Brief October 2016

VOLUME 43 | NUMBER 9 | OCTOBER 2016

CREATIVITY, COMMUNITY AND LAW FIRE PROOFING OURSELVES AGAINST BURNING OUT FROM OUR CLIENTS WHAT CRISIS? HOW PLANNING CAN ALLEVIATE THE PAIN OF WORKPLACE TRAUMAS

Contents Volume 43 | Number 9 | October 2016

18 06

The multi-cultural lawyer

08

Gala Dinner Event Wrap

10

The State of Justice: A Perspective After 10 Years as Chief Justice of Western Australia

16

Creativity, Community and Law

18

Wellness and Mental Health

24

Speech from Ceremonial Welcome to Supreme Court for the Hon Justice Banks-Smith

25

Why volunteer?

26

Disclosure of mental illness and implications for your practising certificate

28

Speech by Chief Judge Stephen Thackray on the occasion of the 40th Anniversary of the Family Court of Western Australia

32

Fire Proofing Ourselves against Burning Out from our Clients

34

'Best practice' mental health initiatives in commercial legal practices

36

What crisis? How planning can alleviate the pain of workplace traumas

38

Changes to the Office of State Revenue's Assessment Practices

43

So you want to a join a board?

44

2016 Practical Advocacy Weekend

45

Book Review: Judicial Independence in Australia – Contemporary challenges, future directions

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: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.).

The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia.

Published monthly (except January) Advertising enquiries to Manager Marketing and Communications Moira McKechnie Tel: (08) 9324 8650 Email: mmckechnie@lawsocietywa.asn.au Communications and Media Officer Andrew MacNiven Communications and Design Officer Brett Syme RRP $15.00 incl GST. Printed by Scott Print

08

COVER Health and Wellbeing Edition REGULARS 02 President's Report 03 Your voice at work 04 Editor's Opinion 46 Family Law Case Notes 47 Young Lawyers Case Notes 48 Law Council Update 49 Pam Sawyer 50 Professional Announcements 50 Classifieds 51 New Members 52 Events Calendar

Editor Jason MacLaurin

President Elizabeth Needham

Deputy Editors Andrew Cameron, Moira Taylor

Senior Vice President Alain Musikanth

Editorial Committee Gregory Boyle, Andrew Cameron, Rebecca Collins, Robert French, Catherine Graville, Melissa Koo, Jason MacLaurin, Alain Musikanth, Maureen O'Connell, Tom Porter, Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Moira Taylor

Vice President Hayley Cormann

Proofreader Sonia Chee 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 ISSN 0312 5831 Submission of articles Contributions to Brief are always welcome.

For further details, please contact communicationsofficer@lawsocietywa.asn.au

Treasurer Nathan Ebbs Ordinary Members Alison Aldrich, Jocelyne Boujos, Tara Connolly, Nathan Ebbs, Adam Ebell, Nicholas Ellery, Catherine Fletcher, Rebecca Lee, Greg McIntyre SC, Marshall McKenna, Denis McLeod Junior Members Saran Bavich, Sophie Ecker, Jodie Moffat Country Member Brooke Sojan Chief Executive Officer David Price

01

President's Report Elizabeth Needham President, the Law Society of Western Australia

HEALTH AND WELLBEING Mental Health Week falls between 8 and 15 October, with 'Act-Belong-Commit' and a focus on suicide prevention as the official theme, so it is appropriate that this issue of Brief focuses on health and wellbeing.

Members of the legal profession are more likely than many other professional groups to be affected by the pressures that arise in the workplace or in family life. A significant body of research evidences that legal practitioners and law students are at significant risk of depression, with competitive work cultures and a focus on perfectionism being just some of the contributing factors. Whether our profession attracts people who have a predilection for depression or whether our professional culture is causative is not clear, and I would suggest not important. Either way there are elements of our professional culture that can exacerbate or act as a trigger for depression and our focus needs to be on these concerns.

In 2011, the Society produced its Report on Psychological Distress and Depression in the Legal Profession, through which we sought to understand and formulate responses to mental health and wellbeing issues in our profession. Following that Report, the Society's Mental Health and Wellbeing Committee was established and has since assisted in the implementation of that Report's recommendations.

In 2015 the Council asked the Society's Mental Health and Wellbeing Committee to undertake a review of the recommendations in the 2011 Report considering those recommendations current relevance and effectiveness. Other work being done around the country was also considered. It appears that we have done much to raise awareness of the issues and help to reduce the unnecessary stigma associated with mental health issues. However, all of the available evidence shows that the prevalence of mental health and wellbeing issues remains high and these are the focus of the new recommendations, which the Society will now focus on. These will again be reviewed in 2020.

You can find these under the 'Resources and Guidelines' section of the Society's website.

For further research into wellbeing in the legal profession, please see Causes and Consequences of Work Related Psychosocial Risk Exposure by Dr Rebecca Michalak, which can be found online at psychsafeconsulting. com.au.

Mental Health Week is a pertinent reminder that we can all contribute to a more positive atmosphere within our profession and the wider

02 | BRIEF OCTOBER 2016

community. We know that words matter – they are our daily currency – and it costs us nothing to be kind and respectful in our dealings with other people, be they clients or colleagues.

LAWCARE WA LawCare WA provides a range of initiatives by the Society to support the mental health and wellbeing of our members. The service includes professional, confidential and free counselling and information services.

LawCare WA is provided by Optum, an international organisation with their main focus on employment wellbeing. As a member of the Society you have complimentary access to a comprehensive range of online resources and information. You can find out more at lawsocietywa.asn.au/lawcare. Remember, members of the Society are eligible to access a range of services through LawCare WA including: • Face-to-Face Counselling • Telephone Counselling • Mortgage@ssist • Finance@ssist • Ask the Psychologist • Email@ssist • Manager Hotline Online SOCIETY'S RESPONSE TO WLWA 20TH ANNIVERSARY REVIEW OF 1994 CHIEF JUSTICE'S GENDER BIAS TASKFORCE REVIEW In September 2014, Women Lawyers of Western Australia (WLWA) issued the 20th Anniversary Review of the 1994 Report of the Chief Justice's Taskforce on Gender Bias, which contained a number of recommendations that look to the Society to either implement or help the profession in doing so.

In October 2014, the Society’s Council resolved to prepare a Directions Paper in response.

The Directions Paper has now been finalised and approved by the Society’s Council for implementation. For further information, please refer to the Your Voice at Work section of Brief directly opposite this President's Report.

GALA DINNER Thank you to everyone who attended the Gala Dinner on Friday, 9 September, hosted by the Society and the Western Australian Bar Association. We were joined by almost 500 guests, including representatives from the Law Council of Australia, who were in Perth for the quarterly directors meetings over Friday, 9 September and Saturday, 10 September.

The Hon Wayne Martin AC presented a very engaging and enjoyable address reflecting

on his 10 years of service as Chief Justice of Western Australia. You will find the speech reproduced in full in this issue of Brief.

A comprehensive review of the Gala Dinner and photos of the night are also included in this issue. Please visit facebook.com/ LawSocietyWA for more photos of the evening's festivities.

COUNCIL ELECTIONS Nominations for election to the Society's 2017 Council will open on 4 October 2016. Nomination forms will be sent out electronically, with nominations closing on 20 October 2016.

I encourage any member who is considering putting their name forward for the Society's Council to please do so. The Society benefits greatly from being able to draw upon the skill and knowledge of a Council that is representative of as broad a cross-section of the legal profession as possible.

SOCIETY CLUB Please join us on Thursday, 20 October 2016 from 5.30pm for Society Club, the Society's regular social and networking event, which is complimentary for members. For the first time, the event will be held in the elegant surrounds of The Penthouse at The Western Australian Club.

October's Society Club is hosted by the Society's Indigenous Legal Issues Committee.

The Committee was formed with the purpose of encouraging, supporting and advancing Aboriginal lawyers, law graduates and law students, as well as communicating with the legal profession and broader community on issues of importance to Aboriginal and Torres Strait Islander peoples.

This is an excellent opportunity to meet members of the Committee, catch up with colleagues and make new connections whilst enjoying an evening of drinks and canapés.

ANNUAL GENERAL MEETING – 25 OCTOBER A reminder that the Society's Annual General Meeting is scheduled to take place on Tuesday, 25 October 2016, commencing at 5.15pm, at the offices of Herbert Smith Freehills, Level 36, QV1 Building, 250 St Georges Terrace, Perth.

END OF YEAR CELEBRATION – SAVE THE DATE – 7 DECEMBER Be sure to keep the evening of Wednesday, 7 December free for the Society's End of Year Celebration at Lamont's Bishop's House, Perth.

Further details will be available in due course.

Your voice at work A snapshot of recent Society initiatives

THE LAW SOCIETY'S RESPONSE TO THE WOMEN LAWYERS OF WESTERN AUSTRALIA'S 20TH ANNIVERSARY REVIEW OF THE 1994 CHIEF JUSTICE'S GENDER BIAS TASKFORCE REVIEW Women Lawyers of Western Australia (WLWA) delivered its 20th Anniversary Review of the 1994 Report of the Chief Justice's Taskforce on Gender Bias in September 2014. The WLWA Review contained a number of recommendations for action by the Law Society.

The Law Society's Council resolved to prepare a Directions Paper in response to the WLWA Review in October 2014.

The Directions Paper has now been finalised and approved by the Law Society's Council.

The Directions Paper identifies where there are opportunities between what the Law Society is currently doing and the recommendations in the WLWA Review. The Directions Paper makes practical proposals for the Law Society to satisfy these recommendations.

Some of the key recommendations in the Directions Paper include: •

•

the development of a Gender Action Plan to timetable and focus the Law Society's efforts to address gender diversity in the legal profession; adding further resources to the Law Society's webpages on 'Women Lawyers' and 'Gender Diversity' to assist both members and others to progress gender diversity initiatives;

•

hosting a summit or day-long forum to raise awareness and promote discussion within the legal profession of key features of the campaign;

•

the Law Society, subject to financial assistance from the Western Australian Bar Association and WLWA, give consideration

to commissioning and publishing by 2019 a new retention study similar to the 1999 Report on the Retention of Legal Practitioners.

This time period would allow for an assessment to be made of whether the Law Society's 2016/2017 'Diversity and Inclusion' strategic campaign, and other efforts by the profession, have addressed the issues and recommendations in the WLWA Review and whether that has led to improvements in the retention and advancement of women in the legal profession.

The full Directions Paper will be available to access through the Law Society's website.

THE LAW SOCIETY OF WESTERN AUSTRALIA WELCOMES EFFORTS TO REDUCE ABORIGINAL INCARCERATION The Law Society of Western Australia welcomes the State Government's announcement of new legislation that aims to reduce the rate of incarceration of Aboriginal people.

The Law Society understands that the Sentencing Legislation Amendment Bill 2016 will allow offenders to undertake community work, rather than being subject to a fine under an enhanced Conditional Release Order regime.

Law Society President Elizabeth Needham said, "Imprisonment for fine default has contributed to the alarming level of over-representation of Aboriginal people in the WA prison system.

comprised 64 percent of female fine defaulters.

"In recent years we have witnessed the tragic case of Ms Dhu, who died in police custody two days after being arrested for fine default. Any measures that can divert low-level offenders away from imprisonment are welcome."

The Law Society understands that the proposed legislation would allow courts the ability to impose a fine, but then immediately offer the offender attendance at a rehabilitation program or unpaid community work in lieu of paying the fine.

It seems likely that there will be a number of positive effects from the proposed regime, including: •

fewer fine defaulters, resulting in fewer low-level offenders incarcerated;

•

a real reduction in the number of Indigenous people, particularly Indigenous women incarcerated;

•

a reduction in cost to the public in paying for the time fine defaulters would otherwise be incarcerated; and

•

the would-be fine defaulter and the wider community benefiting from the volunteer work.

"The judiciary must be allowed the discretion to apply sentences that are proportionate to the offences committed, taking into account the circumstances of the offender," Elizabeth Needham said.

"A May 2016 report by the Office of the Inspector of Custodial services found that women, and particularly Aboriginal women, are disproportionately represented among fine defaulters.

"Mandatory sentencing denies the judiciary this discretion and often results in draconian sentences.

Legislation that provides the judiciary with more sentencing options should therefore be embraced."

"The Inspector found that Aboriginal women made up only 15 percent of the total prisoner population, but 22 percent of all fine defaulters in the prison population. Aboriginal women

For further information on the Law Society's policy positions on 'Closing the Gap', Imprisonment of Fine Defaulters, Mandatory Sentencing and more, please visit our website.

03

Editor's Opinion Jason MacLaurin Barrister, Francis Burt Chambers, Editor, Brief Journal

This edition of Brief contains a number of articles touching upon the important issue of the health and wellbeing of legal practitioners.

The pressures involved in the practice of the law have been well documented.

As have been the results of (often sub-optimal) methods employed by lawyers to deal with the demands of the profession.

The question of the health and wellbeing of those involved in important and stressful positions, carrying great responsibility, has become front-andcenter in the US presidential elections.

Among the striking aspects of the footage of Secretary Hillary Clinton leaving the 9-11 memorial service, which brought into question her health and fitness, is the uncanny resemblance to many practitioners attempting to get into a taxi after a social law function. One might anticipate an outbreak of pneumonia in the profession later this year during – or at least by the conclusion of – Christmas parties (which in Perth seem to start, for some reason, in late October).

F E Smith, 1st Earl of Birkenhead, was famous not only for his intelligence and wit as a lawyer and parliamentarian, but also his hard-living ways. He dealt with the stress of having to produce an opinion on a libel matter in short order by working through the night to read papers nearly four feet thick, consuming copious amounts of champagne and two dozen oysters, after which he opined: "There is no answer to this action in libel, and the damages must be enormous". 1 To underline, though, the seriousness of health and wellbeing issues, it is noteworthy that Smith died at the age of 56 from pneumonia caused by cirrhosis of the liver.

Winston Churchill's methods for dealing with the pressures of office are

04 | BRIEF OCTOBER 2016

well known, though in one instance involved a (purportedly) medicinal aspect. Travelling to the United States in 1932, when prohibition was in force, Churchill obtained a certificate from a local doctor following an accident2 stating his convalescence necessitated "the use of alcoholic spirits especially at mealtimes".3 The practice of the law is clearly one of the world's most stressful endeavors (though, given the demise of "Brangelina", it seems being married to Brad Pitt is in the running).

However, watching the new Tom Hanks movie Sully about the pilot who emergency landed his commercial passenger plane in the Hudson River in New York provides some perspective as to what is a stressful occupation.

Indeed, considering the stresses Tom Hanks has endured, Hanks may be a useful touchstone for lawyers trying to be more circumspect in their view of the pressures of practice.

Hanks has, for instance, risked his life storming the beaches of Normandy on D-Day, almost died in outer space, and spent excruciatingly long periods of time lonely and conversing with a volleyball (the latter being what some of us had to declare we were doing on Census night).

As a lawyer he has, in one instance, been persecuted and unlawfully dismissed by a firm of bigots, and in another had to, acting for an accused spy, outsmart and outmanoeuvre not only the Russians and other assorted Eastern Europeans, but also shadier elements of the US Government – something that only Donald Trump claims he can successfully do.

He has been a child trapped in a man's body4, pursued Leo Di Caprio across several cities and countries for nonromantic purposes, and been chased by an albino assassin monk (then again, who hasn't – as I expect will be

reflected in the Census results).

He managed to woo Meg Ryan in difficult circumstances on three separate occasions as three different people, and had to endure the stress of dating a mermaid – though exactly how stressful that would be is unclear, and is unlikely to be revealed by the Census.5 In any event, while the pressures of being a lawyer are real and serious, at least they might provide, for instance, a ready explanation for what led to one being robbed at gunpoint by Brazillian police at a Rio service station and not having a clear and precise recollection of exactly what transpired.

In addition to the articles dealing with health and wellbeing, this edition of Brief also contains several items of importance and interest.

