. They are unable to satisfy this measure.

Application of Guideline 2 •

Alternatively, industry benchmarks may be suitable.

50% or more of the income to which the IPP and their associated entities are collectively entitled (whether directly or indirectly through interposed entities) in the relevant year is assessable in the hands of the IPP.

Example: Partner Income Distribution IPP Personally

IPP Spouse

Other

Total

Partner 1

$400,000

$100,000 (Corporate beneficiary)

$500,000

Partner 2

$330,000

$100,000

$70,000 (Corporate beneficiary)

$500,000

Partner 3

$200,000

$300,000

$500,000

Partner 4

$255,000

$145,000

$100,000 (Split between 2 adult children)

$500,000

Partner 5

$500,000

Partner 6

$100,000

$300,000 (loss entity)

$500,000

Partner 7

$225,000 ($25k super contribution)

$50,000 (Corporate beneficiary)

$500,000

Guideline 2: Example Application

TIMELINE

•

The equivalent amount for the firm is $250,000 based on the example.

•

Partner 1 and 2 would also satisfy this measure by returning at least 50% personally.

•

Partner 4 would satisfy this measure.

The guidelines will have application from 2014-15 and beyond. The ATO plans to review the guidelines during at least 2016-17 (although possibly earlier from our correspondence with the ATO) and is looking for a suitable test case to obtain judicial guidance.

•

Partners 3, 5, 6 and 7 are significantly below the measure. They are unable to satisfy this measure.

Application of Guideline 3 •

The IPP, and their associated entities, both have an effective tax rate of 30% or higher on the income received from the firm.

Guideline 3: Example Application •

The equivalent threshold for the firm is tax payable of $150,000 per partner based on the example;

•

Partner 1, 2 and 4 would also satisfy this measure;

•

Partner 3, 5, 7 are able to rely on this measure to be considered low risk; and

•

Partner 6 is unable to meet this measure. As partner 6 has not satisfied any of the measures, they will be considered higher risk.

ADDITIONAL ENQUIRY FROM THE ATO In recent years, the ATO has significantly increased its data matching capacities. It would seem, however, that in order to obtain information to determine if taxpayers are within the guidelines, the ATO might send questionnaires to practitioners. This practice has been used by the ATO in other areas. It has also become an accepted technique used by ASIC. Accordingly, practitioners may not be able to avoid the issues associated with this by simply keeping a low profile.

NOTE Although a taxpayer may not be considered a higher risk on this compliance measurement tool, the guidelines only provide protection in some situations. The ATO may deem the taxpayer to still be a higher risk if other circumstances exist which the ATO see as a compliance risk. There are a number of categories of these circumstances, which include cases of non-recognition of net capital gains, transfer pricing, misuse of the superannuation system, late lodgement of returns, income injection to entities with carry forward losses and avoidance of Division 7A. Where these situations come to the attention of the ATO, it seems likely that the taxpayer will still ‘enjoy’ the compliance attention of the ATO even if the guidelines apply. The guidelines do not provide protection: (a) in relation to personal services income;2 or (b) where the structure which has been established (for example, the trust, partnership or company which is purportedly providing the services) has not been properly established. It appears from the comments by senior ATO staff that this occurs quite frequently. OTHER PRACTICAL COMMENTS The guidelines are only available online, and there is no hard copy available from the ATO. The structure of the text shown for the guidelines is visually quite

informal, and we wondered if we were actually looking at the guidelines or at some introductory page. However, when we contacted the ATO, the ATO confirmed that we were considering the correct material. At the time of writing, we located a short and informative video on the ATO website. It was also possible to download the transcript from that video. We found that video and transcript provided further information which was very helpful in interpreting the guidelines and the ATO’s intentions. We found the guidelines limited in some circumstances. The ATO intends to update the guidelines, and the ATO recommends accessing the guidelines online, to ensure that the most recent version is being accessed. From a practical perspective, we found it difficult to know how this would really work in practice, and it also concerned us. By way of example, we started writing this article in December 2014, and by February 2015, we were not sure if we were dealing with the same guidelines that had been on the website in December. WHAT SHOULD YOU DO? If the guidelines apply to you, we recommend that you consider the application of the guidelines to your particular circumstances. You should also consult your professional taxation adviser to determine if your current structure is effective, or is likely to cause you to ‘enjoy’ escalating compliance attention from the ATO. NOTES

As noted towards the end of this article, the ATO has created a video which is also available on the ATO website, and it is from this video that the example has been extracted.

Personal services income is defined in s84-5 of the Income Tax Assessment Act 1997, and in broad terms, is income which is gained mainly as a reward for the personal efforts or skills of an individual.

Example Summary Guideline 1

Guideline 2

Guideline 3

Overall Risk Rating

Partner 1

Satisfied

Low Risk

Partner 2

Satisfied

Low Risk

Partner 3

Not Satisfied

Satisfied

Low Risk

Partner 4

Not Satisfied

Satisfied

Low Risk

Partner 5

Not Satisfied

Satisfied

Low Risk

Partner 6

Not Satisfied

Higher Risk

Partner 7

Not Satisfied

Satisfied

Low Risk

26 | Brief March 2015

Peter Johnston – Eulogy

The Hon Robert French AC, Chief Justice of the High Court of Australia Perth, Saturday 31 January 2015

It is customary for us to celebrate the life of a friend who has died — to reflect upon and bear witness to his goodness. This is what we do today for our friend, Peter Johnston. But our celebration cannot cloak our mourning — the recognition and acceptance of the real and personal loss felt by each of us who knew him well, and by no-one more acutely than Vicky, his wife and soul mate, and by Peter’s family. When a good friend dies, a part of ourselves is gone. We will no more enjoy his companionship, his humour, his gentle gibes, his love and knowledge of the law and of wine and song and music. It takes some time for the reality to sink in. Yet it is, in acknowledging our loss and the pain that comes with it, that we honour him and value our memories of him. My memories of Peter go back nearly 40 years when he asked me to undertake some tutoring for his constitutional law students at the University of Western Australia. That began a long friendship and many professional collaborations. In the late 1970s we began representing environmental activists together. One case we took on involved the defence of a group known as the Wagerup 23, who had obstructed bulldozers involved in the construction of an alumina refinery. The case had three results. We won it on a legal technicality. Another point we had argued led to the urgent enactment of a new state law, the Government Agreements Act 1979, and The West Australian newspaper published an editorial pointing to our win as evidence that the law was an ass. Subsequently another piece of legislation was rushed through the West Australian Parliament to bar an action which we had brought on behalf of market gardeners south of the river, challenging the validity of a proposed project to use ground water on which they relied as part of the metropolitan water supply. The two statutes the Government Agreements Act 1979 and the Metropolitan Water Supply Sewerage and Drainage 28 | Brief March 2015

Board (Validation) Act, both stand as small monuments to our joint litigious enterprises. Peter was very fond of the word ‘synchronicity’ which he deployed in a number of contexts. He would, I think, enjoy the fact that his godson, our son Tom, will be co-authoring a paper on the Wagerup 23 case for a special edition of The University of Western Australia Law Review to be published in Peter’s honour later this year. I can just hear him saying “What synchronicity”. Another of his favourite words was ‘schizophrenic’ to describe reasoning or legal principles which he thought, internally inconsistent. Occasionally he applied it to the High Court. The biggest windmill at which we tilted together in 1980 and 1981 was an amendment to the Electoral Act of Western Australia taking away the voting rights of a prisoner who had been acquitted on the grounds of unsoundness of mind, but was detained indefinitely at the Governor’s pleasure. We had a surprising, some would say astonishing, win in the Full Court of the Supreme Court, which held that the amendment was not valid1. Breathless newspaper reports predicted apocalyptic results for state laws if our point were to be maintained on appeal. The state wanted to appeal to the Privy Council in London rather than to the High Court. Peter was keen to go to London as Wimbledon would have been on at about that time. In the end, I think it was at my urging, we put self-interest to one side and argued successfully that the state could not go to the Privy Council but had to appeal to the High Court2. The High Court sat all seven of its Justices in Perth to hear the case, the first time in its history that it had done so. We went down 7/0 much to Peter’s disgust3. I never heard him suggest that we would have won if we had gone to the Privy Council. Peter Johnston was a legal omnivore. He had an enormous appetite for all areas of the law in which he was