It contains the significant speech by the Hon Chief Justice of Western Australia upon The State of Justice: A Perspective After 10 Years.

There are also, among other items of interest, speeches upon the ceremonial welcome to Supreme Court for the Hon Justice Banks-Smith, and a speech by Chief Judge Stephen Thackray on the occasion of the 40th Anniversary of the Family Court of Western Australia.

NOTES 1.

He turned out to be right, given the large payment ultimately made by the defendants.

2.

Churchill was struck by a car after apparently looking the wrong way for traffic (it being the USA) when getting out of a cab.

3.

Adding that while the quantity required was "naturally indefinite" the "minimum requirements would be 250 cubic centimeters".

4.

No, that wasn't portraying Charlie Sheen, it was in Big.

5.

Recourse to the eHarmony website might be the best research tool.

Brief welcomes your thoughts and feedback.

Send all letters to the editor to brief@lawsocietywa.asn.au

Market Update – October 2016 Beat the end of year rush! Now is the time to secure your dream role, or quality legal talent to support your business. Demand for Corporate and Employment law specialists continues, with Construction, Insurance & Litigation opportunities also remaining strong.

To find out how we can assist you with your next career move or legal staffing requirements, please contact us for a confidential discussion on our services and full range of available opportunities.

Please find below a selection of our latest job opportunities for October.

Senior Associate

Projects Lawyer

Corporate M&A

3-5 years

This leading global practice has a rare strategic gap for an experienced Associate/junior Senior Associate to join its prestigious Corporate team.

This major firm has made its mark as one Australia’s leading practices. With a strong pipeline of upcoming work, a fabulous opportunity exists for a Projects Lawyer with demonstrated exposure to mining and infrastructure work.

Led by some of Perth’s most highly regarded Corporate partners, this established and close knit team continues to attract a pipeline of premium work. Your specialist practice will cover regulated M&A, capital markets and corporate advisory work for major ASX-listed companies and global corporations.

You’ll have client contact and involvement in BD activities and opportunity to work across every aspect of major transactions, lead commercial negotiations and to mentor juniors. Working directly with renowned partners and on complex and challenging work, you’ll continue to develop your technical expertise.

Candidates with at least 3-5 years PAE, up to 2-3 years at Senior Associate level and strong regulated M&A experience will be considered. Exceptional opportunity to progress your career with one of Perth’s best Corporate teams, with short term SA promotion and future partnership prospects on offer.

With an established corporate client base of Australian and international clients, you will gain unrivalled experience working on key projects throughout the Asia Pacific region. Working alongside a premier local team, with supervision from expert partners and senior lawyers, as well as regular collaboration with your international colleagues, you will advise on commercial matters for energy & resources and major projects. Your superior drafting and negotiation skills will also see you develop, manage and negotiate any commercial contracting arrangements for your clients.

You’ll require substantial major projects with a top tier or leading boutique team. Brilliant option for a practitioner seeking top of the market remuneration, investment in professional development and training and access to a consistent flow of high quality work.

Banking & Finance

Corporate & Commercial Lawyer

2-5 years

3-5 years

With a premium client list and focus on cross border project finance work in the Asia Pacific region, this top tier Banking practice has an immediate requirement for a quality junior.

This leading firm requires a highly skilled junior to mid-level lawyer to manage quality corporate & commercial work, clients and assist with the growth and development of the practice.

Joining an established team of experienced partners and senior lawyers, this exciting role will see you engaged on major Australian and international project finance, corporate finance and general banking matters. Acting for banks, financiers and multinational corporations, you will support senior lawyers on all stages of transactions, preparing advices, lending and security documents.

At least 2 years PAE and a general banking background will be key to your success. Candidates with broader corporate commercial experience, a passion for finance work and genuine desire to specialise, will also be considered. Benefit from close mentoring, career progression, involvement in high quality, international work and a superb working environment.

As part of an inclusive and supportive team, you will regularly collaborate with highly commercial partners and will access all the mentoring and support you need. You’ll advise medium to large corporate clients in energy, mining, oil & gas, property sectors on private and public M&A, capital raisings and general corporate advisory matters, corporate due diligences and the preparation of all commercial documents.

To ensure your success, you’ll require 3-5 years PAE acting for public and private clients on corporate and commercial matters, as well as an understanding of the Corporations Act and ASX Listing Rules. With a top culture, competitive salary and achievable bonuses and opportunity to build your professional reputation in the area, this role is well worth investigating.

Stacey Back Director p

m

e

www.

.au

Ethics Column

The multi-cultural lawyer Gino Dal Pont Professor, Faculty of Law, University of Tasmania

•

That Australia is increasingly multi-cultural may impact upon perceptions of the law and lawyers.

•

The foregoing is capable of translating to the profession itself, which is increasingly diverse.

•

It is therefore unsurprising to find instances of lawyer misconduct in part driven or explained by diverse cultural or religious backgrounds.

One of the core principles of our liberal democratic system is that the law applies to all. Reflecting the notion of "equality before the law", there is a natural resistance to recognising differential application of the law. In turn, "the law" is often understood as a monolithic structure foundational to free society.

This understanding of the law cannot help but translate into the perception of lawyers, as the principal 'trustees' of the law and the process underscoring it. This common responsibility converts in turn to a perceived homogeneity within the profession.

Neither of these assumptions has ever been entirely correct. There are instances where the law can (and does) apply differentially – for instance, ambulances can legally run red lights in some circumstances whereas others cannot – and there have always been lawyers who do not fit the perceived mould. But with an increasingly multi-ethnic and multireligious (perhaps encapsulated in the term 'multi-cultural') society may come greater challenges to maintaining the semblance of the law as monolithic and a uniform body of lawyers as its trusted servant.

It is trite to observe that lawyers should uphold "the law" irrespective of their own cultural or religious beliefs, or indeed those of their clients. This, one American commentator has observed (no doubt without intending to downplay the seriousness of mental illness), may make the lawyers "emotional schizophrenics",1 in suppressing their own cultural or religious persuasions to the altar of the

06 | BRIEF OCTOBER 2016

law, and to how the latter affects their clients.

The foregoing cannot, however, deny the potential force of cultural or religious ties a lawyer may have. Earlier this year an experienced Victorian solicitor was held to have engaged in professional misconduct as a result of disparaging comments he made to a complainant of sexual abuse allegedly perpetrated by the solicitor's client (and later found to have been proven). The solicitor, who like his client and the complainant was a member of Melbourne's Jewish community, in the impugned comments expressed his disapproval and disappointment, implicit within which was the prospect of community

within elements of the Islamic community for some recognition of Sharia law.

Increasing multi-culturalism is unlikely to lessen these pressures, from which the legal profession – not only ('externally') by virtue of its role in legal process but also ('internally') by virtue of its increasing heterogeneity – can hardly be immune.

It is thus unsurprising to find other instances in recent disciplinary case law where the impact of culture has been noted. For example, the New South Wales Civil and Administrative Tribunal, also early in 2016, was faced with a solicitor who had lodged an affidavit that bore a forged signature, and a false attestation by the lawyer. In deciding to

"There is limited acceptance already in Australia of indigenous law, and more recent times have seen calls within elements of the Islamic community for some recognition of Sharia law." ostracism, that the complainant would involve the police instead of allowing the matter to be addressed within the community in line with Jewish law.

Judge Jenkins, sitting in the Victorian Civil and Administrative Tribunal, viewed it as "truly shocking" for a solicitor to suggest that "members of the Jewish community or indeed any community or religious affiliation, should close ranks and decline to assist in the prosecution of charges of this nature".2 His Honour proceeded to brand it as 'discreditable' for a lawyer in a modern secular society to "proselytise his misguided concept of religious or cultural solidarity" in a manner giving them precedence over his professional obligation to uphold equality before the law.3 Other Australians, often by reason of their culture or religion, may likewise prefer to address what would otherwise involve Australian law through other means. There is limited acceptance already in Australia of indigenous law, and more recent times have seen calls

issue what appears a lenient professional sanction – a three month suspension – the tribunal cited, amongst other things, the solicitor's 'newness' to Australia and a belief that "cultural factors played a part in his behaviour".4 The above, of course, present only as case illustrations, and should not be interpreted as any suggestion that a particular culture or religion misaligns with expectations of the law or of legal practice. Yet the fact of these disciplinary instances, driven at least in part by culture or religion, have ensued in close succession speaks of what is likely to be an ongoing challenge for the profession.

NOTES 1.

Wolfram, Model Legal Ethics (West Publishing Co, 1986), p 585.

2.

Victorian Legal Services Commissioner v Lewenberg [2016] VCAT 439 at [65].

3.

Ibid., at [69].

4.

Legal Services Commissioner v Wen [2016] NSWCATOD 36 at [57], [58]. See also Legal Services Commissioner v Ge [2016] NSWCATOD 25 (fraudulent alteration of academic transcript driven in part by parental expectation in the relevant culture).

Auto Classic

Sales Finance Service Parts

THE BMW X4 xDRIVE20i.

FROM

$69,900

DRIVE AWAY*

NOW AT AUTO CLASSIC. Discover your spirit of adventure in the stylish BMW X4 xDrive20i.

With the aesthetics of a classic coupĂŠ, the high-performance BMW TwinPower turbo engine and standard inclusions such as variable sports steering and Performance Control, you will experience thrilling performance, outstanding efficiencies, peerless luxury and a formidable presence.

Lead the way. Visit Auto Classic and arrange a test-drive today.

Auto Classic 48 Burswood Road, Victoria Park. Ph 9311 7533. A/H 0450 525 025. autoclassic.com.au

LMCT 2271

Offer available at Auto Classic on new vehicles ordered and delivered between 1 July and 30 November 2016. *Offer based on drive away price of $69,900 for a new BMW X4 xDrive20i. Price is based on the vehicle being garaged in Perth and a private owner with a good driving record. Price may vary according to individual circumstances. Consult Auto Classic for further details.

Marking 10 years of service by the Hon Wayne Martin AC as Chief Justice of Western Australia Perth Convention and Exhibition Centre Friday, 9 September 2016

On Friday, 9 September, the Law Society in association with the Western Australian Bar Association hosted a Gala Dinner for the legal profession; one of the biggest social gatherings the legal profession has seen for many years. A chance for the profession to get together, the night also marked a milestone of 10 years' service by the Hon Wayne Martin AC as Chief Justice of Western Australia.

Over 470 of the profession joined us for a wonderful evening of reflection, entertainment, socialising and dancing, including distinguished guests from across Australia and overseas visiting Perth for the Law Council of Australia September Directors' meeting.

The Hon Wayne Martin AC presented an entertaining and thought-provoking address marking 10 years as Chief Justice of Western Australia. The Law Society is delighted to present the full version of His Honour's published speech in this edition of Brief.

The Gala Dinner was a wonderful night, my congratulations to all involved. We were treated to tributes to Chief Justice Martin, a profoundly moving welcome to country and songs in the Noongar language. The Chief's inspiring reflection on his ten years in office was a timely reminder of how much work there is still to do for all of us.

Fiona McLeod SC (Law Council of Australia President Elect), Owen Dixon Chambers West, Melbourne

08 | BRIEF OCTOBER 2016

Guests were treated to a very special performance by Indigenous singer Gina Williams. A Balladong daughter from one of the 14 clan groups which make up the Noongar nation, Gina sung in language to a captivated and inspired audience.

The evening culminated on a high with guests dancing the night away to one of Perth's most sought after dance bands Proof.

I've been going to these events since 1979 and this was top of the class. Great venue, great crowd of 470 people - I think a record and top band as well. Make it an annual event please.

Rick Cullen, Director, Cullen Macleod Lawyers

Members of the legal profession were outstandingly generous in their support, with funds raised through a silent auction for the Chief Justice's Law Week Youth Appeal Trust. Through the Trust, $15,000 will be donated to Holyoake, a leading provider of drug and alcohol counselling and support services. More specifically, the donation from the event will help support young people to engage positively in education, employment and the community through specialised programmes.

The silent auction provided an element of fun and friendly competitiveness as guests generously out bid each other on money-can't-buy experiences, holidays, exclusive memorabilia, artwork and fine

wines. Congratulations to those attendees that were successful in securing a coveted item in the auction and a sincere thankyou to all supporters who donated items for the silent auction.

A special thanks to the sponsors of the evening; our principal sponsor Jackson McDonald, Gold Sponsors: Bradley Bayly Legal, The College of Law, DLA Piper, HHG Legal Group, Law in Order and Production Sponsor: Herbert Smith Freehills. Thank you for your generous support of the event.

What a wonderful evening to mark a milestone of service by Wayne Martin AC as Chief Justice of Western Australia. Chief Justice Wayne Martin has set a fine example not only to the judiciary, but to the people of Western Australia. There was much humility and humour, but underneath it lies the humanity which is at the heart of our profession. This spirit is exemplified by the service of Chief Justice Wayne Martin to the people of our State and it was an honour to be in attendance. Given some of the causes he has championed, it made the Welcome to Country most poignant as was the beautiful performance by Gina Williams. Thank you to the Law Society for hosting a memorable evening.

Mark Borrello, Managing Principal, Borrello Graham Lawyers

It a great opportunity to catch up with friends and colleagues, to celebrate achievements of the past and collaboratively reflect of what needs to be done in the future.

I'd like to see it become a regular feature of the legal calendar.

For me, the real privilege was to listen to the stories and music of Gina Williams.

Nothing short of sensational.

Dr Pat Saraceni, Director, Litigation and Dispute Resolution, Clifford Chance

Kim Lendich, Barrister, Francis Burt Chambers

With thanks to our Sponsors Principal sponsor

Gold sponsors

Photography provided by The Scene Team and Tiffany Garvie.

Production sponsor

09

The State of Justice: A Perspective After 10 Years as Chief Justice of Western Australia The Law Society of Western Australia and the Western Australian Bar Association Gala Dinner Address BelleVue Ballroom, Perth Convention and Exhibition Centre Friday, 9 September 2016 The Hon Wayne Martin AC Chief Justice of Western Australia

ACKNOWLEDGEMENT OF TRADITIONAL OWNERS I would like to commence, as I always do, by acknowledging the traditional owners of the lands on which we meet, the Whadjuk people, who form part of the great Noongar clan of South Western Australia, and by paying my respect to their elders past and present and by acknowledging their continuing stewardship of these lands, and by thanking my friend, Dr Richard Walley OAM, for his characteristically generous welcome to country.

I would also like to particularly welcome our special guests, the members of the Law Council of Australia, to Perth.

Some of our visitors may not be aware that the place on which we meet is, in fact, land reclaimed from the bed of the river known to the Whadjuk as Derbarl Yerrigan and to us as the Swan River, and which is a place of special significance to the Whadjuk as it is one of the homes of the Wagyl, a Serpentine creature of particular significance in the dreamtime lore of the Whadjuk.

INTRODUCTION I am greatly honoured and, I must say, a little surprised to have been nominated as the guest of honour for this evening's gala dinner. That honour is magnified by the pleasure of being surrounded by so many good and old friends who know me well enough to know that I am not easily embarrassed. But I am embarrassed this evening not only because of all the fuss that has been made over the fact that I have managed to serve 10 years in office

10 | BRIEF OCTOBER 2016

without either dying or being impeached, but also because I suspect many of you have been encouraged to attend by the assumption that I am about to give a valedictory address on the eve of imminent retirement. You are not alone in that assumption. The publicity for this dinner has resulted in me receiving a lot of calls from colleagues near and far who have enquired as to my retirement plans, requiring me to respond rather in the manner of Mark Twain, who observed that "The report of my death was an exaggeration". I will come back to my future plans at the end of this address.

If I was a more paranoid person I might be inclined to think that this dinner is a polite but not so subtle means for the Law Society and Bar Association to remind me that I am now entitled to a judicial pension and should give serious thought to making way for someone else.

However, I am not quite that paranoid. I think it much more likely that both were fossicking around looking for an excuse for a big party now that the High Court hardly ever comes to Perth, following the appointment of a Western Australian as Chief Justice of that Court. Of course, I do Chief Justice French a great disservice by that facetious remark – I know that his desire to bring the Court to Perth on circuit more often has been thwarted by the failure of the Court of Appeal to make sufficient errors to justify bringing the Court across the Nullarbor.

MILESTONES Milestones of any kind, be they birthdays, anniversaries or whatever,

provide a good occasion to look back, and then use the benefit of hindsight to try and look forward and, hopefully, improve. That is the course I will follow in this evening's address, starting with some observations about the changes that have occurred over the 10 years I have had the extraordinary honour of serving as Chief Justice of this great State.

AGE The first change I would like to mention is one we all share, because we are all 10 years older. In my case, however, there are some indelible and very public records of the effect of the passage of time, the inverse of the picture of Dorian Gray. One of those records takes the form of my introductory remarks at the commencement of the video which is shown to every person summoned to perform jury duty in this State on the first morning they assemble at Court. That introduction was recorded a little over 10 years ago. In recent years my Associates have overheard jurors remarking that the Judge in their trial looks a bit like the bloke in the jury video except a lot older.

Happily, that section of the video was recently re-recorded, not to ease this confusion but to enable me to administer a severe warning about the dangers of jurors misusing the internet.

However, subjective impressions, inevitably influenced by vanity, are an unreliable guide to the extent of change.

Hard data is a much better guide, and I will turn now to some of the lead indicators.

STATE POPULATION Between 31 December 2005, four months before I was appointed, and 31 December last year, the population of Western Australia rose from 2,028,700 to 2,603,900 – an increase of 575,200 people, or 28%.1 That increase, achieved over just 10 years, is only a little short (by about 25,000) of the entire population of the State in the year in which I was born (1952).2 It will be important to bear in mind the extent of population growth over the last 10 years – namely, 28% – when we come to look at some of the other statistical data.

GROSS STATE PRODUCT Western Australia's gross State product increased from $165 billion in the year ending 30 June 2005 to $276 billion in the year ending 30 June 2015 – an increase of $111 billion or 67%3 – no doubt reflecting the resources and energy boom during that period. After adjustment for inflation, the increase reduces down to $55 billion or about 25%.4 Perhaps counter-intuitively, the State's unemployment rate went from 3.4% in May 2006 to 5.8% in May 20165 – an increase of 70% – that is, an increase significantly greater than the increase in gross product after adjustment for inflation. That statistic supports what many have felt over the last 10 years, and that is that the benefits of the economic boom have not been felt evenly across our population, and that while many are better off, some are significantly worse off following the boom.

PRISONERS IN WESTERN AUSTRALIA – AVERAGE DAILY NUMBER8 March 2006

WA PRISONERS A good place to look for a significant source of increased expenditure in the justice system is in Western Australia's prisons. The table below sets out relevant data by reference to the end of March 2006, as compared to the end of March 2016.

Difference (Number)

Difference (%)

Aboriginal prisoners

1,3519

2,313

+ 962

+ 71%

Non-Aboriginal prisoners

2,181

3,694

+ 1,513

+ 69%

Male prisoners

3,282

5,431

+ 2,149

+ 65%

Female prisoners

250

577

+ 327

+ 131%

TOTAL

3,532

6,007

+ 2,475

+ 70%

% of Aboriginal Prisoners

38%

38%

There are a number of significant conclusions which can be drawn from this table. First, the increase in the prison population, of 70%, is more than double the increase in the overall population. Second, the number of Aboriginal prisoners has increased at approximately the same rate as nonAboriginal prisoners, with the result that the percentage of Aboriginal people in the prison population has remained relatively constant. However, one group of prisoners has grown at a significantly greater rate than others, namely, women prisoners, whose number has increased by more than 130% over the last 10 years.

State and, indeed, this country. Clearly, we have made no progress in reducing the rate of Aboriginal incarceration and, in fact, there are almost 1,000 more Aboriginal people in WA's prisons than there were at the time I was appointed.

The fact that this increase is only twothirds of the increase in non-Aboriginal prisoners is cold comfort indeed when consideration is given to the very small proportion of Aboriginal people amongst the general population. The increase in the prison population over the last 10 years has meant that there are now more people in prison in Western Australia (which has roughly 10% of Australia's population) than were in prison in the whole of Australia when I was born (in 1952).10

These figures are extremely depressing.

I have said many times over the last 10 years that I consider the gross overrepresentation of Aboriginal people to be the biggest single issue which confronts the justice system of this

Increases in imprisonment of this magnitude call out for explanation. One place to look for a possible explanation is in the data relating to recorded crime.

RECORDED CRIME

assault – in which the increase exceeded the population increase. Third, none of the categories of recorded crime show an increase anything like the 70% increase

Data relating to recorded crime in selected categories is set out in the table below.

JUSTICE SYSTEM EXPENDITURE Between the year ended 30 June 2005 and the year ended 30 June 2015 real recurrent funding on the justice system of Western Australia, measured per person, and therefore taking into account population increase, rose from $503 to $8376 – an increase of $334 per person, or 66%, or, after adjusting for inflation,7 $160 or 24%. So why is the justice system more expensive, in real terms, (by about a quarter) than it was 10 years ago?

March 2016

RECORDED CRIME11 Year to 31 December 2005

Year to 31 December 2015

Difference (Number)

Difference (%)

Homicide and related offences

5312

48

-5

- 9%

Assault

20,384

29,351

+ 8,967

+ 44%

Sexual assault

1,791

2,012

+ 221

+ 12%

Robbery

1,617

1,291

- 326

- 20%

Unlawful entry with intent

39,266

37,515

- 1,751

- 4%

Motor vehicle theft

7,203

8,416

+ 1,213

+ 17%

Other theft

76,088

92,483

+ 6,395

+ 22%

A number of conclusions can be drawn from this data. First, in a number of significant categories of crime – homicide, robbery and burglary – recorded crime fell over the 10-year period. Second, in those categories in which recorded crime increased, there was only one category –

in the prison population over the same period.13 So, the data relating to criminal activity provides no explanation for the dramatic increase in the State's prison muster. This phenomenon of prison numbers rising at a much greater rate than recorded crime 11

is not unique to Western Australia – in fact, it can be observed in most Australian jurisdictions and, indeed, most western democracies with similar criminal justice systems to our own, although in recent years the trend appears to be reversing in some countries. In common with many other jurisdictions, over the last 10 years Western Australia has become increasingly punitive and, once allowance is made for the proportion of population which is Aboriginal, we have maintained our position at the top of the table of imprisonment rates in Australia.14 This dubious honour is not something in which I take any pride. It is also something which I think is difficult to reconcile with the views of many Western Australians, who appear to have an intuitive belief that the State is drowning under a crime wave of tsunami-like proportions to which the Courts of the State are responding insipidly and pathetically, with patently inadequate sentences. Nothing could be further from the truth. The more than 6,000 prisoners in our State's prisons did not get there by themselves – they were put there by the Courts of this State at a rate which, over the last 10 years, has significantly exceeded both the increase in population and the increase in crime.

A PERSONAL ASSESSMENT Against the background of that macro data, I would like to move now to an evaluation of the current state of justice in Western Australia which has a more personal focus, by returning to each of the issues which I addressed in the course of my remarks on the occasion of the ceremonial sitting held to mark my appointment on 1 May 2006. Of course, I appreciate that this is extraordinarily selfindulgent, but this might be an occasion upon which a little self-indulgence might be forgiven.

I will endeavour to assess whether the ambitions which I expressed 10 years ago have come to pass as a rudimentary and idiosyncratic way of assessing the performance of the justice system, and myself, against the key performance indicators I selected 10 years ago.

Of course, I accept that the process of self-assessment is notoriously unreliable, being replete with inherent and unavoidable bias, but the respect usually shown to the office which I hold is such that if I do not try and undertake this assessment, warts and all, nobody else will – at least not publicly.

There is another very important qualification upon the extent to which this process can be used as a measure of my own performance. No Chief Justice

12 | BRIEF OCTOBER 2016

can achieve anything on his or her own. In relation to the topics which I will be addressing, any achievement is dependent upon support and assistance provided by judicial colleagues, court and departmental administrators and staff, and, sometimes, the government of the day. So, to the extent that something I foreshadowed 10 years ago has been achieved, credit is not due to me alone but, rather, to all of those who will have combined to produce that result.

However, sadly for me, the converse is not true. To the extent that my ambitions have not been achieved and, as we will see, there are many, that lack of achievement can be fairly attributed to my failure to persuade and encourage others to join with me in making something happen.

With these important qualifications in mind, I turn now to the inevitably biased process of assessment of the extent to which the objectives I expressed in May 2006 have been achieved.

ABORIGINAL INCARCERATION At my welcome, I expressed my concerns about the relationship between the Courts, the law of this state and Aboriginal members of our community. Since then I have spoken more often, and spilt more ink, on the subject of the gross over-representation of Aboriginal people in the criminal justice system of this State than upon any other topic. While I accept that the many possible remedies to this multi-faceted and apparently intractable problem generally lie outside the responsibility of the Courts, the data I have set out above shows that little or no progress has been made on this topic over the last 10 years, in fact quite the opposite. There are now almost 1,000 more Aboriginal people in custody and the Aboriginal imprisonment rate is significantly higher than it was when I was appointed.

ACCESS TO JUSTICE When appointed, and many times since, I have spoken of the many barriers in the path of access to justice for ordinary Australians, including cost, delay, complexity and uncertainty of outcome.

Regrettably, I do not think we can claim any significant improvements in this area over the last 10 years – to the contrary, the relatively recent report by the Productivity Commission reveals the many ways in which we could do much better.15 SELF-REPRESENTED LITIGANTS During my welcome I observed that the

internet provided significant opportunities to increase the information available to self-represented litigants to assist them to manoeuvre their way through an extraordinarily technical and complicated system. Despite the best of intentions and some efforts, we have simply been unable to mobilise the resources needed to provide the sort of information and assistance in a user friendly way that would reduce the extraordinarily heavy burden carried by a self-represented litigant.

REFORM OF JUDICIAL REVIEW OF GOVERNMENT DECISIONS During my welcome ceremony I spoke of the need to implement the WA Law Reform Commission's recommendations on the overdue reform of the substantive law relating to the judicial review of government decisions. I have been unable to persuade governments of either persuasion to proceed with that reform, with the result that the law of Western Australia lags significantly behind the corresponding law in many other Australian jurisdictions. The Rules of Court have, however, been amended to simplify and modernise the procedure relating to judicial review of government action.16 JUDICIAL ACCOUNTABILITY During my welcome I spoke of the need to improve the accountability of the judiciary of this State through a transparent and independent mechanism for processing complaints, along the lines of that provided by the Judicial Commission of New South Wales. Subsequent to my appointment, all Western Australian courts supported this proposal, which was also endorsed by a report of the WA Law Reform Commission.17 However, my many representations to government on this topic remain unrewarded, although a former Attorney General, the Hon Mr Jim McGinty AM, did announce his government's support for the creation of a judicial commission in early 2008.

AUTONOMOUS COURT ADMINISTRATION On 1 May 2006 I also spoke of the desirability of systems of court administration that were autonomous and independent of executive government.

I did not then realise or appreciate just how important those issues were because I then lacked any real understanding of how the courts of this State are administered. As I gathered that understanding, I soon came to realise what an important issue this is for the independence of the judiciary.18 A court which cannot determine where

and when it will sit, how to allocate the funding made available for its operations or how it will communicate with the community it serves, and which depends upon executive government to make those decisions cannot be described as independent of government. That lack of independence is all the more important when, in the case of most of the Courts of this State (with the notable exception of the Family Court) the government is the most prolific litigant in the Court, and the potential for conflict of interest is real and tangible.

The systems of court administration which we inherited from the colonists were fashioned during a time in which there were clear and well understood lines of demarcation between the political and administrative arms of government.

When I worked for the Commonwealth government in the late 70s, there was a very obvious distinction between the functions performed by the Minister's office and the functions performed by the Department under a permanent head who had life tenure. Those permanent heads were powerful mandarins with great experience. Ministers did not take them on lightly, or often successfully.

Regrettably, in my view, all that has changed and the boundaries between the political and administrative functions are now somewhat blurred and indistinct and agencies and their officers are increasingly required to undertake administrative tasks in a way which will further political objectives. The Directors General of departments in this State are appointed to those roles for a term of years, and their future careers depend upon government endorsement. Differing views might reasonably be held as to whether these changes are a good thing, because they enhance political responsibility and accountability or a bad thing because they weaken the checks and balances between the different branches of government. But there can be no doubt of the vital importance of the courts being independent of the other branches of government. The threats to the independence of the courts have magnified, and the risk of conflicts of interest has increased, as the boundaries between the political and administrative branches of government have become blurred, when the courts do not have responsibility for their own administration.

Shortly after my appointment the Courts of Western Australia unanimously endorsed the creation of an autonomous authority under the control of the courts to take responsibility for the administration of the courts of this State. However, I have been singularly unsuccessful in persuading any government of either

persuasion to implement this change.

GENDER BALANCE ON THE BENCH During my welcome ceremony I remarked upon the need to increase the proportion of women serving on the Supreme Court, and I have made a number of remarks to the same effect since then. Regrettably, over the last 10 years the proportion of women on the Supreme Court bench has fallen, not risen, and is now the lowest of any court at any level in any jurisdiction in Australia.19 A BUILDING TO HOUSE ALL SUPREME COURT FUNCTIONS At my welcome I undertook to pursue the strenuous efforts of my predecessor in an endeavour to obtain government support for the construction of a single building or complex in which all the work of the Court could be performed.

Although the General Division of the Court has recently taken up occupation of chambers and civil courts in the David Malcolm Justice Centre, which have been very well fitted out by government and for which we are most grateful, the inefficiencies inevitably associated with conducting operations across a number of buildings remain.

RELATIONSHIPS AMONG WEST AUSTRALIAN COURTS I spoke at my welcome of the need for all the courts of Western Australia to act collegiately and co-operatively together. I am pleased to record that this proposal was warmly endorsed by the heads of other State courts, and we meet regularly, along with senior officers of the Department, in order to discuss matters of common interest. Judicial officers of all courts have participated in a number of joint activities, including continuing professional development. I think it is fair to say that the various State courts work collegiately and co-operatively together.

INTERLOCUTORY PROCEEDINGS IN CIVIL CASES IN THE SUPREME COURT During my welcome I spoke of the need to reduce interlocutory disputes, to encourage the early identification of the real issues in a case, and to reduce the burden and expense of pleadings and discovery of documents, and suggested that achievement of these objectives might be enhanced by a system of docket case management by Judges of the court across a wider range of cases than had previously been managed in this way.

Those proposals were embraced by my colleagues and the Commercial and

Managed Cases List was formed and the Rules of Court amended, through which many of these objectives have, I believe, been achieved.

JUDGMENT DELIVERY TIME At the time of my appointment I spoke of the need for the timely resolution of cases before the Court. At that time a number of members of the Court had reserved decisions that had been outstanding for unacceptably long periods, measured in years rather than months. Changes have been made to listing procedures and work allocation which have significantly reduced this problem, although it can probably never be entirely eliminated. On the other hand, delays in listing criminal trials are greater than we would like.

REFORM OF THE RULES OF COURT Although some changes have been made, the Rules of the Supreme Court are, in many respects, antiquated and outmoded, and require root and branch revision, ideally in conjunction with legislation, which would bring the antiquated Supreme Court Act 1935 into the 21st Century, and which would enable all civil rules of court to be promulgated under a Civil Procedure Act, as occurs in New South Wales and Queensland. While I was able to persuade the government of the day to undertake a project along those lines, that project lapsed when the government changed and I have been unable to persuade any successive government to resuscitate the project.

SIMPLIFICATION OF LANGUAGE IN FORMS At my welcome I spoke of the need to translate legalese into plain English and to rewrite court forms in terms 13

comprehensible to non-lawyers. I had hoped that this would occur as part of the project for the revision of the rules to which I have just referred. However, unlike that project, it was not significantly dependent upon legislative support.