involved as an advocate and advisor and in later years as a decision-maker on the Administrative Appeals Tribunal, the Human Rights Commission and the Environmental Protection Authority. But above all he was a teacher. He brought to his lectures an intellectual adventurousness, coupled with real world perspectives, that enlivened his classes and engaged his students. His signature statement was ‘We don’t just teach constitutional law here — we make it’. He taught in a number of Australian law schools and overseas. He taught for a long time at the University of Western Australia and at Monash University. He taught in constitutional and administrative law, human rights law, international law, mining and energy, taxation, criminal law, and environmental law. Peter was a prime mover in ensuring that law students at the University of Western Australia were able to participate in a very high profile international competition called the “Jessup Moot”. Each law school in the competition would field a team of students to put argument to a bench of judges in a mock hearing on an important and complex problem of international law. In 2002, his efforts and the talents of the students with whom he worked, resulted in the UWA team not only winning the national final but going on to win the international final in Washington against some of the most prestigious universities in the world. One of the students who took a leading role in that winning team, Ben Spagnolo, now an academic at Oxford, has sent an email to Vicky and I would like to quote a little of it: I remember vividly when I first met Peter at my Jessup interview in mid-2002. His intellect, his sense of humour and, above all, his infectious enthusiasm for all kinds of endeavour have been the hallmarks of a relationship I have been tremendously pleased to enjoy, going from a teacher-student context to a rounded friendship very naturally. I shall forever be grateful

for his example in navigating that change and for the interest he has always taken in me. Peter’s guidance as a mentor and colleague — to say nothing of his support as a referee! — have been very significant in my life. Moreover, his many passions — for words and languages, for history, for music, for good wine, good food and great company — have made a lasting impression and I have felt privileged to renew our friendship on so many occasions, despite the tyrannies of distance. ... Peter has many friends and devotees, people whom he has helped, taught and inspired and who are now scattered around the globe. He has changed the lives of many, so much for the better … Another of Peter’s students, Karyl Nairn QC who is a Queens Counsel at the English Bar, also wrote of him as a teacher: I have always treasured my days at law school as one of Peter’s admiring students ... in the 1980s. He wore a shoelace tie, like the Americans, and we felt he was always a bit subversive, always on the students’ side. He was a kind, generous, and inspiring lecturer. Con Law was easily my favourite subject of my degree and that was entirely due to Peter’s lectures. They were thoughtful and challenging. He

always found time for students and I undoubtedly bored him with my daft questions but he was always patient and generous with his time. I feel so sad that I will not have another chance to enjoy his good company and to tell him again what a privilege it was to be one of his students. Peter’s involvement with legal practice was an indispensible adjunct to his teaching. He was enthusiastic about most areas of the law but particularly enthusiastic about the law of the sea. In the 1980s, we represented the owner of a cray fishing boat at Jurien Bay who was prosecuted for arson. The boat had had engine trouble and in a fit of irritation the owner had said to his crewman ‘Oh, burn the bastard’. The crewman was a literal kind of fellow. The resulting conflagration which destroyed the boat took place 400 metres from low water mark in Jurien Bay. Peter and I perceived a legal gap in the application of the Criminal Code to the place in Jurien Bay where the boat had been moored. We went to see the judge in his chambers with the prosecutor before the trial and informed him that we proposed to plead to the jurisdiction. A map of Jurien Bay was produced on which Peter had drawn lines of a kind in which he delighted. The judge said: why don’t you plead not guilty as well and see what happens. Peter’s theory was never tested. We

pleaded not guilty and pleaded to the jurisdiction. The crewman who was called as a witness for the Crown turned out to be a hostile witness. At the end of the Crown case, we submitted that the Crown evidence was insufficient to go to the jury. The judge agreed. He told the jury that just because the accused owner had said ‘Oh, burn the bastard’ to his crewman, he was no more guilty of arson on that account than King Henry was guilty of the murder of Thomas A’Becket when he asked rhetorically: ‘Who shall rid me of this turbulent Priest’? The jury looked puzzled but did as they were told and returned a verdict of not guilty. It was a rare win for the Johnston/French team. Our client applied the proceeds of 29

his insurance claim to open a Spanish restaurant. We went to the opening, which was a splendid event but twelve months later the restaurant had crashed and burned —in a metaphorical financial sense. Peter’s enthusiasm for the law of the sea was not always welcome. We had been to court together one morning and had lunch at Luis Restaurant before getting on the Rottnest ferry to join our families on Rottnest Island. As we cleared Fremantle, I started to feel increasingly uncomfortable. Peter tried to distract me from my discomfort with talk of law of the sea and debates about where the internal waters of Western Australia began and ended. As I reached for my seventh brown paper bag I asked him for the first time and only time in our professional relationship, to say nothing more. Peter’s involvement in major constitutional and public law cases extended well beyond those in which he and I worked together in the 1970s and early 1980s. They included cases about voting power, native title, Aboriginal rights in relation to state revenue, the power of the Commonwealth over corporations, war crimes and even a family law case. He worked with many leading counsel around Australia. Often in public interest cases he gave his services free of charge or for a greatly reduced fee. He has written widely having being published in a number of law journals on a variety of topics.

Recently, he contributed an engaging final chapter to a book of essays written by Nick Hasluck under the title “Legal Limits”. Peter held a number of important public offices. I have already mentioned three of them. He also served as Chairman of the Law Reform Commission of Western Australia and as a member of the Dental Board, the Pearl Industry Advisory Board and the Consumer Affairs Council. In the wider universe beyond the law, he sang regularly with the Chapel Choir. Since the early ‘60’s Peter sang with various choirs; Michael Brimer’s Bach Choir at UWA, later the Collegium Musium Choir led by Margaret Pride and commencing in the late 1980’s with the Chapel Choir. He knew his music, he had an encyclopaedic knowledge of wine and a deep interest in literature. Valerie and I have had the privilege of a long friendship with Peter from our early days with him and his family, Noelle and their sons, Michael, Nathan and Jeremy. Jeremy served as my associate when I was a judge in the Federal Court. Peter was godfather to our son Tom. In more recent years we have seen much of Peter and Vicky. I was privileged to be able to attend their wedding in Canberra on 4 November 2006 and to support its legal efficacy by acting as a witness. We have joined with them on many occasions since in Melbourne and in Perth and particularly at Denmark, a place in which both of them delighted.

They found in each other a true soul mate with shared interests in all the areas that I have mentioned. They became collaborators in teaching and in some important litigation. Vicky seems to know almost as much about wine as Peter. When they started engaging in dialogue about wines Valerie and I were very much bystanders. I could put on any piece of classical music and either or both of them could pick what it was. Their love was evident. Her love for Peter was never more deeply demonstrated than in the last, extraordinarily difficult weeks leading up to his death. It is difficult to find consolation in the sadness at Peter’s passing. But if there is, for us it was his last day before his illness struck. It was a perfect day in Denmark. He swam at Green’s Pool then went into the town with Vicky and Valerie. Later in the afternoon we all went to a winery at Kent River, tasted wine and joked and gossiped with the owners who were well known to both Vicky and Peter. We dined together that night and watched a Swedish thriller. In the early hours of the morning the beginnings of the tragedy struck. We have all lost a friend of the finest kind. We are all the better people for having known him and carry his memory as part of ourselves. Farewell old friend. NOTES

Wilsmore v Western Australia [1981] WAR 159.

Western Australia v Wilsmore [1981] WAR 179.

Western Australia v Wilsmore (1982) 149 CLR 79.

Lawyer of the Year Awards The Law Society of Western Australia invites members of the Western Australian legal profession to submit entries to the 2015 Law Society Lawyer of the Year Awards, with winners announced Friday, 15 May 2015. The Society presents these awards to acknowledge outstanding WA legal practitioners in the following categories: • •

Lawyer of the Year (more than five years’ experience) Lawyer of the Year (less than five years’ experience)

For more information or to nominate for this award, please visit the Society’s website.

Law Week Law Week is part of an annual, national programme of events taking place between 11 - 15 May 2015, with a focus on Law and Justice in the Community. The Society is planning a range of events for the benefit of members of the public and the legal profession to highlight and celebrate the role of law and the profession in our community. For further information about Law Week, please contact Francesca Giglia, Administration Officer, Programmes via email at fgiglia@lawsocietywa.asn.au or phone on (08) 9324 8606. lawsocietywa.asn.au

30 | Brief March 2015

WA searches for a lawyer with a heart of gold Nominations open for Attorney General’s Community Service Law Award

The quest to find Western Australia’s top pro bono legal practitioner is on, with nominations open for the 2015 Attorney General’s Community Service Law Award. Attorney General Michael Mischin is inviting legal practices, practitioners and community organisations to nominate candidates who have made a sustained pro bono contribution of time and capability to the local community. “There is so much good work happening in this area and it is important to recognise the commitment, expertise and selfless work of these practitioners,” Mr Mischin said. Now in its ninth year, the award’s previous winners have included: •

Elspeth Hensler (2014), who acted for refugees, foster carers and war veterans;

•

David Jenaway (2013), who handled the day-to-day

management of Herbert Smith Freehills’ pro bono programme; •

Kylie Groves (2012), who used her legal skills and experience to provide pro bono legal services to individuals, charities and not-for-profit organisations; and

•

Michael Cockram (2011), who provided pro bono service to the Citizens Advice Bureau.

Nominations must be received by the Department of the Attorney General by 11am on Thursday, April 16 2015.

The Hon Michael Mischin MLC, Attorney General with last year’s winner Elspeth Hensler.

For a nomination form or more information, visit www.dotag.wa.gov.au/lawaward

Shearn HR Legal - Human Resource + Recruitment wishes all our Clients & Candidates a very prosperous New Year, welcoming our 17th year in exclusive legal recruitment! Call Julianna for your 2015 requirements now! 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 31

NO TRUST

OR CONFIDENCE WHAT ABOUT GOOD FAITH? John Blackburn Barrister, Francis Burt Chambers

In Commonwealth Bank of Australia v Barker1 (Barker) the High Court has conclusively rejected the implication of a term of mutual trust and confidence in all employment contracts. The court held that the term did not answer the criterion of necessity required to support its implication in law in employment contracts generally. The decision settles one of the most contentious questions in Australian employment law.

32 | Brief March 2015

Her Honour concluded that contracts of employment do not require the implication of a term of mutual trust and confidence for their effective operation.

THE BACKGROUND At the time of his dismissal Mr Barker was an executive manager who had been employed by the bank for 27 years. In March 2009 Mr Barker was informed his position was to be made redundant and that, if he was not redeployed within the bank, his employment would be terminated in four weeks. The Bank’s redeployment policy provided that employees whose positions had been made redundant should be given the earliest practicable advice and consulted in relation to their options for redeployment. This did not occur, the redeployment process miscarried and the bank terminated Mr Barker’s employment.

MUTUAL TRUST AND CONFIDENCE The term of mutual trust and confidence which Mr Barker sought to imply was recognized by the House of Lords in Malik v Bank of Credit and Commerce International SA (In Compulsory Liquidation) (Malik)3 and is part of English law. The term accepted in Malik is that the parties to an employment contract will not, without reasonable and proper cause, conduct themselves in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.4 Malik concerned the obligation of the employer but it was accepted that the obligation was reciprocal. Unsurprisingly given the open ended nature of the term, a wide range of conduct has been found to give rise to a breach including sexual harassment by the employer, bullying and excessive workloads, warning or suspending

Mr Barker argued that had the bank complied with its redeployment policy he would have been redeployed. Alternatively, Mr Barker claimed damages for the loss of a chance to be redeployed. The difficulty was that the redundancy policy was not a term of Mr Barker’s contract of employment. The policy was included in the bank’s HR Manual which expressly stated the manual did not form any part of any employee’s contract of employment. To get around this difficulty, Mr Barker argued that there was a term of mutual trust and confidence implied by law into his employment contract and that the bank’s failure to comply with its redeployment policy was a breach of the implied term.2

an employee without justification, capriciously exercising a contractual right to relocate employees and requiring an employee to undergo a psychiatric examination.5 In Malik the respondent was found to have breached the term by operating a corrupt business, which affected the employees’ ability to find new employment. As Kiefel J pointed out in Barker, the term recognized in Malik, which Mr Barker sought to imply, is to be distinguished from an employee’s duty of trust and confidence, also referred to as a duty of fidelity, which the law has for a long time implied in contracts of employment.6 An employee has an implied duty of fidelity to the employer not to engage in conduct which “impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee”. Breach of the duty may justify dismissal. The High Court’s decision in Barker does not affect that duty.

THE HIGH COURT’S DECISION AND THE TEST OF NECESSITY While Kiefel J and Gageler J delivered separate judgments, their reasons do not differ substantially from the joint judgment of French CJ, Bell and Keane JJ. The joint judgment began by expressing the need for caution in applying decisions about employment contracts in other common law jurisdictions and the need to keep within the limits of the judicial function and not trespass into the province of legislative action.7 The crux of the matter however was the criterion of ‘necessity’. Their Honours said: [29] In Byrne v Australian Airlines Ltd, McHugh and Gummow JJ emphasised that the ‘necessity’ which will support an implied term in law is demonstrated where, absent the implication, “the enjoyment of the rights conferred by the contract would or could be rendered nugatory, worthless, or, perhaps, be seriously undermined” or the contract would be “deprived of its substance, seriously undermined or drastically devalued”. The criterion of ‘necessity’ in this context has been described as ‘elusive’ and the suggestion made that “there is much to be said for abandoning” the concept. Necessity does, however, remind courts that implications in law must be kept within the limits of the judicial function. They are a species of judicial law-making and are not to be made lightly. It is a necessary condition that they are justified functionally by reference to the effective performance of the class of contract to which they apply, or of contracts generally in cases of universal implications, such as the duty to cooperate. Implications which might be thought reasonable are not, on that account only, necessary. ... [36] ... In the end ... this court must determine the existence of the implied duty by reference to the principles governing implications of terms in law in a class of contract. That requires this court to determine whether the proposed implication is ‘necessary’ in the sense that would justify the exercise of the judicial power in a way that may have a significant impact upon employment relationships and the law of the contract of employment in this country. The broad concept of ‘necessity’ discussed earlier in 34 | Brief March 2015

these reasons may be defined by reference to what “the nature of the contract itself implicitly requires”. It may be demonstrated by the futility of the transaction absent the implication. It is not satisfied by demonstrating the reasonableness of the implied term. [37] ... The implied term of mutual trust and confidence ... imposes mutual obligations wider than those which are ‘necessary’, even allowing for the broad considerations which may inform implications in law. For the same reason the joint judgment rejected Mr Barker’s alternative claim that the term of mutual trust and confidence should be implied as a matter of fact into his employment contract. Notwithstanding Mr Barker’s seniority and long service, there was no particular feature of his contract that made the implication of such a term necessary.8 Kiefel J similarly referred to Byrne v Australian Airlines Ltd9 and also to Breen v Williams10 in holding that a requirement for the implication of a term (whether in fact or law) is that it be necessary in the sense that without the term the enjoyment of the rights conferred would be “rendered nugatory, worthless or ... seriously undermined”.11 Her Honour described the requirement of necessity for the implication of a term as ‘fundamental’ and having the advantage of providing objectivity to the test employed by the courts.12 Her Honour concluded that contracts of employment do not require the implication of a term of mutual trust and confidence for their effective operation.13 For the same reason, a more specific term, deriving from notions of fairness, that an employer must attempt to redeploy an employee before terminating his or her employment was not to be implied as an incident of all contracts of employment. Contracts of employment are not rendered futile because of the absence of a term to that effect.14 Gageler J also referred to the test of necessity, though his Honour appeared to adopt a less stringent approach than the other justices saying, at [114]: The sense in which ‘necessity’ is used in this context is that of “something required in accordance with current standards of what ought to be the case, rather than anything more absolute”. The requisite inquiry is informed by a consideration of what is needed for the effective working of contracts of that class. But the inquiry is not exhausted by that consideration; it does not exclude considerations of justice

and policy. Couching the ultimate evaluation in terms of necessity serves usefully to emphasise this and no more: that a court should not imply a new term other than by reference to considerations that are compelling. In declining to follow Malik the joint judgment observed that the implied term had developed in the United Kingdom, following the enactment of a constructive dismissal provision in labour legislation in 1974, as a test for determining when an employee could be said to have been constructively dismissed. The history of the development of the term in the United Kingdom was said not to be applicable to Australia. Further, although Malik was the first occasion on which the implied term was considered by the House of Lords, it appeared to have been treated as a fait accompli, reflecting a consensus as to the implication which predated Malik. Kiefel J similarly observed that the term adopted in Malik did not have its origin in decisions of the ordinary courts but rather those of employment tribunals exercising statutory powers with respect to unfair dismissals,15 that the question of whether the term of trust and confidence should be recognized was not argued in Malik,16 and that a test of necessity did not appear to have been applied.17 Gageler J also described the emergence of the implied term in the United Kingdom as being the product of particular statutory circumstances which have no analogue in Australia.18 Finally the joint judgment referred to the complex policy considerations attached to the implication of such a term and to fact that the implication would impose obligations on employees as well as employers. For these reasons also the matter was more appropriate for the legislature than the courts to determine.19 Gageler J adopted the dissenting reasons for judgment of Jessup J in the Full Court of the Federal Court referring to the inherent uncertainty in the manner in which the implied term was framed which gave it, as Jessup J had put it, “the potential to act as a Trojan horse in the sense of revealing only after the event the specific prohibitions which it imports into the contract”. Gageler J also referred to the potential for the implied term to circumvent established limits of common law and equitable remedies for breach of more conventional terns and to intrude a common law policy choice into an area of frequent, detailed and often contentious legislative activity.20 These were all additional reasons why the term ought not be imported into the common law of Australia.