Nevertheless, a substantial revision of the forms and language used is a major project, and we have been unable to mobilise the resources necessary to undertake that project.

CRIMINAL CASE MANAGEMENT AND ADR At the time of my appointment I spoke of the desirability of utilising procedures for case management and alternative dispute resolution (ADR) which had evolved in the civil side of the Court's work in the Court's criminal jurisdiction. My judicial colleagues embraced that notion and went one step further, proposing the integration of pre-committal proceedings into the case management procedures utilised by our Court, through the creation of the Stirling Gardens Magistrates Court, which has, I believe, worked well.

PUBLICATION OF SENTENCING REMARKS As I foreshadowed at the time of my appointment, remarks made by Judges of the Supreme Court at the time of passing sentence are now published on the internet shortly after sentence is passed, improving the extent of the information available to the public in relation to the reasons for any individual sentence.

IMPROVING PUBLIC AWARENESS I share, and enunciated at my welcome, the views of my predecessor, the Honourable David Malcolm AC, with respect to the importance of using every means at our disposal to improve public awareness of the justice system and of the reasons why it operates as it does. Like him, I have spoken regularly on various forms of media and have accepted every reasonable invitation to address a community group on issues relating to the justice system, and my many addresses have been published on the website of the Court. I am sure that there is more that could be done in this area, but I think quite a lot has been achieved.

WEBCASTING OF COURT PROCEEDINGS In the course of my remarks concerning public awareness of the courts and our justice system, at my welcome I spoke of the desirability of utilising contemporary technology, such as webcasting. My initial efforts to secure the support of

14 | BRIEF OCTOBER 2016

government to provide public access to court proceedings through this means were not successful, but I am pleased to report that the Attorney General has recently indicated that he is now amenable to the provision of these resources, subject to funds being available within the relevant budget line, which is most unlikely to be an obstacle to implementation given the modest sums involved. I am hopeful that this facility will be achieved before the end of the year, and utilised sparingly initially, as we gain experience of its strengths and weaknesses.

COURT REGALIA The only time I have ever worn a judicial wig and the red robes of the Supreme Court was at my welcome. I spoke then of the desirability of Australian Judges dressing in a manner more relevant to contemporary Australian society. It took me a little while to garner the support of my colleagues for this proposal, but horse hair wigs and Supreme Court Judges dressing like Father Christmas are now a thing of the past.

PROCEDURES FOR THE APPOINTMENT OF SILK At my welcome I spoke of the desirability of broadening the consultation procedures relating to the appointment of Senior Counsel and my colleagues subsequently endorsed a proposal which has had that effect. Although there will always be people who are dissatisfied by the outcome of that process, appointment now only occurs if there is a general consensus in favour of appointment and does not turn upon the possibly idiosyncratic view of any individual, not even the Chief Justice.

SUMMARY It will be apparent from this review that some of the objectives I identified 10 years ago have been achieved, and some have not. Generally speaking, those that have not come to pass are in areas of greater importance and require the support and involvement of those outside the Court.

So, if I were the principal of a school reviewing a report of my performance, I would probably write these words at the foot of the report: Wayne has displayed potential in the easier areas of the curriculum, but needs to work harder in the more difficult areas and to improve his capacity to encourage the support and assistance of others.

LOOKING FORWARD So, what does this subjective review of the past tell me about the future? I expect there would be general consensus with respect to the worthiness of at least some of the objectives which I have espoused and which have not yet been achieved, although I am sure differing views are held as to the relative priorities of these objectives. I remain convinced of the need to do whatever we can to reduce the over-representation of Aboriginal people in the justice system of this State, to improve access to justice for ordinary Australians, to improve the information and facilities available to self-represented litigants, to improve the Court's gender balance, to enhance the accountability of the judiciary through an independent and transparent mechanism for the handling of complaints, to modernise the law relating to judicial review of government action, and of the need to enhance the independence of the courts by providing them with the autonomy to conduct their own administration. Root and branch reform of the rules of court, and simplification and modernisation of the language used in court forms are also thoroughly desirable objectives.

Much remains to be done. If I am to take the advice given to myself by me as school principal, I must work harder, and I can only do that if I remain in this position for a little longer at least. So, those of you who came to hear a valedictory speech this evening will go away disappointed.

However, I have always said that I do not want to outstay my welcome, and I recognise the reality that if I have failed to achieve something in 10 years of trying, the probability of me achieving that result in the future must be significantly reduced. There will come a point in time at which I will likely form the view that somebody else a bit younger, with fresh eyes and vision and with the enthusiasm that inevitably accompanies taking up a new office could make a better fist of the office than I am. When that time comes, I will step aside and make way for such a person. It would, however, be disingenuous to suggest that my decision will be entirely altruistic – I really enjoy this job, the extraordinary variety of work that it has brought and, probably most especially of all, the opportunity which it provides for me to meet many Western Australians across all walks of life who make such a great contribution to our community. I won't be surrendering those opportunities lightly.

AND IN CONCLUSION – THANKS There are so many people I should thank this evening it is difficult to know where to

start, and the process is fraught with the risk that I will miss out somebody really important, for which I now apologise.

First and foremost, I would like to thank the Law Society and Bar Association for the great honour that has been paid to me this evening, and which remains a source of embarrassment, and, of course Jackson McDonald and the other sponsors for their generous sponsorship of this event. Second, I would like to thank the many people who have made my last 10 years so enjoyable with their invaluable support, assistance and encouragement. Those people include my judicial colleagues, not only on the Supreme Court but on all the Courts of the State, the many government officials with whom I have worked over those years, including the staff of the Supreme Court and my personal staff, which have included ever-accommodating Orderlies, a succession of brilliant Associates who have made me look much cleverer than I really am, and three extraordinary women, my Chief of Staff, Ms Christina Curtis, my media advisor, Ms Val Buchanan, each of whom have done extraordinary work to keep me out of trouble over the last 10 years, and Dr Jeannine Purdy, who has worked with me over much of that time, providing me with invaluable research and insight into topics I have been addressing, while at the same time encouraging me,

Government Services 2016 (2016) Table 2A.48 CGFCE price deflator in 2014-15 dollars (2014-15 = 100); 2004-05 dollar = 74.3.

ever so gently, to get into trouble.

Finally, and perhaps most important of all, I owe a huge debt of gratitude to my wife, Margie, who has given up countless hours of her time to accompany me to the many functions which populate the life of a Chief Justice, and who has inevitably had to shoulder a greater share of the burden of raising our children because of the many demands of my office, and who has always been supportive and encouraging.

8.

ABS, 4512.0 – Corrective Services, Australia, March Quarter 2006 (2006) & Corrective Services, Australia, March Quarter 2016 (2016) (average daily numbers unless otherwise indicated).

9.

Only available as count on first day of the Month over March Quarter.

10.

ABS, 1301.0 Year Book Australia, 2001 (2001) 'Crime in the Twentieth Century' (Table C8.11).

11.

ABS, 4510.0 – Recorded Crime – Victims, Australia, 2009 (2010) & Recorded Crime – Victims, Australia, 2015 (2016) (Based on offences recorded by police).

12.

Excluding driving causing death as this is no longer included in this offence category.

Might I also conclude by expressing my gratitude to all who have attended this evening, in the naïve hope that I might be at least part of the reason you are here, while acknowledging that I am sure many of you are here for a very fine party.

13.

I have utilised ABS data for calendar years, which obviously differs from the data published by WA Police relating to financial years. The latter data also reveals greater volatility in reported crime rates, especially over the last year or so, but the long term trends evident in both data sets are consistent. The ABS data doesn't include illicit drug offences, which have undoubtedly increased and contributed to the increase in prison numbers, but not sufficiently to explain the dramatic increase.

NOTES

14.

ABS, 4512.0 – Corrective Services, Australia, March Quarter 2006 (2006) & Corrective Services, Australia, March Quarter 2016 (2016).

15.

Productivity Commission, Access to Justice Arrangements (2014).

16.

Supreme Court Amendment Rules (No 3) 2013 (WA).

17.

Law Reform Commission of Western Australia, Complaints Against Judiciary (2013), Recommendation 2.

18.

I have expanded on this topic in an address I gave in 2013, 'Court Administrators and the Judiciary – Partners in the Delivery of Justice' (7th International Association for Court Administration Conference, Sydney, 26 September 2013).

19.

Australasian Institute of Judicial Administration (AIJA), 'AIJA Judicial Gender Statistics – Judges and Magistrates (% of Women) March 2016'.

1.

Australian Bureau of Statistics (ABS), 3101.0 – Australian Demographic Statistics, Dec 2005 (2006) & Australian Demographic Statistics, Dec 2015 (2016).

2.

In 1952 the population of WA was 599,858 – see 'A Century of Population Change in Western Australia', ABS 1367.5 – Western Australian Statistical Indicators, Sep 2001 (2001).

3.

ABS, 5220.0 – Australian National Accounts: State Accounts, 2014-15 (2015) (Gross State Product: Chain volume measures).

4.

Based on Productivity Commission, Report on Government Services 2016 (2016) Table 2A.48 CGFCE price deflator in 2014-15 dollars (2014-15 = 100); 2004-05 dollar = 74.3.

5.

ABS, 6202.0 – Labour Force, Australia, Jul 2016 (2016).

6.

Productivity Commission, Report on Government Services 2016 (2016) & Report on Government Services 2006 (2006).

7.

Based on Productivity Commission, Report on

LEGAL PRACTICE MANAGEMENT COURSE Making a Move?

This course is approved under the Legal Profession Rules for those required to undertake a Legal Practice Management Course.

EMAIL US lpmc@collaw.edu.au

CALL US 08 9214 0200

VISIT US collaw.edu.au/lpmc

15

Creativity, Community and Law Michael Tucak Principal Lawyer, creative | legal

Being awarded the Attorney General's Community Service Law Award in May for legal work in the arts and cultural sectors, an honour for which I was very grateful, also made me realise just how important arts and creativity is to all of us, particularly lawyers. I believe it can actually help us practise better, and make for better law-making.

As well as the personal recognition for my work with arts, cultural, community and not-for-profit clients over 20 years, I was thrilled that arts and creative work is seen as a worthy and important part of our communities. I've always believed it to be so, but often felt it was often seen as a 'soft area' that was nice to support or fun to engage with. I believe it is a vital part of our society.

It is for this reason I do my pro bono work in the arts – to support it, understand it better, and to help champion its benefits. It has grown from something I began doing because I enjoyed listening to local WA music, to become not just my practice area, but a passion because of what it offers to us all.

ARTS AND BALANCE At the initial and most obvious level, arts and creativity provides one of the best opportunities for work life balance, alongside 'some' physical activity.

Seeing a gig, wandering through a gallery of historical or contemporary art or taking part in a 'hackathon' to innovate new solutions using the data and technology that now envelope our lives, all make for release and counterbalance to the demands of legal practice. Even more so if you're playing in the band, making the art or 'hacking'.

A recent UWA study by Dr Christina Davies showed that at least two hours of 'arts activity' a week is the threshold above which measurable impacts on mental health occur1. Just two hours 16 | BRIEF OCTOBER 2016

"A creative approach to solving problems, challenges and the opportunities that they present will soon become essential."

(100 hours a year) is the point at which we properly engage with the arts and the benefits accrue – similar to the recommended 30 minutes a day of moderate physical activity. Two hours of arts a week? Great!

CREATIVITY AND WORK The arts offer us more than a mental health boost. It can challenge us, promote and provoke new ideas and critical thinking, suggest links we might not previously have seen, and encourage us to empathise with a range of different views and circumstances. All of these are obviously hugely beneficial skills or abilities for lawyers to develop and foster in themselves and their colleagues.

However, I believe we are at risk of under-utilising and under-appreciating what the arts really offer our society. If we properly understand this gap, and start to recognise how to close it, we all stand to benefit, now and in the future.

ARTS, CREATIVITY AND INNOVATION As society continues to change at a rapid pace, we will continue to face many new or unexpected problems, challenges and issues, and increasingly need to solve them in new or untested ways. A driverless car poses many

issues for us technologically and socially, but legally too. Access to our data is likely to become increasingly open, but what are the frontiers beyond privacy restrictions that the law may need to tackle? The sharing economy (Airbnb, Uber, Storekat, etc.) are currently in a 'honeymoon' phase, but already challenging and shaping laws in planning and in taxation.

New approaches will increasingly be pursued in a range of areas – some will be 'disruptive' and present new issues.

As a society we need to be able to adapt, and as lawyers we need to as well.

A creative approach to solving problems, challenges and the opportunities that they present will soon become essential.

We will need to develop our 'creative capacity', to think 'outside the box', to apply new elements to our critical thinking mix and to understand new emerging perspectives.

A strong engagement with the arts and an equally strong and central role of arts in our society, is crucial to us doing this.

In other words, just like we can cultivate sharp, agile abilities through an active physical life, we can grow and develop our innovative abilities through an active 'arts life'.

Our 'arts life' might be directly undertaking artistic or creative work (I dabble in the occasional radio program on RTRFM and some visual art), participating or appreciating the work of others at exhibitions (I'm a huge fan of Artist Open House Fremantle, coming up in November, a unique combination of architecture and art), festivals (like our successful Fringe World), performances of dance, theatre or music (including the 'DIY' style Parlour Gigs in lounge rooms and back gardens) or by directly assisting an arts, cultural or community organisations as board member or lawyer.

BENEFITTING FROM CREATIVE INVOLVEMENT I've personally found my role on various arts boards to be just as rewarding as direct legal work – interactive, agitational arts group 'pvi collective' (who presented the work 'blackmarket' at the 2016 Perth International Arts Festival) has challenged and transformed my thinking around the board table, and in participating in one of their 'playfully subversive' public performances. The Chamber of Arts and Culture, an arts equivalent to the Chamber of Commerce and Industry, is a welcome opportunity to consider, and

advocate for, the policy settings around those sectors.

Experiencing first-hand the 'open access' model of Fringe World, which has arguably transformed Perth's arts and cultural landscape, has been an inspiring example of innovation at work.

Sitting as co-chair of my local business association has challenged me to step outside of a 'single-focus' problem solving approach, often desirable as lawyer for client, but not always so for a community.

However we choose to engage with the world of arts and culture around us, we stand to benefit.

From there it is up to us to take our increased 'creative capacity' into the work we do, and to look at where it might lead, professionally or personally. I am increasingly excited by opportunities for advocating and championing the importance of creativity in our futures, and in particular in how my legal career allows me to do that. I may not join the bar (or the bench!) nor be partner at the large end of town, but providing legallyinformed input to boards and community forums, as well as the 'law making' processes of our parliamentary system, are all things that still appeal.

Whatever it is, I hope to combine my skills as a lawyer with my interests in what I feel is important in wider society, which for me is arts and creative activity.

I have been very fortunate to learn so much about those areas, and develop my own abilities, through my pro bono or volunteer work.

Whatever your areas of interest outside of the law, I encourage all other lawyers to do the same – and to strive for your two hours of arts and creativity a week.

It may not only give you a health and wellbeing boost, it could well transform how you practice and contribute to your community.

NOTES 1.

Davies, C., .Knuiman, M. & Rosenberg, M. (2016) The art of being mentally healthy: A study to quantify the relationship between recreational arts engagement and mental well-being in the general population BMC Public Health (2016) 16 15 Available at: https:// bmcpublichealth.biomedcentral.com/articles/10.1186/ s12889-015-2672-7.