OTHER IMPLIED DUTIES With the High Court having firmly shut the door on the implication of a term of mutual trust and confidence, attention will now turn to other implied terms which plaintiffs may call in aid. All members of the court in Barker accepted that there is a term implied in law in every contract which requires a party to a contract to do all things necessary to enable the other party to have the benefit of the contract. This duty to cooperate was said to satisfy the criterion of necessity explained in Byrne. This duty did not assist Mr Barker however because, as the redeployment policy was not a term of his employment contract, there was no relevant contractual benefit with which the implied term could engage.21 Nonetheless the implied duty to cooperate remains available in an appropriate case. More contentiously, the court in Barker expressly left open the question of whether there is a general obligation to act in good faith in the performance of contracts and the related question whether contractual powers and discretions may be limited by good faith and rationality requirements analogous to those applicable in the sphere of public law. Those questions were not before the court.22 As Kiefel J noted the question of whether a standard of good faith should be applied generally to contracts or to particular categories of contracts such as employment contracts has not been resolved in Australia.23 It is not easy to see what the practical difference would be in an employment context between a term of mutual trust and confidence and one of good faith. Indeed in Australia it had been suggested, prior to Barker, that the duties of good faith and mutual trust and confidence were part of a single obligation.24 While attempts will no doubt be made to resurrect the rejected trust and confidence term under the rubric of an implied duty of good faith, the restatement in Barker of a rigorous test of necessity, requiring for the implication of a term that it be necessary in the sense that without the term the enjoyment of the rights conferred would be “rendered nugatory, worthless or ... seriously undermined”, and the need for caution expressed in the joint judgment and the judgment of Gageler J, presents a very high barrier to the implication in a class of contracts generally of any new term – particularly one as broad and potentially far reaching as a duty of good faith. Simply put, it is difficult to see why

accept the trial judge’s reasoning that a serious failure of the redeployment policy amounted to a breach of the implied term. However, the majority held, without relying on the policy, that in circumstances where Mr Barker was a long-term employee of a large corporate employer and his contract contemplated that his employment may be terminated if the bank was unable to place him in an alternative position, the implied term required the bank to take positive steps to consult with Mr Barker about alternative positions and to give him the opportunity to apply for them: [2013] FCAFC 83 at [110]-[112], [117] and [129]-[132].

a term of good faith would be any more necessary in employment contracts generally than a term of mutual trust and confidence. The obvious argument against the implication of a good faith requirement in employment contracts generally is that employment law in Australia has managed well enough without such a term so that it cannot be justified by ‘necessity’. The counter argument is that the common law is not frozen in time, and that the necessity of such a term must be assessed according to contemporary Australian policy positions regarding the appropriate relationship between employers and their employees.25 However that argument was put in Barker,26 in support of the implication of a term of mutual trust and confidence, and ultimately failed. Indeed, the joint judgment considered such policy positions to be all the more reason why the matter should be left to the legislature.27 Another factor which will militate against any finding of necessity is the complex web of legislation which now governs employment in Australia including, in addition to statutory unfair dismissal, discrimination and safety laws, a broad range of “general protections” in the Fair Work Act 2009 (Cth) applying to both the maintenance and termination of the employment relationship.28 The related but much narrower question of whether contractual powers and discretions may be limited by good faith and rationality requirements, may have better prospects. In the United Kingdom a series of cases have held that an employer’s discretion in determining bonus and incentive payments is subject to an implied term that the employer will not act irrationally or perversely.29 The same conclusion was reached by the Court of Appeal of NSW in Silverbrook Research Pty Limited v Lindley,30 albeit in that case the term was implied in fact, as a matter of construction, rather than in law as an incident of all contracts of a particular class. Any such term, whether it is sought to be implied in law, as an incident of a class of contracts, or in fact as a term of a particular contract, will however still need to pass a test of necessity. As Barker makes clear, reasonableness will not be enough.

[1998] AC 20.

ibid., at 45.

See cases referred to in Carolyn Sappideen et al, Macken’s Law of Employment (Thomson Reuters, 7th ed, 2011) 163–164.

Barker [2014] HCA 32 at [63]-[66], [100]; also at [30] and [40] per French CJ, Bell and Keane JJ.

ibid., at [18]-[20].

ibid., at [43]; also at [109] per Kiefel J and [119] per Gageler J.

(1995) 185 CLR 410 at 450-452.

10.

[1996] HCA 57; (1996) 186 CLR 71 at 103.

11.

Barker [2014] HCA 32 at [56], [60] and [109].

12.

ibid., at [85].

13.

ibid., at [109].

14.

ibid., at [108].

15.

ibid., at [68]-[69].

16.

ibid., at [72].

17.

ibid., at [56].

18.

ibid., at [116].

19.

ibid., at [40]-[41].

20.

ibid., at [115]-[118].

21.

ibid., at [26]-[27] and [37] per French CJ, Bell & Keane JJ; [61] and [88] per Kiefel J; [119] per Gageler J.

22.

ibid., at [42] per French CJ, Bell & Keane JJ; [104][107] per Kiefel J.

23.

ibid., at [107] referring to Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45; [2002] HCA 5 at [40], [156]; and compare Vodaphone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 at [188]-[189] with Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 at [25].

24.

In Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559; [2008] NSWCA 217 at [30]-[32] Basten JA (Giles JA agreeing) said that whereas the trial judge had found there were separate implied duties of good faith and trust and confidence, it was probably sufficient to identify them as a single obligation. Basten JA cited Lord Nicholls in Eastwood v Magnox at Electric plc [2005] 1 AC 503 at 523 [11], where his Lordship had said the trust and confidence implied term meant, in short, that an employer must treat his employees fairly, responsibly and in good faith. At first instance in Russell, Rothman J, while not seeking to give an exhaustive exposition of the meaning of good faith, had said that in the context of an employment relationship a duty to act in good faith “imports a requirement that the person doing the act exercise prudence, caution and diligence, which would mean due care to avoid or minimise adverse consequences to the other party”: (2007) 69 NSWLR 198; [2007] NSWSC 104 at [117].

25.

See for example Joellen Riley, “‘Mutual Trust and Confidence’ on Trial: At Last” (2014) 36 Sydney Law Review 151 at 160-162

26.

Barker [2014] HCA 32 at [83] per Kiefel J.

27.

ibid., at [39]-[41] per French CJ, Bell & Keane JJ.

NOTES

28.

Fair Work Act 2009 (Cth), Part 3-1.

[2014] HCA 32.

29.

At first instance the trial judge held that a term of mutual trust and confidence was implied into the employment contract and that the bank’s serious failure to comply with the redeployment policy was a breach of the implied term. After finding that Mr Barker had lost a 25% chance of redeployment, the trial judge awarded him damages on that basis: [2012] FCA 942. On appeal a majority of the Full Court of the Federal Court agreed that a term of mutual trust and confidence was implied into the employment contract. The majority did not

See cases referred to in Carolyn Sappideen et al, Macken’s Law of Employment (Thomson Reuters, 7th ed, 2011) at 172-173.

30.

[2010] NSWCA 357 at [5]–[7] (per Allsop P, Beazley JA agreeing); cf Intico (Vic) Pty Ltd v Walmsley [2004] VSCA 90 at [16]-[18] (in which it was held that at common law an employer was not bound to act reasonably in exercising a contractual right to dismiss an employee).

An Interview with Principal Registrar Michael Gething Supreme Court of Western Australia

Interview conducted by Clinton Russell, Barrister, Francis Burt Chambers

It has been a busy first year in the job for the Principal Registrar of the Supreme Court of Western Australia, Michael Gething. It has included beginning the consultation process for amendments to the Supreme Court’s approach to public access to documents, Registrars’ powers and mortgagee possession applications, and a number of revisions to the Consolidated Practice Directions. That’s without mentioning the operational aspects of the role that include acting as a mediator, case management of matters not on the CMC list, presiding as Acting Master and sitting as a Magistrate in the Stirling Gardens Magistrates Court. We thought the time was right to sit down with Principal Registrar Gething and reflect on his time at the District Court, his first year at the Supreme Court and find out what reforms the Supreme Court has planned. Michael Gething is a name that gains instant recognition amongst the legal profession in Western Australia. If you didn’t have dealings with him during his four years as Regional Commissioner for ASIC, then you have probably attended a mediation facilitated by him or appeared before him in court, whether in civil or in crime. If you haven’t, then you will no doubt have heard his name in the same breath as reform at the District Court of Western Australia during the 10 years he spent there as Principal Registrar. How did your experience with ASIC assist you in your role at the District Court? One of the major responsibilities I had as Regional Commissioner was to position the organisation with all of its stakeholders ranging from the Institute of Company Directors, brokers, financial advisors and victims of financial crime. Part of my role at ASIC was to engage with all of these stakeholders and closely consult with them in relation to reforms

36 | Brief March 2015

being considered by ASIC. I became experienced (including through lessons learnt the hard way) in the discipline of stakeholder consultation in running change management reform. I learnt that one of the golden rules is that the greater the change you are going to make, the greater the amount of stakeholder consultation required. What were you most proud of from your time at the District Court? Shortening the time for criminal matters from date of committal to the time of trial When I first joined the court, in criminal matters there was a median delay of 70 weeks from the date of committal to the date of trial. By 2009, we had reduced that time to a consistent 26 weeks and since then it has stayed between 26 weeks and 30 weeks. This was a project driven by Chief Judge Kennedy, with the two people responsible for its implementation being the then Executive Manager Rob Christie (who is now at the Supreme Court) and myself. We started with a blank sheet of paper and worked out how we wanted it to work. We took the pleas days and separated the committals for sentence from the committals for trial. All of the committals for sentence went off to a sentence mention list, which was before either myself or Deputy Registrar Hewitt sitting as Commissioners, which freed up judicial time for trials. It also left a sufficiently small number of matters for a Friday morning list of committals for trial before the Chief Judge. This meant that the Chief Judge could undertake all of the criminal listings, which gave her Honour greater control over the listing of trials. And then, of course, there was a massive collective effort by all within the court; at the time I think I estimated that the judges did 18 months’ worth of work in 12 months to clear the backlog.

Introducing a formal mediation programme While the pre-trial conference programme had been in place for 10 years or so, it was somewhat restricted in terms of the time that could be allocated to any one pre-trial conference. We wanted to introduce the ability to hold half day and full day mediations, so we introduced the formal mediation programme. Almost all of the mediations conducted under this programme were facilitated by the Registrars as there are very few private mediations in the District Court. We initiated a joint training programme with the Supreme Court Registrars, which is still in place today. We took quite a creative approach to training in that we brought in professionals to focus on the different skills and approaches that a mediator needs to have in their toolkit in order to employ the right tools in any particular mediation situation (including psychologists, sales training and adult-education specialists). Of course, every mediation is different and to use a golfing analogy you need to have all of the clubs in your bag so that when you get to your ball and see what type of lie it is in, how far away it is from the hole and the hazards in front of you, you are able to choose the right club for the shot – in the same way, a mediator chooses the right approach to a mediation having regard to the personalities of the parties, the nature of the dispute and the issues between the parties that underlie the dispute (which are not always restricted to legal issues and can centre on emotional or personality issues). We also found that this training assisted us as registrars with our day-to-day case management responsibilities and dealing with parties and their solicitors at case management directions hearings. In general terms when we started the

interview mediation programme approximately six out of every 100 civil cases in the District Court were listed for trial and of those three or four would go to trial. After the implementation of the mediation programme only two or three of the average 100 matters that were listed would go to trial and a lot of cases were resolved earlier in their life cycle. Improving the website The District Court website contains an enormous amount of information conveniently located under the various categories and is very easy to navigate. On the front page it contains links based on users, for example, Victims of Crime, Representing Yourself and Criminal Procedure just to name a few. The circulars to practitioners and practice directions are all on the same page and are listed by topic, which makes finding the information quick and easy. There are also blank templates of all of the forms used by the court that can be used by lawyers and selfrepresented litigants alike. I used the website as my source of precedents, for example, whenever I wanted to make a standard order I would take the text from the website. I encourage practitioners to use the website in that same way; it certainly saved me a lot of time in my role as Principal Registrar. What is on your innovation wish list for the Supreme Court? I would really like to see some improvements to the Supreme Court website. It would be great to have the Consolidated Practice Directions set out by topic with the relevant forms hyperlinked to a word document template allowing for easy completion of court forms. In an ideal world, we would have worked examples of the forms to assist in-person litigants as well. An electronic filing system is definitely on the wish list. We have had a pretty good electronic filing system half built since 2008, however the funding for the completion of this project is not within the power of the court. In circumstances where the Singapore State Courts (second level court) has had an electronic filing system since 2000 and the Federal Court of Australia now has a second generation system, it is an innovation that I would like to be able to deliver in the near future which will make dealing with the court so much more convenient for the profession in Western Australia. The provision of documents and information to the public is currently

being considered in an ongoing consultation process. It is an interesting and important issue because it involves the balancing of transparency and open justice, privacy and the efficient administration of justice. So watch this space. I am also very keen to review how the taxation of legal costs operates. In recent years there has been a focus on trying to avoid having to go through the taxation process through the making of fixed costs order or lump sum costs orders. This is something that I would like to explore in order to make the determination of quantum of legal costs as efficient as it can be, both for the parties involved and the court. What motivated you to apply for the role and how have you found it so far? It was an opportunity to perform a role that I really enjoy in a new and challenging environment. Plus I work with a really great group of people. The role is incredibly diverse and gives me the opportunity to determine interlocutory applications and, sometimes, final determinations as Acting Master, mediate matters and assist the Chief Justice with the strategic management of the court. One day I could be writing a 30 page decision on summary judgment, the next day I could be mediating a matter and the next I could be drafting a proposal about what the court should do in relation to the release of information to the general public. I have really enjoyed the first year, but there is a lot of hard work ahead of us in order to achieve the innovations that we have in mind. Mediation seems to be one of your key areas of interest, how do you see the court’s approach to mediation developing over the next five years? One of the key questions is how do we prepare ourselves and the parties for mediation: is it through the provision of position papers? Is it the provision to the mediator of the without prejudice communications between the parties? Do we have more preliminary conferences? The answer to those questions is, ‘it depends’. Each case is different and calls for a different approach, so increased focus on preliminary conferences and tailoring the approach to the individual matter is probably the most effective reform. The mediation registrar can then help the parties to work out whether position papers will be helpful, or whether private position

“When I first joined the court, in criminal matters there was a median delay of 70 weeks from the date of committal to the date of trial. By 2009, we had reduced that time to a consistent 26 weeks ... ” papers that are only given to the mediation registrar and not the other party should be provided, who should attend the mediation and a myriad of other variables. There are many conversations to be had before we settle on the best way forward, but whatever will assist the mediation registrars to efficiently understand the underlying issues and why they are important to the parties will be a key determinant. How do you see the court’s approach to Case Management developing? The CMC list is working very well. We are considering amendments to the Rules to allow our Registrars to more comprehensively manage the cases in their lists. Strategic conferences work well in the CMC list and this may be a concept we explore in the non-CMC list matters. There is a question as to whether early mediations or strategic conferences would be the better approach.

so members of the profession should always feel comfortable in writing to me to raise any concerns or provide feedback. Given your experience hearing applications in chambers what advice do you have for young lawyers who are looking to build their advocacy skills? The vast majority of young lawyers who come to court are very well prepared. This is a critical element to appearing in court and is really one of the base requirements.

How should practitioners give feedback to the court on procedural reform? I sit on the Courts, Education and Criminal Law committees of the Law Society and there is often practitioner feedback from those on the committee, or from the profession more generally, which is steered through those committees. However, I am always keen to hear from the profession on what is working well and what can be improved,

38 | Brief March 2015

In terms of what to focus on for an application, most applications, especially applications where the court has a discretion, will turn on a couple of facts that pivot the matter your way. You need to be able to tell the court what those key facts are and you should flag them early in your oral submissions. As to authorities, donâ&#x20AC;&#x2122;t just roll out the traditional authorities. Rather, check for most recent High Court of Australia authority and the most recent Supreme Court of Western Australia Court of Appeal authority. That is usually sufficient.

What advice do you have for young lawyers on career progression? Do everything with excellence, no matter how small - a letter, a short appearance, whatever it is do it with excellence. Because in everything you do you are building your reputation. Build relationships with the people you work with and the people you deal with. Focus on what you can do for them not what is in it for you. Donâ&#x20AC;&#x2122;t burn relationships to do a deal or get an outcome. Perth is a small place and it will catch up with you. Leave a trail of built relationships rather than a trail of burnt relationships. Build the organisation that you work in, leave it better than when you got there. How do you maintain a work-life balance? The key is my Christian faith. If I follow the example of Jesus and put my faith, family and relationships first, everything else comes into balance. It also helps that I have an awesome wife and three wonderful children.

WA PUBLIC PRIVATE PARTNERSHIPS CONFERENCE Friday, 20 March 2015 8.30am – 6.30pm Duxton Hotel, St Georges Tce, Perth, WA Public Private Partnerships (PPPs) are an important component in delivering Australia’s infrastructure challenges. Partnerships between public sector and private economy participants create opportunities for funding, development and the long-term maintenance of infrastructure projects. Don’t miss out on this select gathering of expert minds from financial, building and infrastructure, legal, project management, state government and other organisations, to look at Public Private Partnerships from many different perspectives.