OTHER LINKS •

pvicollective.com

•

fringeworld.com.au

•

cacwa.org.au

•

artistopenhousefremantle.com

•

perth.govhack.org

•

parlourgigs.com

•

creativecapacity.com.au

•

creativelegal.com.au

17

Wellness and Mental Health Jordan Ralph and Luke Dimasi Warrior Wellness

The proliferation of the wellness agenda (and industry) over the last ten years has closely matched the spread of mental illness in the western world. This is only a rough association, though it would seem that as individuals and as a society we have been driven toward a search for answers for this very modern ailment which is affecting more and more of us. Wellbeing drives mental health – enables it; and vice versa. Mental health is confidence, self-esteem, self-efficacy, satisfaction and contentment. While it is normal for the mood to fluctuate through highs and lows from day-today, this general sense of ease should be the default state – where we spend the majority of our time. It accompanies a level of cognitive and emotional functioning that enables us to appreciate and enjoy the events and people in our life to the fullest extent. Mental illness, on the other hand, cripples the wellbeing of the person. Feelings of being overwhelmed, obsessiveness, dissociation, and exceedingly high or low states (to name just a few) are completely normal, but it is 18 | BRIEF OCTOBER 2016

when these feelings become persistent, become part of our default state, that mental illness starts to set in.

The 'mental health problem' is now well recognised – we know the stats are bad though they still manage to raise an eyebrow.1 Despite the doom and gloom, the evidence is strongly in favour of the view that the mental health of the population can be improved upon simply by returning to a few basic tenants of good health, things we have always known to be true and which are almost entirely within our control. Though, while lifestyle and the pursuit of wellness is an effective treatment and preventer of mental illness the advancement of these remedies is hampered by an ongoing stigma associated with mental illness, imposed by both the individual upon themselves, and by the people surrounding affected individuals. This stigma disempowers us to take our own remedial action. Once we remove the stigma we can, as individuals in everyday life (as opposed to governments and foundations), stop tip-toeing around

the issue because we think it is too uncomfortable, scary or complicated.

To get to the essence of the 'mental health problem' we propose that we need to reconsider the very meaning of mental illness so that we do not become clouded from the core truth of the matter: in many cases we have the power to help ourselves by following a simple set of lifestyle behaviours which have a profound effect on mental health improvement, and mental ill-health avoidance.

ARE WE REALLY SO SICK? It seems a basic point but too often it is overlooked: to have an informed discussion about mental health then it helps to understand just what it is. To get into the right mindset for the distinction we are trying to make, consider the debate that has been brewing for many years now regarding the diagnosis of ADD or ADHD (attention deficit hyperactive disorder) in children. Because of the sensitivity of the implications of this

diagnosis – the medication and 'special' treatment of our kids – this debate has been rigorous and has gone on to explore the problems generally with psychiatry as a science. For example, is this a problem with the child or are there environmental causes which can explain the behaviour?

Perhaps it is even unwarranted to call this behaviour problematic. To wit, have our standards shifted such as to become intolerant of a child's normal tendency to push boundaries? Or, have our modern parenting standards deteriorated to the point of failing to imbue a modicum of discipline in children?

We make this point because it is illustrative of the challenge we face with regards to the seemingly inexorable spread of mental illness amongst us. The simple question is: are we as sick as we think we are?

In 2013 a report published in the Australia and New Zealand Journal of Psychiatry measured a 58% increase in the dispensing of psychotropic drugs (drugs for mental illnesses) over the period from 2000 to 2011, including a 95% increase in antidepressants.2 Could the mental health problem have gotten so big so quickly?

Consider that psychiatry, as opposed to other disciplines of medicine, offers no pathology (biological tests) to support its diagnoses. What psychiatry does offer is effectively a checklist of symptoms to be subjectively interpreted by the psychiatrist. That checklist is put together in texts like the Diagnostic and Statistical Manual of Mental Disorders (DSM), which is used worldwide by clinicians, researchers, regulation agencies, and even the legal system. It is considered one of the most important reference texts for any practicing psychiatrist yet even a book of this importance and influence is collated by a committee based on the collective experience of psychiatrists.

It is, in essence, a subjective text, and not without criticism from various commentators because of this.

For instance, noting that each edition of the DSM continues to expand the number of identified diagnoses, some critics have argued that the financial relationships that many of the contributing authors of the DSM have with the pharmaceutical industry demonstrates a conflict of interest and suggests a motive to drive up the incidence of mental disorder diagnoses.3 But quite apart from the alleged ulterior motives of influential psychiatrists is the pragmatic and eloquent criticism from the British Psychological Society that "clients and the general public are negatively affected by the continued and continuous medicalisation of their natural and normal

responses to their experiences ... which demand helping responses, but which do not reflect illnesses so much as normal individual variation".4 DEMYSTIFYING MENTAL ILLNESS One of the great challenges with our 'mental health crisis' is realising that the goal posts (defining criteria for mental illness) have widened significantly in only a matter of decades. This is problematic for a number of reasons. First and foremost because we apply the same stigma, very often self-imposed, to a mental health diagnosis as generations upon generations have in the past. Once upon a time – not that long ago – being mentally ill meant losing one's mind. This was poorly understood and viscerally feared by the masses. Nonetheless, mental illness was narrowly defined.

Nowadays, rightly or wrongly, mental illness as a diagnosis has grown and can potentially include such natural and transitory states as severe grief,

GET WELL SOON How many people get through life without ever getting sick or injured at some point? How many athletes are in top form all of the time? We don't consider injuries, mild infections or an athlete's dip in performance unusual because it is unrealistic to expect otherwise. The same does not apply to mental health – we are deluded into thinking that we ought to be operating at maximum cognitive and emotional capacity all of the time. When we afford each other little tolerance for deviations from some rough, socially construed sense of normality, or when we punish each other for supposedly projecting weakness, we deepen the mental illness stigma. Constant peak performance is a fiction which we must accept, even if we are striving for it.

Mental illness, particularly the variety of 'low severity' conditions such as depression and anxiety, are injuries.

Injuries need attention, time to rest, help from the people around us, but allowing

"... while lifestyle and the pursuit of wellness is an effective treatment and preventer of mental illness the advancement of these remedies is hampered by an ongoing stigma associated with mental illness ..." melancholy, and natural responses to stress. People need help when they are facing these challenges, but the label of mental illness is damaging because our slow to move perceptions of mental illness bring about shame in the victim and drive them underground, and this is when more serious issues can fester.

The second challenge with the widened goal posts is that people are driven into medical treatment sooner by the application of labels such as depression or anxiety. Medical treatment is certainly warranted in serious cases and it is also imperative that a suffering person seeks help regardless of the severity of their condition, but the early medicalisation of those cases which falls into the "widened goal posts" categories only serves to deepen the stigma: "I am taking medication so there must be something wrong with me." Self help and support groups are far better in these situations, particularly if the labels can be removed.

Seeking help because you're feeling down or overwhelmed is easier to broach with people than the definitive statement "I have depression/anxiety disorder."

Applying labels in this way through earlier medicalisation ultimately disempowers the victim. They relinquish a degree of self-determination about their affliction because they no longer feel qualified to address it themselves.

ourselves to make deeper inferences about a person's character must be avoided.

FROM MENTAL ILLNESS TO MENTAL WELLNESS Training induces a measure of stress.

Our bodies respond, rebuilding cells in the image of the stronger cells that survived the stress so that as a whole, the organism is not only prepared for the next stressor, but better equipped to deal with it than before. Each bout of stress endured by the body, so long as it doesn't breach a certain upper threshold, induces a response which lifts that upper threshold of tolerance. This is called super compensation, and it is exploited by coaches of elite athletes who systematically and incrementally build an athlete's physical capabilities by inducing increasingly larger doses of stress throughout the training regime.

The super-compensation effect does not only apply to physical capabilities. It applies to our response to any form of stress, even mental stress. It also applies to skills: practice makes perfect. Without training (i.e. the purposeful induction of manageable bouts of stress) we either stagnate or enter into involution. Involution is where the body perceives that it need not maintain a higher level of adaptation and declines to a weaker state.

19

Seeking wellness is about training the body and mind to be stronger so that we are galvanised from the gradual deleterious effects of the low-level, chronic style of stress which seems to be a side effect of modernity. With this training we lift our stress tolerance threshold above the level that we generally sustain on a day-to-day basis.

Have you ever wondered how certain people seem to be able to happily manage through life's challenges – always keeping their cool despite the situation?

These people are not superhuman; they may just be better trained (however, predisposition to stress and extreme moods present a greater challenge for those affected).

TRAINING FOR WELLNESS – A HOLISTIC FOCUS In a 2012 report compiled by the Australian Institute of Health and Welfare, a range of health risk factors were measured against the incidence of specified chronic conditions which are currently plaguing Australians at all ages.

The risk factors tested included: high risk smoking and alcohol behaviours, physical inactivity, insufficient fruit and vegetable intake, weight (measured via BMI as well as waist circumference), and blood pressure.

Figure 1 shows the results of the number of risk factors exhibited by people with chronic conditions. While this doesn't necessarily show causality, that is, demonstrating unequivocally that the presence of one risk factor or another causes the given chronic condition, the correlation is clearly evident – the more lifestyle risk factors you exhibit, the more likely you are to fall victim to a chronic condition. Across the chronic conditions tested, this relationship between risk factors and incidence is most dramatic in relation to depression, a common mental illness. This demonstrates that in order to steer clear of depression we need to be careful to manage our lifestyles properly on a number of fronts, because 20 | BRIEF OCTOBER 2016

just one additional risk factor significantly increases your chances of falling victim.

Training for wellness is multifaceted and cuts across all of these risk factors.

brain chemistry. It is suggested that exercise helps us flush the system of the stress hormone cortisol. Exercise is itself a form of stress on the body and it is

Figure 3.4: Numbers of risk factors by selected chronic condition, 2007-08 25

None One Two Three Four Five Six or more

20

Percent

This evolutionary response, and the avoidance of involution, is where wellness becomes an essential aspect of the response to the mental illness problem. Wellness is the truest sense of preventative medicine: making yourself stronger and in doing so, less likely to fall victim to persistent unhealthy mental and emotional states. In truth, wellness is the product, not the process. The process is actually volatile with ups and downs representing the training stimuli we inject into our lifestyle and the periods of recovery after these stimuli. The result, the appearance of stability, is actually the median state running through these ups and downs.

15

10

5

0 Type 2 diabetes

Arthritis

IHD

Notes: 1. See Appendix B for information about chronic conditions.

2. Estimates are based on self-reported data.

3. Age-standardised to the 2007-08 survey population.

Source: AIHW analysis of the 2007-08 NHS.

Osteoporosis

Depression

Asthma

COPD

Stroke

Chronic conditions

Figure 1: Numbers of risk factors by selected chronic condition. The risk factors tested included: high risk smoking and alcohol behaviours, physical inactivity, insufficient fruit and vegetable intake, weight (measured via BMI as well as waist circumference), and blood pressure.

Source: (Australian Institute of Health and Welfare, 2012).

Physical Activity The physiological link between exercise and mental health is only loosely understood at this time. The challenge is that, as pointed out earlier, psychiatry as a science offers no definitive pathology, only behavioural hallmarks considered indicative of a disorder. Nonetheless there most certainly is an observable positive relationship between exercise and mental health. Various studies have used exercise to treat the 'mild' forms of mental illness we referred to earlier – anxiety and depression. One such study found exercise was as effective as antidepressant medication in the treatment of mild depression.5 Another review found a statistically insignificant difference between medication and exercise as a treatment for this disorder (so why medicate when exercise is as effective?).

Notably, exercise was found to be more effective than traditional relaxation style treatments, such as yoga, group therapy, cognitive behaviour therapy, and meditation.6 There are likely many contributing factors behind this link. Among the hypotheses is that exercise improves hormone regulation which influences

likely that the repeated exposure to small bouts of stress in this fashion results in smaller secretions of cortisol in other stressful situations – that is, we learn to better deal with stress at a physiological level. The disturbance to homeostasis which exercise produces accentuates our normal, hormone-driven, daily peaks and troughs, which means that exercise can help us sleep better. Better sleep improves our mood and coping skills and enhances our resilience against anxiety and depression. Exercise also helps regulate our insulin responses to food, which means we regulate blood sugar levels better. Since the brain utilises only glucose (sugar) for fuel, delivering glucose in smooth and gradual doses rather than in volatile spikes and troughs, may ultimately keep brain chemistry working optimally.

Tips to improve exercise and movement: •

Change your perspective, view exercise as an opportunity not a chore.

•

Take every opportunity to move more in everyday life. Break up long periods of sedentary activity.

•

Eat well and rest properly so that you do not feel tired when it is time to exercise.

•

Try to remember that exercise invigorates, and you rarely feel mentally tired after exercise.

Balanced Diet Like physical activity, the exact physiological mechanism which triggers better mental health outcomes when good diets are observed (or poor

outcomes when poor diets are followed), still requires development. Nonetheless, the statistical link has been established in a number of studies. Importantly, this link is observed across countries, cultures and age groups, especially with regards to depression.

It has been suggested that levels of serotonin, a neurotransmitter that helps regulate sleep, appetite, and mood, are heavily affected by the type of foods we eat.

Proper nutrition also influences the rate at which we recover from any stress, be it physical or mental. Without a good diet we can become worn down by the rigors of life, and this affects us mentally. The recurring theme here is that energy and mood go hand in hand. When we are tired we are very often irritable. When we are drained it is much easier to become anxious about a bad situation. Good nutrition helps tip the scales toward energy, ease and fulfilment, and this bodes well for our mental health.

Tips to improve diet: •

Change your perception – diet is a lifelong habit, not a sudden and drastic short-term change which is ultimately unsustainable and unhealthy.

•

Start small. Remove 'extras' (sugar, butter, treats). Replace snacks with fresh cut fruit and vegetables and/ or nuts.

•

Prepare – food ready in advance will stop poor choices from happening before they even get in your head!

•

Exercise and sleep well. Another as yet unexplained phenomenon, but observable nonetheless, is the tendency for people to eat better once they start exercising regularly.

Sleep and stress The link between sleep, stress and mental state is somewhat better understood.

"... we are deluded into thinking that we ought to be operating at maximum cognitive and emotional capacity all of the time."

Stress and depression has been shown to disrupt sleep in at least 65% of cases amongst adults, and conversely, sleep problems very often precede the onset of mental illness.7 Self-esteem, entailing perceived capability to meet demands and responsibilities, self-management, emotional management and the perception of stress appear to sit behind these connections. Poor sleep lowers our coping thresholds creating a vicious cycle affecting confidence in oneself and emotional wellbeing.

The technical phrase is "reciprocal association", a relationship documented empirically between insomnia and burnout.8 The focus of most sleep recommendations is quantity. This is certainly important, but incomplete – quality and quantity need to be achieved in order to get the best possible sleep.

It has to do with various stages of sleep.

The deepest stages of sleep (stages 3 and 4) only last a short period of time, but it is very important to our daily revitalisation.

We lose some of the restorative effect of sleep if we never achieve these stages or are broken from them prematurely.

People with sleeping disorders very often only sleep lightly, even if they sleep (or are in bed) for a long time. When we sleep we go through cycles of each phase of sleep. Typically, the earlier part of the resting period is dominated by deep cycles – in and out of stages 3 and 4. The later part of the resting period (typically morning) involves cycling through the lighter 'REM' (Rapid Eye Movement) sleep to a greater extent – the type of sleep we often associate with dreaming.

REM sleep helps consolidate memories and emotional experiences, ultimately affecting mood and energy. Together, this means that poor quality sleep affects our daily revitalisation while too little sleep cuts down our chances of getting REM sleep, affecting mood.

Tips to improve sleep quality: •

Get regular: Practise going to bed and waking up at roughly the same time, even on weekends.

Shearn HR Legal - Human Resource + Recruitment welcomes our 18th year in exclusive legal recruitment and is ever present for advice, guidance, support as to careers, salary and performance appraisals and general market status for both candidates and clients.

Call Julianna for your 2016 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 21

•

Bed is for sleep: do not let the body associate the bed with anything else except sleep, and sex. This means no watching TV, eating or "just lying about" in bed.

•

Avoid caffeine, alcohol, and nicotine in the 4-5 hours before bed.

•

Set a bedtime ritual – a process you go through when preparing to get into bed.

•

Exercise: this helps create a stronger sleep drive as the body relaxes into a deeper rest state to compensate for the excitement of exercise.

Social and Environmental factors The influence of our social circle upon us is just another one of those things that we tend to know instinctively.