PROGRAMME EVENt REGIStRAtION WELCOME INtRODUCtION

8.00AM – 8.30AM 8.30AM – 8.35AM

Pamela Hass, Principal Counsel Legal and Commercial Strategy, Department of State Development SESSION 1

8.35AM – 9.05AM

KEYNOtE ADDRESS Public Private Partnerships in Western Australia Hon Dr Mike Nahan MLA, Treasurer; Minister for Energy; Citizenship and Multicultural Interests SESSION 2

9.05AM – 10.15AM

Chaired by Su Lloyd, Principal Legal Officer, Office of the Information Commissioner

SESSION 4 CONt. Achieving Contract and Financial Close Melanie Cave, Partner, Herbert Smith Freehills Andrew McLean, Senior Associate, Herbert Smith Freehills Resourcing and Managing a PPP John Tondut, Principal Project Director, Department of Treasury Western Australia LUNCH

12.55PM – 1.35PM

SESSION 5

1.35PM – 2.35PM

Chaired by David Nancarrow, Partner, DLA Piper Perth the new Perth Stadium Ronnie Hurst, Project Director, Department of Sport and Recreation, The new Perth Stadium

Fundamentals of PPPs

Mundaring Weir Water Supply

Melanie Cave, Partner, Herbert Smith Freehills Nicholas Egan, Deputy State Solicitor, State Solicitor’s Office Zac Kerr, Senior Associate, Herbert Smith Freehills

Ross Mignacca, Manager Infrastructure Markets, Water Corporation SESSION 6

MORNING tEA

10.15AM – 10.35AM

SESSION 3

10.35AM – 11.55AM

Chaired by Toby Browne-Cooper, Legal Counsel, Brookfield Multiplex PPP Drivers: the Bank

2.35PM – 3.35PM

Chaired by Nick Heggart, Director, Head of Energy and Resources, Greenwoods & Herbert Smith Freehills Securitisation and tax Issues Rhys Jewell, Partner, Corrs Chambers Westgarth Vaughan Lindfield, Partner - Taxation Advisory, Ernst & Young

Michelle Sichlau, Project & Export Finance, ANZ PPP Drivers: the Building Company

AFtERNOON tEA

3.35PM – 3.55PM

John Flecker, CEO Australasia, Brookfield Multiplex

SESSION 7

3.55PM – 5.25PM

PPP Drivers: Facility Management Bill Cotter, Fiona Stanley Hospital Contract Director, Serco

Chaired by Richard Mann, Executive Director, Strategic Projects, Department of Treasury Western Australia

PPP Drivers: the Sponsor and Equity Investor

Keeping it All on track – Problems and Solutions

Michael Palassis, Executive Director, Paxon Group

Panel Discussion

SESSION 4

11.55AM – 12.55PM

Chaired by Lee Rossetto, Partner, Minter Ellison tender Processes and Documentation Nicholas Egan, Deputy State Solicitor, State Solicitor’s Office

Nicholas Egan, Deputy State Solicitor, State Solicitor’s Office Ben Farnsworth, Partner, Allens Katherine Vines, Partner, King & Wood Mallesons FINAL CLOSING NEtWORKING DRINKS

5.25PM 5.30PM – 6.30PM

Self-determination for the Noongar People – Potential lessons from Europe? Bertus de Villiers1

The Noongar People of Western Australia are close to reaching a comprehensive settlement with the government of Western Australia of their native title claims. The settlement will involve a massive area that covers the south-west of the state from Jurien Bay, to Merredin, to Ravensthorpe and along the coast to Albany, Bunbury and Perth.2 If enacted by the WA Parliament, the Noongar Recognition Bill3 would be the most comprehensive statutory settlement of native title claims in the state (Noongar Settlement). The Noongar Settlement, which will extinguish native title for the entire area to which it would apply, includes a package of benefits that involves recognition of traditional land ownership, annual payments by the state government, joint management of conservation areas, access to Crown land, a housing and land package, employment opportunities and support for Noongar commercial activities.4 The relevant aspect of the Noongar Settlement for purposes of this article are the legal corporations that will be created to represent the interests of the Noongar People. The basic governance structure for the entire area will comprise six Noongar Regional Corporations (Noongar Corporations) supported by a Central Services Corporation (responsible to provide services and advice to the Corporations) and the Noongar Corporations Committee (responsible to coordinate activities of the Corporations). The outcome of this process is that the Noongar People, in effect, will obtain a corporate identity which is sanctioned by law. The establishment of corporate entities for the Noongar people may, potentially, provide a future basis for those Corporations to become involved in other areas of government and administration – read self-determination at a level not previously seen in Western Australia or Australia. This article seeks to reflect, on the basis of recent experiences in Europe, on how the Noongar Corporations may in future 40 | Brief March 2015

become vehicles for self-government by the Noongar People. In recent years major advances have been made in Europe to give cultural groups greater involvement in the management and control of matters that affect their lands, cultures and traditions. It is particularly in the case of culture groups that lack an area in which they dominate, that “cultural autonomy” has opened opportunities for self-government. These experiences may be particularly relevant to the Noongar People in light of the Noongar Settlement. CULTURAL AUTONOMY – A NEW FRONTIER BEING OPENED Constitutional law generally assumes that the powers of government are exercised on a territorial basis. As a rule, governmental powers are distributed on the basis of territorial jurisdiction, for example by way of decentralisation to local and regional (state) governments. The territorial allocation of powers underlies the principles of decentralisation and federalism. Many culture groups are, however, minorities at the local and regional levels of government which means they do not have effective access to power, they have limited ability to influence policy and they generally are restricted in making decisions that affect their culture, laws and customs. An idea that has its modern-day origin in the early 1900’s from the instability that faced central Europe after the collapse of the Austro-Hungarian empire, is for cultural minorities to be clothed with autonomy or self-determination on a non-territorial basis. This is generally referred to as “cultural autonomy”. Cultural autonomy on a non-territorial basis was seen as an appropriate way to give some form of self-government to culture groups that live intermingled in the same country. Prior to the formation of the modern nation states of contemporary Europe, questions arose about what should constitute the basis of the modern state. Two leading Austro-Marxist ideologists,

Karl Renner and Otto Bauer, contended that the modern nation comprised of culture groups who lived intermingled, and that those groups can, within the same state, be given the status of selfgoverning, corporate entities each with their own powers and functions.5 In 1917 the concept of cultural autonomy was explained as follows: Each national group would create a separate movement. All citizens belonging to a given national group would join a special organisation that would hold cultural assemblies in each region and a general cultural assembly for the whole country. The assemblies would be given financial powers of their own: either each national group would be entitled to raise taxes on its members, or the state would allocate a proportion of its overall budget to each of them. Every citizen of the state would belong to one of the national groups, but the question of which national movement to join would be a matter of personal choice and no authority would have any control over his decision. The national movements would be subject to the general legislation of the state, but in their own areas of responsibility they would be autonomous and none of them would have the right to interfere in the affairs of the others.6 Although the modern nation state in western Europe is not based on the principles of Bauer and Renner, the challenges in nation building that arose in central and eastern Europe after the fall of the Berlin wall have again placed cultural autonomy for groups that share the same nation state, on the agenda. Countries with highly culturally diverse communities such as Estonia, Slovakia, Russia and Hungary are experimenting with various aspects of cultural autonomy so as to retain their national unity while at the same time recognising the self-government rights of cultural groups. The Noongar Settlement potentially opens the door for the Noongar

Corporations to become involved, in years to come, in policy formulation, advice, decision-making and administration of policy in a manner not previously seen in Australia. Cultural autonomy has become a reality and the Noongar People may benefit from the experiences gained in Europe. PRACTICAL EXAMPLES OF CULTURAL AUTONOMY The following are practical examples of

how the Noongar Corporations could in future become involved in different forms of cultural autonomy based on a few European experiences: Noongar Corporations as special nongovernmental organisations Under the Noongar Recognition Bill the Noongar Corporations have the status of a special category of non-governmental organisation that is recognised by the Settlement Package. This separates the

Noongar Corporations from ordinary Aboriginal corporations that promote the interests of their members. The Noongar Corporations have a public governance function that would subject those Corporations to higher levels of responsibility and accountability than is the case with ordinary associations. The Noongar Corporations are indeed a special category of non-governmental organisation. The Russian Federation has enacted

Agreement Area Map

Map showing the approximate area covered by the proposed Settlement

legislation according to which culture communities can register nongovernmental organisations (NGOs) for purposes of protecting and promoting the culture, language and traditions of the specific community.7 The cultural NGOs have special status and are distinguishable from ordinary NGOs. The jurisdiction of the cultural NGOs is determined by the service they render to their members, which means that only persons who attend the activities of a cultural NGO are affected by it.8 The cultural NGOs in Russia are entitled to government grants for the fulfilment of their tasks. The national or state governments may also delegate the administration of government programmes to the cultural NGOs for purposes of implementation. Government agencies may also consult with cultural NGOs about policies or legislation that may affect a specific cultural community. The rights of the cultural NGOs in Russia include the following: to receive financial and other support from government agencies; to make representations to legislative and executive organs of government in regard to matters that affect the community; to preserve and enrich their culture and heritage; to practise and follow their customs, folklore and practises; to create and manage educational institutions; to participate in international organisations; and to maintain contacts with citizens and non-governmental organisations of other states.9 The Noongar Corporations could, in addition to the activities foreshadowed in the Settlement Package, individually and collectively receive additional grants from government and the private sector to perform particular functions; lobby local, state and national governments about matters that affect the Noongar people; and become the mechanisms through which NGO activities involving Noongar People are coordinated. The Noongar Corporations may become de facto makers of policy about cultural, social and economic factors relevant to the Noongar People. Noongar Corporations as service providers The Noongar Corporations could become recipients of privatised functions by which the commonwealth, state or local government agencies enter into service delivery contracts whereby the Corporations deliver certain government services to the Noongar People on behalf of the respective levels of government. In Germany, the Danish cultural minority 42 | Brief March 2015

is the recipient of such a privatisation arrangement in regard to Danish schools. Members of the Danish community may elect to attend Danish-run schools without such individuals being ‘classified’ in any way as being members of the Danish community for any other purpose. The Danish School Association, an NGO established and managed by the Danish community, manages several schools for the Danish community. The schools are jointly funded by the governments of Germany and Denmark; teaching occurs in Danish and German; and the examinations applied are recognised in both countries.10 The arrangements are limited to education and do not extend to other cultural spheres of the Danish community. The Danish School Association has input into the curriculum that is taught at its schools. Danishspeaking persons are under no obligation to attend the schools managed by the Danish School Association. The Constitution of Slovenia provides that cultural communities are entitled to establish “autonomous organizations in order to give effect to their rights” and, in addition, that the State may authorize these autonomous organisations to undertake State functions that normally would be within the responsibility of the state.11 12 The Self-Governing Ethnic Communities, as they are called, are “public legal entities,”13 which means they have a different status from mere private NGOs that attend to the interests of their members. As a “public legal entity” the Communities have the status of a ‘government.’ Their decisions are legally enforceable under public law and not as a mere contract under private law.14 The Noongar Corporations could, in addition to the activities foreshadowed in the Settlement Package, individually and collectively become agents of commonwealth, state and local governments to implement and administer policy programmes of relevance to the Noongar people. In areas such as health, education, tourism, land management, social services and care of the elderly, the Noongar Corporations may become essential partners to the respective commonwealth, state and local governments. Noongar Corporations as advisory bodies The Noongar Corporations can be given advisory powers with the effect that it may have the right to comment and be consulted in regard to any legislation or policy measures that affect the interests of the Noongar People.

The Sami Parliament in Finland is popularly elected by members of the Sami indigenous community and its business is administrated by an executive. Although the Sami Parliament does not have general legislative powers, it nevertheless makes decisions on the allocation of government grants; it submits recommendations to the national Parliament about policies that affect the Sami people; and it administers Sami cultural affairs, including aspect of education. The members of the Sami community must register on the Sami voters roll to qualify to participate in elections for the Sami assembly. Finnish legislation establishes the legal basis upon which the Sami are identified. The first requirements is ‘self-identification’ which entails the subjective expressions and intentions of an individual to associate with the Sami people. The second requirements is more objective, whereby the closeness of a person to the Sami community is dependent on whether one or both of his/her parents spoke the Sami language or one or both parents learned Sami as their first language.15 The Noongar Corporations could, in addition to the activities foreshadowed in the Settlement Package, individually and collectively become very important role players in policy formulation and advice on behalf of the Noongar People at all levels of government. Noongar Corporations as organs of government The Noongar Corporations may take the form of an organ of government which means it exercises public law, legislative powers like any other tier of government. The jurisdiction of a Corporation would in such a case attach to Noongar persons who attends services and participate in the activities of the Corporation. The legal status and enforceability of a law made by a cultural council would be the same as the enforceability of a law or bylaw made by a local government.16 In Hungary, Belgium and Estonia cultural councils have been established with powers consistent to those of a parliament with an executive arm responsible for daily issues of government and administration. The Estonian culture groups can develop their own institutions provided that the election for Cultural Councils complies with minimum standards as set out in the Electoral Act. The Russian, Jewish, German and Swedish, automatically qualify for cultural autonomy should they seek it.17 Other culture groups who may wish to quality for cultural

autonomy must demonstrate that they have at least 3000 members before they can apply for autonomy.18 Autonomy in Estonia entails that a culture group may register a legal person,19 a cultural council, to make decisions on behalf of the group in areas such as education, language, culture, symbols and place names. The essence of the autonomy arrangements is recognition of the right of national minorities to protect, promote and preserve their identity, language and culture.20 “Cultural autonomy” is defined as “the right of individuals belonging to a national minority to establish cultural autonomy in order to achieve the cultural rights given to them by the constitution.”21 In Belgium, and more particularly in Brussels the capital city, provision is made for the two main culture groups, the French and Dutch, to establish a culture council for Brussels.22 The powers that form part of the cultural autonomy of the two communities are referred to as ‘personal’ matters and include aspects of education, language, culture, health care and welfare.23 The services arising from these powers are provided in the language of the specific community although, as mentioned above, any individual may attend those services. The exercise of cultural autonomy is subject to the provisions of the Constitution of Belgium. In Hungary the Constitution recognises 13 cultural communities for purposes of self-government.24 Those 13 communities have an automatic right to self-government, but no individual is obliged to attend the services of a specific community or to register to vote for community elections. Those individuals who wish to vote in community elections, must register as a member of the community voters roll. Registration as a voter for community

elections does not disenfranchise a person to vote in national or local elections.25 The Noongar Corporations could, in addition to the activities foreshadowed in the Settlement Package, individually and collectively be clothed with formal powers of government which functions in the sphere of public law in as same way as a local government.

in the Russian Federation in 2007 in regard to the protection of minorities’ European Yearbook of Minority Issues (6) 35. 8.

B De Villiers (2012) ‘Protecting minorities on a nonterritorial basis – recent international developments’ Beijing Law Review 3(4) 170-183

Article 4 Russian Amended Federal Law on National and Cultural Autonomy, No 58-FZ, signed 29 June 2004.

10.

J A Frowein and R Bank, ‘The Participation of Minorities in Decision-Making Processes’ (2001) 61 Heidelberg Journal of International Law 24.

11.

Article 64(3) of the Constitution of Slovenia at http:// www.pf.uni-mb.si/datoteke/janja/Angleska%20PT/ anglesko-slovenska_urs.pdf accessed 20 January 2014.

12.

Article 145 of the Constitution of Slovenia.

13.

Article 2 Law on Self-Governing Ethnic Communities Official Gazette no73/93 as amended

14.

Article 64 of the Constitution of Slovenia.

15.

Finish Official Gazette SSK 17/7/1995/974.

16.

TH Malloy, ‘The Lund recommendations and non-territorial arrangements: progressive de-territorialization of minority politics’ (2009) International Journal on Minority and Group Rights (16) 665-679.

17.

Article 2(2) of the National Minorities Cultural Autonomy Act 1996 (Estonian Act on Cultural Minorities) at http://www.regione.taa.it/biblioteca/ minoranze/estonia2.pdf accessed on 10 January 2014.

18.

Article 2(2) of the Estonian Act on Cultural Autonomy for National Minorities 26 October 1993.

19.

Article 26 of the Estonian Act on Cultural Minorities determines as follows: “Institutions of cultural autonomy are independent legal persons, may own real property and are liable for their financial obligations.”

20.

Article 5 of the Estonian Act on Cultural Minorities.

21.

Article 2(1) of the Estonian Act on Cultural Minorities.

22.

K Deschouwer (2012) The politics of Belgium: governing a divided society Palgrave Macmillan: London.

23.

Article 127 of the Constitution of Belgium at http:// www.dekamer.be/kvvcr/pdf_sections/publications/ constitution/grondwetEN.pdf accessed on 15 December 2013.

24.

Article 2 Law on Rights of National and Ethnic Minorities, Act LXXVII of 1996. http://www.minelres. lv/NationalLegislation/Hungary/Hungary_Minorities_ English.htm and the Act CLXXIX of 2011 on the Rights of Minorities (Hungarian Act on the Rights of Nationalities).

25.

Article 28 Hungarian Act on Rights of Nationalities.