The pervasiveness of social influence with regards to health behaviours was measured in one long-term study tracking obesity incidence across groups of friends and family for 32 years. The study found that if a person you consider a friend becomes obese, your own chances of becoming obese rises by 57%. Among mutual friends, the effect is even stronger, with chances increasing 171%.9 The authors suggest that this social network effect carries over to a range of other health behaviours. The power of your example within your social network can positively affect your friends and family, yielding broader benefits beyond your own physical and mental health.

Another important social and environmental factor to consider is your support group, and how you offer support to your family, friends and co-workers. So far, the tenants of health we have written about cover matters which are entirely within our control. We can't always choose the people close to us (or at least, not easily), but we can control how we act toward them, and this example, as in the social network effect, can be a powerful contributor to the way your support circle affects you. Acknowledging that we are all susceptible to injuries or ailments at some point, it is important that we take a look at how we personally, and as a society, address 'low severity' mental illness. For example, if we recognise that the earlier medicalisation of mental illness has created the illusion that we are not equipped to help a "mentally ill person" we can make that fundamental shift and realise that we are all equipped to help an injured person in the same way as we are equipped to help a person with a sprained ankle.

Personal Management and effectiveness Personal management refers to how 22 | BRIEF OCTOBER 2016

we manage through the events or circumstances in our life. We are familiar with concepts like reactivity versus proactiveness, optimism versus pessimism, and organised versus unprepared.

These are life skills and vital personal characteristics not just for career progression and performance, but for addressing the various challenges one has on their plate at any point in time with grace and aplomb. In many ways strong personal management skills allow us to rise above the irritating and menial aspects of life without being clouded, drained, or tied down by them. Personal management gets us out of the rut and allows us to experience the utterly empowering feeling of making progress in our life.

The two key elements of personal management are: •

Organisation and Time management – placing yourself in control of the pace of tasks which fall on your plate and properly managing the expectations of others in relation to deadlines.

•

Mood/State management – knowing how to tap into the best emotional state to tackle a given task. Knowing when to push hard because you are in the right state for it, and when to pull back because you are not.

Most of this is quite well known, and if we were all purely rational beings, then it is likely that there would not be problems with the abuse of any of these substances. The truth is that these substances are frequently a coping mechanism used to alleviate pressure in another area of a person's life. Getting clean of substance abuse will certainly help you decrease your risk of falling victim to mental illness but the potential for relapse remains if the underlying drivers are not addressed. To achieve a more permanent outcome, this is where the help of a specialist organisation can be very effective. Organisations like Quitline (for smoking) and Holyoake (drug and alcohol counselling) have proven to be very effective in addressing these underlying factors.

Mental health and physical health work hand in glove, and the more we practice the habits which are the tenants of physical wellness, the more we reinforce the foundations of mental health.

Practicing these habits is very much within our control, which means our mental health is also largely within our control.

NOTES: 1.

For instance, the World Health Organisation has long been forecasting an explosion of mental illness, with estimates such as: •

by the year 2020, depression will be the secondleading cause of disability throughout the world, trailing only ischemic heart disease (World Health Organisation, 1996); and

•

by 2030, mental illness will be the number 1 cause of lost work time (World Health Organisation, 2008).

Tips to improve personal management •

•

•

•

Use a time management system. It doesn't matter which one, just as long as it's effective and easy for you, personally, to stick to.

Be aware of your natural/first response to circumstances. Practice mindfulness, seeking to consider your responses more carefully before you act.

Establish a support network or avenue to receive help when needed.

Especially useful in the workplace when you can delegate or ask a colleague for assistance.

Take time to work on the overall state of your body and mind, like exercise, or reading or just relaxing.

The Killers – drugs, smoking and alcohol Avoiding the killers, or at least minimising exposure for general health is obvious.

The link with mental health is also well established. Studies abound of links between alcohol abuse, smoking and drug use, particularly long-term, and diminished stress management capability, heightened anxiety, depression, and extreme moods, including paranoia, aggression, and hallucinations.

World Health Organisation. (1996). The Global Burden of Disease: A Comprehensive Assessment of Mortality and Disability from Diseases, Injuries and Risk Factors in 1990 and Projected to 2020. Geneva: World Health Organisation.

World Health Organisation. (2008). Global Burden of Disease: 2004 update. Geneva: World Health Organisation.

2.

Stephenson, C. P., Karanges, E., & McGregor, I. S. (2013). Trends in the utilisation of psychotropic medications in Australia from 2000 to 2011. Aust NZ J Psychiatry, Jan:47(1), 74-87.

3.

Cosgrove, L., Krimsky, S., Vijayaraghavan, M., & Schneider, L. (2006). Financial ties between DSM-IV Panel Members and the Pharmaceutical Industry.

Psychotherapy and Psychosomatics, 75, 154-160.

4.

British Psychological Society. (2011). Response to the American Psychiatric Association: DSM-5 Development.

Leicester: British Psychological Society.

5.

Mead, G. E., Morley, W., Campbell, C. A., McMurdo, M., & Lawlor, D. (2008). Exercise for depression. Cochrane Database of Systematic Reviews, 4 (CD004366).

6.

Wipfli, B., Rethorst, C., & Landers, D. (2008). Anxiolytic effects of exercise: A meta-analysis of randomised trials and dose-response analysis". Journal of Sport & Exercise Psychology, 30, 392-410.

7.

Cho, H. J., Lavretsky, H., Olmstead, R., Levin, M. J., Oxman, M. N., & Irwin, M. R. (2008, Dec). Sleep Disturbance and Depression Recurrence in CommunityDwelling Older Adults: A Prospective Study. American Journal of Psychiatry, 165(12), 1543-50.

8.

Armon, G. (2009). Do burnout and insomnia predict each other's levels of change over time independently of the job demand control–support (JDC–S) model? Stress and Health, 25, 333-342.

9.

Christakis, N. A., & Fowler, J. H. (2007). The spread of obesity in a large social network over 32 years. N Eng J Med, 357, 370-379.

LEXUS CORPORATE PROGRAMME Lexus represents an incomparable driving experience, and the Lexus Corporate Programme builds upon this by providing a service uniquely tailored to our corporate customers, with exclusive corporate benefits offered to The Law Society of Western Australia members across the entire Lexus range, including luxury hatch, sedans, coupes and SUVs. In addition to the great benefits of the Programme, The Law Society of Western Australia members can enjoy Preferential Corporate Pricing, an offering that rewards your important achievements.

LEXUS CORPORATE PROGRAMME BENEFITS: • Preferential Corporate Pricing1 • 3 year/60,000kms complimentary servicing2 • Reduced delivery fee of $995 (ex GST) • Priority ordering and allocation • Encore Privileges Programme, including: – Service loan cars or complimentary pick-up/drop-off during servicing – Lexus DriveCare, providing 24 hour roadside assistance – ‘Beyond by Lexus’ magazine

lexus.com.au/services/corporate To access the Lexus Corporate Programme please contact your nearest Dealer (lexus.com.au/contact/dealers) or dedicated Lexus Corporate Sales Manager: Nataliya Yavtushenko e. nataliya.yavtushenko@lexus.com.au m. 0477 006 738 1. Conditions apply. See your Lexus dealer for further details.

2. Complimentary scheduled servicing expires at 3 years or 60,000kms from the date of first registration, whichever occurs first. Conditions apply. See your Lexus dealer for further details.

23

Speech from Ceremonial Welcome to Supreme Court for the Hon Justice Banks-Smith Friday, 22 July 2016, Supreme Court of Western Australia, Stirling Gardens Elizabeth Needham President, the Law Society of Western Australia

May it please the Court.

Women Lawyers of Western Australia.

It is my privilege to appear today on behalf of the legal profession of Western Australia, through the Law Society, to welcome Her Honour Justice BanksSmith to the Bench of this Honourable Court.

Your Honour was nominated by both men and women with whom you worked directly and who admired you for Your Honour's support of them, your tenacity and ability to live what you expected of others around you.

As we have already heard from the Honourable Chief Justice and the Attorney-General, your Honour has enjoyed a very distinguished career, the experiences from which will no doubt stand Your Honour in good stead for the next phase of Your Honour's life.

Your Honour recognised the need for and benefited from the push by you and many other women in the profession to be able to work flexibly – something that the success of which has since benefitted individuals (both men and women in the profession) as well as legal practices. By having and properly utilising flexible work practices, legal practices ensure that valuable employees and team members are not lost and are able to function to the best of their abilities.

In 1991, very shortly after arriving in Western Australia, Your Honour joined the Law Society and you have been an active and contributing member to the Society and thus the profession and the Western Australian community ever since.

Your Honour has served with distinction on the Law Society's Ethics Committee, whilst also graciously passing on Your Honour's significant knowledge to fellow practitioners, through the Law Society's Continuing Professional Development programme.

Your substantive law presentations for the Law Society have centred around commercial law and have most recently including Your Honour's presentation on property law at our Law Summer School this year, and a presentation entitled "Distressed Directors – dealing with Directors' mistakes".

Although looking at Your Honour's list of cases – the Bell litigation, Sons of Gwalia, the Raine Square Development and most recently the misleading conduct case against the maker of a popular pain relief medication – perhaps it should have been more appropriately entitled "Dealing with Directors' mistakes – how to make distressed Directors" which seems a likely consequence of them learning Your Honour was part of the legal team opposing them.

In 2009, the same year Your Honour joined the Independent Bar, Your Honour was awarded Senior Woman Lawyer by

24 | BRIEF OCTOBER 2016

For Your Honour, this meant that, with the strategic use of the latest technology whilst taming it so it was your servant and you were not its slave, Your Honour was able to prioritise and ensure you attained the all important and yet so difficult to achieve, work-life balance.

For those of us here who have had the pleasure of working with or sharing Chambers with you we know that this, in particular meant managing the demands of legal practice whilst ensuring time for family and the importance to Your Honour of still being able to immerse yourself in the lives of your two beloved sons, Sam and Dominic.

In 2013, Your Honour was appointed Senior Counsel – one of three women appointed that year, lifting the total number of female silks in Western Australia from three to six out of 51. With Your Honour's appointment we now return to three female silks in practice.

This serves to highlight the difficulty the profession faces with so many women not remaining past approximately seven years in practice or choosing not to return to practice following childbirth. We, the men and women of the legal profession, need to find ways to retain women in the profession; otherwise I fear that achieving parity in our profession will take longer

than the anticipated 117 years most recently reported at the 2015 World Economic Forum.

Your Honour has done much to support and inspire the next generation of legal practitioners and women in the business world by: •

Mentoring junior practitioners;

•

Being part of Women in Leadership symposiums and forums;

•

Tutoring and lecturing at UWA;

•

For a time being part of the Professional Development Committee of the Legal Practice Board;

•

Being part of the Advisory Board of Notre Dame University; and

•

By being part of the coaching team at the Law Society's Practical Advocacy course for Junior practitioners.

So Your Honour's appointment is both celebrated and mourned.

Mourned: •

By women at the depletion of senior counsel in the ranks of their leaders;

•

By the juniors, men and women who you have mentored – something very evident at your farewell from Chambers where you were surrounded by members of the junior bar who you have supported and inspired; and

•

By your instructors.

But also Celebrated by all those same people and many more besides for both an appointment richly deserved and for the added diversity your appointment brings.

Your Honour's appointment now enables you to make a very significant contribution to the administration of justice in Western Australia, one which I have no doubt you will execute with all of the skill and ability that has marked your life on this side of the Bar table.

May it please the Court.

Why volunteer?

Susanah Vindedzis Associate to the Hon Justice Newnes

Many Australians choose to give their time to the community through volunteering. A 2014 survey carried out by the Australian Bureau of Statistics found that in the previous 12 months, 31% of Australians aged 15 years and over had participated in voluntary work.1 The figure was slightly higher for Western Australia, with 34.2% of people volunteering.2 In the 12 months before the survey, volunteers in Australia had contributed 743 million hours of unpaid work.3 In 2012-13, the value of volunteer services to non-profit organisations in Australia was calculated at $17.3 billion.4 The social benefits of volunteering are more difficult to quantify. Volunteering benefits both the recipients of volunteerprovided services and the community more broadly. It may also have many benefits for the volunteers themselves.

Five years ago, when I was a second year law student, I applied to become a volunteer at Samaritans, a not-for-profit organisation that runs a telephone service providing emotional support to those in crisis. After undergoing their selection and training programme, I was accepted as a volunteer and now do a shift on the telephones each week. In this article, I intend to discuss volunteering in the context of my experience at Samaritans.

Samaritans began in England in 1953, and has been operating in Western Australia since 1967. Samaritans' mission is to provide confidential, non-judgmental emotional support to callers, in the belief that supporting people to explore their emotions can alleviate despair and suicidal feelings. Samaritans' telephone line is entirely staffed by volunteers, who provide a 'listening ear' to anyone in need.

In Australia, Samaritans has centres in Perth and Launceston.

Volunteering provides an opportunity to give back to the community by helping others. This is what motivates many people to volunteer. In a survey carried out by Volunteering Australia in 2011, the two things that volunteers reported they valued most about their volunteering experience were the difference they make to the community and the sense of purpose volunteering gives them.5 Being a

Samaritans volunteer can be challenging, and not every call ends on a positive note.

Sometimes I feel helpless at my inability to change the caller's situation, and it can be devastating when a call ends with the caller continuing to experience suicidal thoughts. Nonetheless, I believe that the Samaritans service is worthwhile and is helpful to many people. The positive feeling of ending a call knowing that the caller is calmer, or has resolved an issue that was troubling them, more than compensates for the challenges of the work.

An important benefit of volunteering is its ability to build empathy and an understanding of the challenges faced by others. Empathy is the cornerstone of the Samaritans service. Being a Samaritans volunteer has given me insight into the depths of sadness, loneliness and despair that many people in our community experience on a daily basis. It is very humbling to be trusted with another person's thoughts and feelings at a time of great distress, and it is impossible not to be affected as a result. It has altered my perspective on life, and has helped me to become more aware of the difficulties other people may be experiencing.

Although volunteering may be challenging at times, research indicates that it can promote mental health, increase well-being, improve life satisfaction and reduce stress.6 Two reasons for this may be the positive effect of contributing to the community, and the opportunity to meet and spend time with other volunteers. In a 2010 survey by Volunteering Australia, 83% of volunteer respondents said that their work as a volunteer had increased their sense of belonging to the community.7 The results of the survey suggest that volunteering can reduce feelings of isolation and contribute to social inclusion.8 Samaritans has a community of caring and friendly volunteers, who come from all different backgrounds and professions. There is a strong focus on supporting each other, particularly in the aftermath of difficult calls. Becoming part of the Samaritans community has been a highlight of my volunteering experience. I have met many

kind and interesting people and I always look forward to spending time with other volunteers when I am on shift.

On a more pragmatic level, volunteering can be positive for career development: some volunteer activities provide networking opportunities, and employers may look favourably upon applicants who volunteer. It can also provide opportunities for training and personal development, allowing volunteers to develop a broader skill set, which can be useful both at work and in life in general.

Samaritans provides its volunteers with rigorous and extensive training that focusses on active listening. I have found the listening skills I learned at Samaritans to be useful in both my personal and professional life. I am also now a member of the Samaritans committee of management, which is providing me with a new set of challenges and opportunities for development.

My volunteering experience at Samaritans has been challenging at times, but very rewarding. It has provided an opportunity to contribute to the community, and has had a positive impact on my life in many ways. Samaritans has been operating in Western Australia for almost 50 years, and over that time, has had approximately 1,500 volunteers. I feel privileged to be one of those volunteers. I would encourage everyone who feels they can make a contribution to become involved by volunteering in an area of interest.

NOTES 1.

Australian Bureau of Statistics, General Social Survey 2014 (29 June 2015) <http://www.abs.gov.au/ausstats/ abs@.nsf/mf/4159.0>.

2.

Ibid.

3.

Ibid.

4.

Australian Bureau of Statistics, Australian National Accounts: Non-Profit Institutions Satellite Account, 2012-13 (28 August 2015) <http://www.abs.gov.au/ ausstats/abs@.nsf/mf/5256.0>.

5.

Volunteering Australia, 2011 National Survey of Volunteering Issues <http://www.volunteeringaustralia. org/wp-content/files_mf/1377045635VANSVI2011.pdf>, 9.

6.

Dr Rachel Casiday et al, Volunteering and Health: What Impact Does it Really Have? Final Report to Volunteering England (1 July 2008) <http://www.ivr.org.uk/images/ stories/news-item-attachments/volunteering_health_ impact_full_report1.pdf>.

7.

Volunteering Australia, National Survey of Volunteering Issues 2010 <http://www.volunteeringaustralia.org/wpcontent/files_mf/1377045662VANSVI2010.pdf>, 12.

8.

Ibid.

25

Disclosure of mental illness and implications for your practising certificate This article has been reduced in length from its original format Libby Fulham Deputy Executive Director, Legal Practice Board of Western Australia

Practitioners have an obligation to disclose the existence of a mental illness that may affect their ability to carry out the requirements of legal practice.

There is often a reluctance to disclose the existence of a mental illness, which seems to arise from the perceived stigma attached to the disclosure and the potential consequences of that disclosure.

The complexity surrounding the assessment of fitness and capacity to practise in the face of an existing mental illness is not a matter taken lightly by the Legal Practice Board (Board). However, the Board has the role of assessing that capacity in determining if the person is a fit and proper person to hold a local practising certificate.

One of the Board's overarching statutory responsibilities is to protect the public by ensuring legal services are provided by practitioners who are fit and proper to do so. The Court of Appeal in Skerritt v Legal Practice Board of Western Australia noted that depression that causes neglect of clients, or causes a person to act in an inappropriate way, could be relevant to fitness.1 Matters pertaining to a person's fitness warrant further enquiry.2 The Board's role in protecting the public from practitioners not mentally stable to handle a client's affairs, and trust money, is not designed to be punitive, but protective. The Board's enquiry into a practitioner's diagnosis and treatment of mental illness should not be seen as a deterrent to obtaining that assistance.

To that extent, in the knowledge that a practitioner is acting responsibly, and managing a medical condition, the Board is more likely to take a co-operative role in that management.

DISCLOSURE REQUIREMENTS

3

The Legal Profession Act 2008 (LPA) requires that an applicant for the grant or renewal of a local practising certificate must be a fit and proper person to hold a local practising certificate. The application must be in the approved form,4 which requires the applicant to disclose matters 26 | BRIEF OCTOBER 2016

that may affect the applicant's eligibility for the grant or renewal of a local practising certificate or that may affect whether the applicant is a fit and proper person to hold a practising certificate.5 In addition, rule 3 of the Legal Profession Rules 2009 requires an applicant to provide information and documents relating to that issue. Those matters include suitability (see section 8(1) of the LPA) and other matters relevant to whether the person is a fit and proper person (see section 38(2) of the LPA), and show cause events (see section 61 of the LPA).

A person is required to disclose any matter that might be relevant to the Board's consideration of whether the applicant is of good fame and character and is a fit and proper person to hold a local practising certificate. A person's capacity to engage in legal practice is specifically identified as a "suitability matter" in section 8(1)(m) of the LPA in the following terms: "whether the person is currently unable to carry out the inherent requirements of practice as an Australian legal practitioner".6 The Board will consider whether a person has the present capacity to carry out the tasks of a legal practitioner. At common law, the principle is as follows: To be a fit and proper person for admission to the legal profession an applicant must possess the capacity to make the judgments necessary to meet appropriate professional standards in legal practice or otherwise "discharge the important and grave responsibilities of being a barrister and solicitor".7 Furthermore, the Board may also take into account any other matters relating to the person that it considers appropriate.8 Any such matters must therefore be disclosed by the applicant, including any physical impairment, mental illness or addiction. In the event of such disclosure, it may be prudent to provide a medical report from an appropriately-qualified medical practitioner.

The confidentiality of any personal

or medical evidence disclosed to the Board by or on behalf of a person will be maintained.

SUMMING UP The Board's role in assessing the suitability of an applicant to hold a practising certificate is designed to protect the public.

Disclosure of a mental illness or other matter that may affect the applicant's fitness to practise must be disclosed.

The disclosure will not of itself determine that a practitioner is not a fit and proper person to hold a practising certificate. The illness is not a mark on character, or an indication of weakness. However, nondisclosure may indicate a lack of honesty and candour, and a failure to address the reasonable and relevant enquiries of the Board may lead to an adverse assessment of fitness.

NOTES 1.

Skerritt v Legal Practice Board of Western Australia [2004] WASCA 28 at [44] â&#x20AC;&#x201C; [45].

2.

Skerritt v Legal Practice Board of Western Australia [2004] WASCA 28 at [48].

3.

See Disclosure Guidelines published on the Board's website found at www.lpbwa.org.au.

4.

Legal Profession Act 2008 section 43(1)(a).

5.

Legal Profession Act 2008 section 43(3).

6.

Legal Profession Act 2008 section 8(1)(m).

7.

Frugtniet v Board of Examiners [2002] VSC 140 per Pagone J.

8.

Legal Profession Act 2008 section 38(2)(f).

CURRENT MARKET SNAPSHOT KBE Human Capital is Western Australia’s leading Legal and Accounting Recruitment firm. Our team has long established relationships with national/international and boutique law firms and our aim is always to provide WA’s lawyers with an unrivalled level of knowledge and exceptional level of service. We are currently working on numerous exclusive briefs to source high calibre lawyers with 2 years’ PAE through to Equity/Salaried Partners, with some of our most recent opportunities listed below.

M&A Opportunities – Melbourne firm seeking Perth merger • Commercial Litigation and Insolvency firm.

We are currently advising a Melbourne-based Commercial Litigation and Insolvency firm to assist them in completing a merger with a Perth firm. The Principal has a top-tier background and has been operating the firm for over 5 years.

They would ideally like to speak with Perth-based teams who may be interested in exploring merger options.

Salaried/Equity Partnership Opportunities • Partner – Construction Litigation. Top-tier international firm seeks an established Construction Litigation Partner to head up the WA practice. Leverage an extensive blue chip client base and transition the firm’s national networks.

Full Equity Partnership on offer, providing drawings of $1.3m - $1.6m.

• Partner – Commercial Law. A recently established one Partner practice seeks a second Partner to assist in rapidly building up the firm. With three staff in total and an annual fee base of $1m $1.2m, the Partner is seeking a senior lawyer with a fee base of $200k+ to better service their existing client/referral networks and drive business development activities with a vision to growing into a mid-tier over time.

• Partner – Corporate/Commercial. A rapidly growing Australian firm and long term client of KBE Human Capital is seeking an experienced Partner to establish a Corporate and Commercial Group in WA. The firm has a strong reputation and has grown to become a leader in the Australian legal market, with a focus on advising public, large private, and highly respected SME businesses.

• Partner – Environment and Planning. This is a new opportunity for an experienced Environment and Planning Partner to join and lead the E&P practice of an established Commercial Law firm.

• Partner – Head of Family Law. A leading suburban firm seeks a senior lawyer to join as the Head of Practice in building and leading the Family Law team. The practice attracts a significant volume of high quality work with a loyal referral base of accountants and financial planners, and no fee base is required to take on this leadership position. Innovative Partnership that continues to experience growth in both revenue and profit.

• Partners – Insolvency/Litigation. Several opportunities have arisen for experienced Insolvency Partners to join national/international and boutique law firms as either a Partner or Head of Practice in further building capabilities across both front end Insolvency and related Litigation matters. Transportable fee bases of $250k+ required.

• Family Lawyers. KBE Human Capital is currently working on multiple exclusive briefs. We are interested in speaking with Family Law practitioners with 3+ years’ PAE. Our clients include leading national, full service WA firms and long established boutique firms who are looking to add high calibre lawyers to their teams.

• Partner – Litigation. Join a rapidly growing multi-disciplinary firm as a Partner and Head of Litigation. The firm completes a range of matters in the Supreme and District Courts, as well as advising clients in relation to Litigation spanning multiple international jurisdictions. This is a unique opportunity for an established Partner or Senior Associate/Special Counsel who is looking to step into a Partner role in the very near team. No fee base required with the ability to buy into the firm within 12 months.

• In-House Counsel – Corporate/Commercial Lawyer. 2-6 years’ PAE. Join a highly collegiate team of lawyers and take on an important role providing a range of Corporate/Commercial law and general advice to key stakeholders within the organisation’s diversified company portfolio.

The successful candidate will have experience advising in relation to Corporate/ASIC/ASX compliance issues and a working knowledge of the Corporations Act, with the ability to advise decision makers with a high level of autonomy.

• Partner – Tax and Tax Litigation. A high profile international firm is seeking a leading Tax Partner to develop/lead the Tax Practice in Western Australia, and replicate the firm’s success on the east coast. You will bring an established contact network to the firm, with the ability to manage junior lawyers and rapidly build up a fee base from the firm’s existing client network.

• Insolvency Litigation Lawyer. 5-8+ years’ PAE with the option to step into a leadership role and lead the practice over time. Work alongside two top-tier Partners in this break away boutique firm with well-established referral sources throughout the key Insolvency accounting teams.

• Partner – Workplace Relations. Leadership role within a national team to replace a retiring Partner.

Lead the strategic development of the practice and oversee a small team, advising listed and large private companies. Transportable fee base of $150k+ required.

Junior to Mid-Level Roles • Banking and Finance Lawyers for two toptier firms. KBE Human Capital is working with several leading Banking and Finance teams to secure B&F Lawyers with 3-7 years’ PAE. With opportunities at both national and international firms, the successful candidates will have experience from top-tier/international firms dealing with complex transactions, with an interest in mining and energy project financing across Australia and various emerging markets.

• Business Development Manager. KBE Human Capital has been briefed exclusively by a Professional Services firm to secure a talented Business Development Manager. This busy role would suit a junior to mid-level lawyer seeking a career change, or an experienced Business Development professional with an interest in the Legal/Accounting space.

• Corporate Lawyers for three international firms.

2-4 years’ PAE and 4-9 years’ PAE to join three of Perth’s leading Corporate/M&A teams. These client facing roles will provide the successful candidates with high levels of responsibility and extensive client contact. You will be comfortable advising senior stakeholders and dealing with boards, company secretaries, in-house counsel, regulatory bodies and managing a significant deal flow.

Chris Bates

Maryann McKenna

Managing Director

Principal Consultant

M: 0411 645 984 E: chris@kbehumancapital.com.au

M: 0423 867 110 E: maryann@kbehumancapital.com.au

• Litigation Lawyers for national and international top-tier firms. Opportunities for junior and mid-level Litigation Lawyers to join progressive national/international firms. Both teams are seeking lawyers with 2-6 years’ PAE and experience in mining Litigation and some exposure to Insolvency.

• Property Lawyers for national and international firms. 2-4 years’ PAE and 5-8+ years’ PAE. Opportunities to join a national and international firm, both of which continue to grow in the current market. Advise private and government clients throughout the real estate lifecycle, including environmental and planning issues, development projects, disposals developments and related leasing work.

• Tax Lawyer for international firm. Opportunity for a Senior Associate/Special Counsel to lead the Tax Advisory/Litigation practice for the WA office of a leading international firm. You will work closely with Partners from the Sydney/ Melbourne offices to leverage long term client relationships in rapidly building up a fee base.

• Workplace Relations Lawyer to join a high profile mid-tier practice. Opportunity for a Senior Associate to step into a leadership role and manage a team of junior lawyers whilst overseeing the strategic direction of key matters. Joining a highly functional and supportive senior management team, you will represent listed and large private clients across the full spectrum of Workplace Relations matters. Fee base of $150k+ required.

If you are interested in having a confidential discussion about the above positions or looking for more comprehensive market advice, please contact Chris Bates or Maryann McKenna.

KBE Human Capital P: 08 6467 7889 A: 1322 Hay Street, West Perth 6005 W: kbehumancapital.com.au

Speech by Chief Judge Stephen Thackray on the occasion of the 40th Anniversary of the Family Court of Western Australia Government House Ballroom, Friday, 15 July 2016 The Hon Justice Stephen Thackray Chief Judge of the Family Court of Western Australia

In 1975 each state in Australia was presented by the Whitlam Government with the opportunity to establish its own State Family Court to deal with the modern Family Law Act. Our State Government determined that we would have our own court with the capacity to administer both state and federal law, thus setting us apart from every other state in the country. The wisdom of that decision was quickly demonstrated, as Western Australia was able to deal with the new system in an efficient way, which crashed through the jurisdictional difficulties that beset the Family Court of Australia from the outset.

This is therefore an entirely appropriate occasion to recall the astuteness of Sir Charles Court and his government; the then Attorney General, Ian Medcalf; the Solicitor General, Ronald Wilson; and Senator Peter Durack, who spoke on behalf of the Commonwealth Government at the opening ceremony of the Court, and after whom the new Family Court building has been named.

The 1970s were exciting times for many and worrying times for some, as Australia moved into a more progressive era in which we, as a society, abandoned our long-established system of fault and retribution-based divorce, and moved into a new era driven by respect for divorcing couples, the best interests of children, and justice and equity in the division of property.

A great deal of water has gone under the bridge, and our modern Family Court now grapples with challenges not even thought of in 1976. I have in mind in particular the great variety of modern family constellations, the revolution in technology and communication, the ease of international movement of children and the complexities of modern commercial life. All of these have impacted enormously on the work of the Family Court.

We could not have responded to all of these challenges if we did not have the 28 | BRIEF OCTOBER 2016

support of the community organisations which provide counselling and mediation services, and a local legal profession which has a culture of collaboration and settlement and, in more recent times, has strongly embraced mediation-style conferencing.

The Family Court of Western Australia opened its doors for business on 1 June 1976, a little over 40 years ago today.

At that time, the current president of the Family Law Practitioners' Association was yet to be born. The current Principal Registrar was in Grade 6 in Primary School. I was at university studying family law, because it was a good unit to take in 1976 as there were no cases to read.

Our family law tutor, Professor Ian McCall, jumped ship mid-year to become one of the inaugural judges of the Court, alongside the first Chief Judge, Alan Barblett, although in those days his Honour was very democratically called the "Chairman of Judges". Working alongside them was Dan Connor, who was very soon joined by Serge Ferrier and David Anderson.

The observant ones will note that there were five judges and all of them were male. Indeed, the times were such that Chief Justice Elizabeth Evatt was shooed away by a court officer when she attempted to join the official party at the opening ceremony. It took a long time, but this gender inequality was rectified when we became the first court in Australia to have a majority of women judges, including the greatly missed Carolyn Martin, who would have loved to have been at this party tonight – indeed at any party!

Serge came back as a Deputy Registrar and successfully ran conciliation conferences in the smoke-filled rooms at 45 St Georges Terrace. Serge was keen on being cremated as he said he wanted to "light up one last time". We are especially delighted that Serge's widow, Evi Ferrier, is here tonight.

Sadly, Alan Barblett also passed away in 2012. Mrs Pat Barblett AM has written to say that she is greatly disappointed she cannot be here tonight as she is overseas, but she vividly remembers when Alan was asked to set up the new court. As Pat said, to have the brief to set up a court is a once-in-a-lifetime opportunity, and Alan went about the task with tremendous enthusiasm and energy. She went on to say, correctly, that the court that he and the other judges established was one that was the envy of the rest of the country.

Ian McCall, who succeeded Alan as the second and very-learned Chief Judge, was keen to be here tonight, but at age 89 is unable to attend due to his frail health. But, of course, we are delighted that one of the original five judges, David Anderson, is here, looking as sprightly as ever at age 87.

His presence provides us not only with a direct link to the early days of our Court, but also to the days when David Anderson first joined the profession in Perth when there were just three Supreme Court judges, and when there was no District Court and no Family Court. As Justice Anderson said at his welcome ceremony, he had clearly joined a "growth industry", since by then there were seven Supreme Court judges, six District Court judges and five Family Court judges.