SUMMARY This article has shown that the soon to be established Noongar Corporations may afford the Noongar people with more scope for self-government than has ever been on offer in Western Australia. The self-government may take many forms and range from typical functions as an NGO, to advisory powers, to powers of an agent, to fully fledged organs of government. The recent experiences in constitutional law in Europe show that cultural selfdetermination is theoretically sound and practically possible. Western Australia may soon be at the forefront of giving new context and meaning to the Aboriginal self-determination and cultural decision-making. NOTES

PhD (Constitutional Law); Honorary Fellow of the Law School University of Western Australia. The views expressed in this article are those of the author.

See enclosed map of the area.

http://www.parliament.wa.gov.au/publications/ tabledpapers.nsf/displaypaper/3911396a770c9d79 3b4ffb8d48257c8c00176c86/$file/1396.pdf.

For a quick guide to a summary of the settlement package refer to http://www.noongar.org.au/ images/pdf/forms/Final%20Quick%20Web%20 Version%20edited%20for%20Gov_v2.pdf.

K Renner Staat und Nation (1899) reprinted as K Renner State and Nation in E Nimni (ed) National Cultural Autonomy and its Contemporary Critics (2005) 13-40.

Vladimir Medem quoted in H Minczeles Histoire générale du Bund (1995) 279-280.

B Bowring (2006/7) ‘Legal and policy developments

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book review

Book Review Douglas and Jones’s Administrative Law, 7th Edition Review by Adam Sharpe, Barrister, Francis Burt Chambers

Published by the Federation Press, this is the seventh edition of this textbook on Australian administrative law, which follows the familiar ‘Cases and Materials’ format. The first edition was published in 1993 by Roger Douglas and Melinda Jones. Professor Michael Head has joined Professor Douglas as co-author for this edition. As suggested by its format, this textbook is primarily aimed at educating law students. For that purpose, it provides a comprehensive and thorough treatment of the system and principles of administrative law in Australia. For practitioners involved in judicial review applications, the first port of call is more likely to be a text more specifically directed to that subject matter, such as Aronson and Groves, Judicial Review of Administrative Action, but Douglas and Head’s work still has much to offer to practitioners. Given the frequency with which the High Court hands down decisions concerning administrative law, it is important and necessary for administrative law texts to be regularly reviewed to ensure their currency. For this reason, it is to be welcomed that this is the seventh edition of this textbook in a little over two decades.

One area of Australian administrative law that has seen rapid development is that concerning jurisdictional error, which has now become deeply intertwined with Australian constitutional law (see, for example, Kirk v Industrial Court of New South Wales (2010) 239 CLR 531). It is noteworthy that the first edition of Douglas and Jones’ Administrative Law included extracts from two English decisions, one being Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, in its exposition of jurisdictional error. The current edition sets out passages from the High Court’s landmark decision of Craig v South Australia (1995) 184 CLR 163, which rejected the English approach, and its more recent decision of New South Wales v Kable (2013) 298 ALR 144. Some of the High Court’s administrative law decisions no doubt pose challenges for textbook writers when their implications for the development of the law are still to be fully realised. The relatively recent decision of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 suggests, as Head and Douglas put it (at 470), a “more liberal approach” to unreasonableness as a ground of review. The text helpfully sets out an extract from the English Court

of Appeals’ foundational decision of Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223, which is analysed in detail in Li. It is not yet clear whether Li marks the beginning of a broader role for unreasonableness review, is limited to failures relating to procedural fairness or is simply a “rare case” (see Gageler J at [113]). Given this, the ‘light-touch’ approach taken to Li is, with respect, entirely appropriate. Students and practitioners alike will find that this text, with its clear commentary and thoughtful insights, assists them to deepen their understanding of this complex and constantly developing area of law.

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case notes

Family Law Case Notes Robert Glade-Wright, Former barrister and accredited family law specialist Property – Husband’s $3m inheritance post-separation – Global approach – Wife’s superior contributions during and since cohabitation In Singerson & Joans [2014] FamCAFC 238 (10 December 2014) the Full Court (Bryant CJ, Ainslie-Wallace & Crisford JJ) considered a 15 year marriage where the husband inherited $3 million (value at trial) soon after the parties’ separation. Total assets were $7.4 million. Both parties appealed Jordan AJ’s property order, seeking a re-exercise of discretion by the Full Court. There were two children. Since 1999 the husband had been a retrenched valuer who suffered depression and had ‘sporadic’ employment. The wife was the children’s primary carer and a pharmacist earning $250,000 per annum after tax (paras 10-14). In allowing the appeal, the Full Court said (paras 65-66) that “his Honour misled himself … in identifying only the four years between separation and trial as being the appropriate time upon which to assess contributions to the inheritance rather than across their 15 year relationship”. The court found that the wife’s contributions during and since cohabitation were “significantly greater … to the property acquired prior to separation” (para 94), holding “[d]espite the timing of the receipt of the inheritance” that “over this long marriage a global approach is appropriate” (para 96). Contributions were assessed as 52.5 per cent in favour of the husband (para 97). No further adjustment was made under s75(2). Property – Case dismissed – Not just and equitable to make an order – Stanford applied – Parties’ informal agreement to keep assets separate In Fielding & Nichol [2014] FCWA 77 (28 November 2014) Thackray CJ considered the application by Mr Fielding (‘the husband’) for an equal property division when the parties’ 12 year de facto relationship ended. Ms Nichol (‘the wife’) sought dismissal of the application so that “each party [kept] the real estate they owned at the start of the relationship” (para 3). The applicant had a block of land. He was 74, the wife 66, both were retired. They lived together in the wife’s home. Total assets were worth $465,254. The court said (para 17):

46 | Brief March 2015

In arguing it would not be just and equitable to make any order altering property interests, counsel for the wife drew on … paragraph 42 of Stanford v Stanford [[2012] HCA 52] … argu[ing] that no ‘express or implicit assumptions’ of the parties about their property were brought to an end by the termination of their relationship. On the contrary, their relationship had been conducted on the basis that neither would ever have any interest in the property of the other. Thackray CJ observed that “the husband never executed a will in favour of the wife (para 22); that work by him on the wife’s property made no “real difference” to its value (para 24); and that he sought an equal property division “because he devoted 12 years of his life to the relationship and … he had anticipated the parties would live out the rest of their lives together” (para 25). After examining other authorities (paras 30-50), the court held (paras 51-52) that “it would not be just and equitable to make any order altering property interests” given the parties’ agreement to keep their financial affairs separate; that their assets were “kept entirely separate”; “the absence of any evidence to suggest the husband refrained from accumulating other assets”; that (with a minor exception) neither made any provision for the other in their wills; the insignificance of the husband’s work on the wife’s property; his (and his son’s) rent-free accommodation; the ages and health of both parties; and that each party had “a significant asset which could be realised to meet needs”. The husband’s application was dismissed. Children – Coercive order requiring mother to relocate is set aside In Adamson [2014] FamCAFC 232 (3 December 2014) the Full Court (AinslieWallace, Murphy and Kent JJ) heard the appeal of the mother of a three year old child (‘X’) from Judge Altobelli’s order requiring the mother to relocate. The child was 12 months old when her parents separated in 2011, the mother relocating from Sydney to Town S (200 kilometres north of Sydney) after the father assaulted her (paras 17-18). The father remained in Sydney but also relocated during the trial in 2013 to Town C on the Central Coast (NSW) (140 kilometres or a two hour drive

from Town S). The dispute was the child’s time with the father and a coercive order made on the application of the father (notwithstanding that the mother and child had been living in Town S for two and a half years) that the mother relocate to within 20 kilometres of the father’s new home by January 2015. The Full Court (paras 3541) examined the authorities, in particular Sampson & Hartnett (No.10) (2007) FLC 93350 as to the application of s65DAA FLA where the Full Court said: To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. The Full Court said (paras 44-45) that “the trial judge found … even on the mother’s proposal, that she and the child continue living in Town S whilst the father remained in Town C with the child spending time with the father as proposed by the mother, the child would continue to have a meaningful relationship with the father” so that “it could not be said that the coercive order was founded upon any identified need, in the child’s best interests, essential to establishing or maintaining the child’s meaningful relationship with the father”. The court also observed (para 47) that “the trial judge found that it was common to the proposals of both parents that it was in the child’s best interests that she should continue living with the mother” and that “it was not the father’s proposal that the child should live with him even if the mother did not herself relocate”. The Full Court concluded (para 53) that the trial judge’s findings did “not sit conformably with a conclusion that rare or exceptional circumstances existed … such as to justify a legitimate exercise of discretion to make the coercive order”. The appeal was allowed, the coercive order discharged, the order as to the father’s time with the child varied and the case otherwise remitted for re-hearing. Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, loose-leaf and online subscription service. www. thefamilylawbook.com.au. He is assisted by family lawyer Craig Nicol.

case notes

Thomas Hurley Case Notes Thomas Hurley, Barrister, Melbourne, For the Law Council of Australia and its Constituents FEDERAL COURT

Corporations law