Dan Connor died suddenly in office in 1991, aged just 59. He was a much-loved judge, who enjoyed teasing an entire generation of young family lawyers.

Sadly for us, while the Supreme Court now has 20 judges and the District Court has 28 judges, we at the Family Court still have only five!

Serge Ferrier passed away in 1996 and was cremated in a coffin painted as a Marlborough cigarette box. This was entirely fitting, as after his retirement,

The population of Western Australia in 1976 had fairly recently passed the 1 million mark. We now have a population in the region of 2.6 million. The ABS

projections tell us that in another 40 years, the population of our State will be somewhere in the range of 5 million to 7 million people. At current rates of growth, or should I say lack thereof, we will have one Family Court judge for each 1 million people. I guess all this goes to show is that where you have an Attorney General in the room, you are likely to have a Chief Judge asking for resources!

Luckily, however, I believe we have a very sympathetic Attorney General.

In preparing for tonight, I went looking for the first annual report of the Court, but the earliest one I could find was from 1987. In that report, Alan Barblett drew attention to the fact that the court staff were having to deal with 162 lodgments every day.

Our staff now deal with 372 every day. In 1986, they were seeing 90 customers a day at the counter. We now see 200. And back in 1986, they were dealing with 95 phone calls a day. We now handle 150, and the numbers would be a lot higher were it not for the fact we now have to maintain a website which has 15,000 hits very week.

The Family Court of Western Australia has achieved a great deal in its first 40 years. Many of our achievements can be credited to the great benefits associated with having our own State Court. For those of you who are interested in the detail, I refer you to my article in the Family Law edition of Brief magazine, published last month in recognition of our 40th birthday.

But can I just mention what I consider are three of our major achievements: •

First, our engagement with local service providers and government agencies, which has established us as a leader in Australia in collaboration and information exchange.

•

Secondly, our innovations in a multidisciplinary approach to decision

making in cases involving children in which we combine the expertise of the judiciary and our Family Consultants.

•

Thirdly, we have without doubt the most coherent family law system in Australia, with all the judges and magistrates working together in one court, under a common leadership, to ensure the most efficient use of the limited resources.

Alan Barblett concluded his remarks on the opening of the Court in 1976 by saying, "We understand what we have to do, what is expected of us. At this stage it would be foolish to prophesy.

All we can say, and we say this with all our heart, is we will do our best".

Tonight, we recognise the efforts of the judges, magistrates, registrars and Family Consultants, who have all done their best as we have taken on an ever increasing, and ever more complex, workload.

Whilst as a matter of law a court is constituted by its judges, as a matter of fact most of the work is done by those who assist them. I refer here not just to the associates and court officers, but to those working on the counter and behind the scenes in the registry, in management and in the counselling service. I am delighted that so many of our staff and former staff are here tonight to join in this celebration. I especially want to thank you and your colleagues for the efforts that you have made over the last 40 years to assist us, and to assist the hundreds of thousands of clients who have passed through our doors.

I also wish to acknowledge the members of the legal profession who, for the last 40 years, have made their contribution to the efficient operation of the Court. I have been at the Court for almost half of its life and have encountered nothing other than goodwill and generous assistance from the Family Law Practitioners' Association and its Presidents and members. Your

Bequests Help Save Cats’ Lives As a charity, Cat Haven relies heavily on the kind donations and bequests of West Australians. We are WA’s premier cat welfare organisation, accepting over 6500 cats a year and rehoming as many as possible.

We can assure your clients that their cat will be looked after and rehomed if they are left behind if a bequest is

support of the Court has never wavered, even as we jointly struggle to understand and apply the Family Law Act, which had 80 pages in 1976 but now runs to 700 pages.

It is also important we recognise the assistance we have had from successive governments. This Court has faced some challenging moments in its history, and sadly some of the most challenging have been in more recent times, as we struggled at one point with three of our five judges unable to work due to serious medical issues. The support we received, then and subsequently, from government has been outstanding, and has assisted us to avert what otherwise would have been catastrophic consequences.

So I thank you Mr Attorney and your predecessors for your support. It does, of course, remain the case that we started out with five judges and we still have five, but I believe I have mentioned that already!

The German philosopher Schopenhauer wrote that the first 40 years of life give us the text, but the next 30 years supply the commentary on it. However true this might be for us mere mortals, it will not be true of the Family Court of Western Australia. We are a dynamic institution and all of us who serve it, or work with it in the community, will continue to write the text for an institution that I think will find the next 40 years even more difficult than the last.

I conclude by thanking the Family Law Practitioners' Association for jointly hosting this party with the Court, and I would particularly like to thank your President, Nicole Croft, and my Chambers Administrator, Kathryn Mayze, for all of the hard work that has been done to turn this into what I hope will be a very enjoyable evening.

Thank you and enjoy the night.

Please Donate, Adopt Foster, Bequeath, Volunteer

made to Cat Haven. By suggesting and guiding your clients on how to bequeath a gift, you will also be providing much needed support for the homeless cats of Perth.

For more information or a brochure, go to www.cathaven.com.au or call Chandra Woodley on 9442 3600.

29

THE ESSENTIAL MEMBERSHIP FOR THE LEGAL PROFESSION Supporting mental health, wellbeing and the retention of lawyers in the legal professional

Supporting the current and next generation of lawyers Through the co-ordination and promotion of: • Grad-Match, a resume clearing house service for graduates seeking employment • Mentoring programmes for practitioners admitted for fewer than five years and law students • Regional employment opportunities via our Job Board • Locum Register – to connect law practices with lawyers available for locum or temporary work • A Find a Lawyer service available to anyone in the community to find legal practitioners in a particular area of law • Practical Advocacy seminars

Promoting equal opportunity in the profession Through: • Arranging CPD seminars on topics of unconscious bias and flexible work practices • Supporting our joint Law Society and Women Lawyers; Indigenous Legal Issues and Human Rights and Equal Opportunities Committees to encourage, support and advance the interests of diversity and equality in the profession • The recommendations and initiatives based on the Law Council of Australia's National Attrition and Re-engagement Study Report and the Women Lawyers WA 2014 Gender Bias Report • Endorsing the Law Council of Australia's equitable briefing policy for the promotion and career progression of women at the Independent Bar • Co-ordinating a mentoring programme for Aboriginal law students

For more information please visit lawsocietywa.asn.au or call (08) 9324 8600

Focusing on mental health and wellbeing support services Through: • LawCare (WA) - an assistance programme that provides online resources and complimentary counselling sessions • Arranging CPD seminars on topics of mental health and wellbeing issues • Promotion of guidelines for flexible work practices • Providing on leave Law Society membership for study, carers, maternity and paternity leave. Members maintain networking and CPD benefits while on leave • Co-ordination of complimentary yoga and pilates classes for members provided by HBF • Promotion of member privilege partner 'HBF's discount of up to 23% off insurance for members

Supporting the profession in advisory and advocacy roles Through: • Facilitating access to assistance on ethical issues through the Senior Advisors Panel • Arranging Ethics on Friday CPD seminars • Facilitating access to assistance for unprofessional conduct or professional misconduct complaints/prosecutions through the Practitioners Advice Referral Service • Arranging CPD seminars dedicated to the unique issues faced by sole practitioners and small practices • Facilitating accreditation for mediators and arbitrators • Co-ordination of accreditation for Family Law Specialists • Providing access to a list of Independent Lawyers to execute Anton Piller orders • Professional resources relating to costs, template forms and protocol guidelines • The Professional Standards Scheme

Fire Proofing Ourselves against Burning Out from our Clients1 David Kernohan Chief Executive Officer, Mental Health Law Centre (WA) Inc.

In the recent release of the film Jungle Book, Kaa the snake, finding Mowgli alone in the jungle, slithers up to him, assuring him he will be safe in her embrace. She hypnotises him telling him stories while silently wrapping her coils around him as she prepares to eat him.

For many of us in the legal profession, mental health issues creep up on us while we tell ourselves stories we are okay. We assure ourselves it is because of the current work load or because of the complex case we are dealing with and once it is completed, we will be fine.

Except, like Mowgli we fail to see what is really happening to our mental health.

We fail to see we are losing perspective; our sense of enjoyment is being squeezed out of us by the pressure we are under and our humour is becoming cynical and caustic.

The majority of lawyers begin to practise law with high hopes and great determination, a belief in their ability to "wield the sword" of justice and bring clarity, direction and good outcomes for their clients. (Of course, for many, it is also a profession they choose for its prestige and potential income generation.) Practitioners with a few years' experience have generally learnt the wisdom that often our ability and desire to do good is not necessarily sufficient. Clients rarely come with neatly packaged legal problems. They present with the complexities and complications of their lives; their idiosyncratic views of justice, their anger fed by insecurities and their expectation not only will we agree with their view of justice but we should achieve it for them so all the wrongs in their lives can be finally put right.

As much as we may like to think law gives us the ability to stand above or at least apart from the grubby reality of human emotions, the fact is law is conducted in the midst of relationships with other players. Relationships between lawyers and regulators; lawyers 32 | BRIEF OCTOBER 2016

and witnesses; lawyers and the judiciary, lawyers and other professionals, and importantly lawyers and clients. The law is as much, perhaps more, about engaging with other people as it is about applying theories and facts.2 As a result of this relational nature we are not immune from the stress of dealing with people's situations particularly when we are practising in highly conflictual areas such as family and criminal law.

This stress can come from a number of sources, for example constantly dealing with difficult clients; continually dealing with complex problems for which there is often no or little resolution and managing people who are in a highly emotional state as well as the pressure of meeting billable targets that have no relationship to the complexities of our clients situation. The accumulation of this stress places us at risk of burnout.

Burnout develops as an inadequate response to these chronic interpersonal stressors and is characterised by an overwhelming exhaustion or feeling that we have no emotional resources left to give anyone; a sense of detachment from our job and a combination of feeling overloaded and having limited support in our role.3 Basically we do not want to hear any more problems from our clients and we no longer have a sense of satisfaction or accomplishment in our work.

There are a number of reasons why lawyers can be pre-disposed to burn out.

There is a failure to fully understand the relational nature of law. This is particularly evident in law schools where students are taught to read cases, to cite authorities and solve problems.

Law students enter the legal profession devoid of many skills that are taught in other professions, such as medicine and psychology where there is an acknowledgment of the importance of the client relationship.

There is no attention given to teaching

communication skills or reflective practices that will provide students with the skill to maintain professional boundaries and use emotional intelligence effectively. Teaching law students' skills in these areas is as equally important as teaching them skills in applying the law to problems.

Another aspect that predisposes lawyers to burnout is the negative bias of law.

John Briton the former Queensland Legal Services Commissioner said "thinking as a lawyer is fundamentally negative. It is critical, pessimistic and depersonalising and it is damaging because it is usually conveyed and understood as a new and superior way of thinking rather than an important but strictly limited legal tool."4 He uses the term pessimistic in the sense of risk averse, seeing potential problems and preparing for the worst outcome. While these are important skills for a lawyer to have, when our mindset has been trained to look for problems and we are dealing with clients who have multiple and complex problems the risk is we can lose perspective and our outlook on our life becomes pessimistic.

When we start to see our lives through the prism of problems or potential problems we are at risk of unhappiness and depression.5 The culture of the practice of law also predisposes lawyers to burnout, particularly given the work overload, role ambiguity and limited support that many lawyers experience. To thrive as individuals, we need to feel we are competent in what we do, that we have some autonomy over our work and that we have constructive relationships with our fellow colleagues.6 Within the early years of their legal practice many lawyers have little voice or control over their work, it is critiqued and changed so there is little sense of competence and often they feel quite isolated and alone from colleagues.7 Left untreated, burnout can easily

become entrenched and ultimately lead to depression. The costs to the legal profession and to the lives of lawyers and their families have been well documented.8 Given the risk factors how do we fire proof ourselves against burning out?

Mowgli is saved from Kaa by the bear Baloo who is passing by and becomes Mowgli's friend. Friendships and a sense of connectedness are vital to our mental health.9 Our friendships help guard against the feeling of isolation and being alone that develops when we are burning out and/or depressed.

Men in particular often find it difficult to develop and maintain close friendships.

Men tend to have 'mates' with whom they drink and banter, but friends with whom they are honest and whose advice they trust are few. Men can be afraid of appearing weak or needy and the perception of men as having all the answers to life's problems means they are not prepared to invest the time and energy to develop close, trusting friendships. Men often look to their wives or partners to provide emotional support and when these relationships falter and break they are left without supportive friendships. The outcome is a greater sense of isolation and aloneness that leaves men vulnerable to burning out and feeling disengaged and alienated from their lives. Men and women alike need friends whom we trust and who by their presence and interest in our lives assist us to re-engage with life again.

As well as the importance of relationships we need to manage our expectations of ourselves and what we can reasonably achieve for clients. It is easy to develop superman/superwoman lawyer complexes, to set ourselves unrealistic goals of what we can do.

As I have indicated, law is problem orientated. Within psychology and related fields there are different orientations that can provide assistance to lawyers in dealing with difficult clients.

Two of these orientations are strength based theories and resilience which are based on the premise all people have some level of resilience and have strengths they utilise in their daily life.

This applies equally to your client whom you think is living the most chaotic and disorganised life and appears not to have any constructive strengths or skills.

Learning to communicate with clients from a different orientation such as strength based theory is important for two reasons. Firstly, it allows you the legal practitioner to concentrate on your skills of solving legal problems.

"For many of us in the legal profession, mental health issues creep up on us while we tell ourselves stories we are okay."

Secondly, it allows you to maintain your boundaries and not be overwhelmed by the complexities of the clients' lives.

Once you have dealt with your clients' legal problems, their lives will continue as they had before you helped them.

As a lawyer you may think your clients' skills or strengths are not effective in managing their lives. However you owe it to your clients to allow them the dignity to live their lives in the manner they choose, even if you have concerns or disagree with their choice.

Investing in relationships, managing our expectations of ourselves and what we can achieve for our clients help us guard against burning out.

Given that burnout is characterised by a lack of satisfaction in our work, it is also important to revert to and reflect on those intrinsic goals that led us to law in the first place.10 Before the long hours and the grind of six-minute billing and stress blurred our vision and sapped our energy what was the motivation that led us to law school?

The desire to assist people, to embrace intellectual challenges, to improve aspects of society, to demonstrate excellence? It is about reflecting, rediscovering and re-committing ourselves to the intrinsic goals that led us to a legal career will assist us in recovering a sense of satisfaction in our work.

We are all at risk of burning out and we have all worked with or met people who are burnt out. The important thing is not to allow ourselves to be hypnotised into thinking we are all right but to develop reflective practices that will enable us to stay engaged in the important work we were called to do.

NOTES 1.

In this article I am concentrating on the lawyer's relationship with her/his clients and how this relationship can contribute to a lawyer experiencing burn out.

2.

Perry, J. E. (2008 : Vol 58). Thinking like a Professional.

Journal of Legal Education, 164.

3.

Grant J Devilly, R. W. (2009:43). Vicarious trauma, secondary traumatic stress or simply burnout? Effect of trauma therapy on mental health professionals.

Australian and New Zealand Journal of Psychiatry, 375-387.

4.

Briton, J. (2009). Lawyers, Emotional Distress and Regulation. Bar Association of Queensland Annual Conference, (p. 4). Queensland.

5.

Daniel S Bowling, I. (2015:73). Lawyers and their Elusive Pursuit of Happiness: Does it Matter? Duke Forum for Law & Social Change, 37-52.

6.

Rogers, N. S. (Vol 40 No 2). Stress, Anxiety and Depression in Law Students: How Student Behaviours Affect Student Wellbeing. Monash University Law Review, 564 - 587.

7.

Martin Seligman, P. V. (2001). Why Lawyers are Unhappy. Cardozo Law Review, 57.

8.

Kendall, D. C. (2011). Report on Psychological Distress and Depression in the Legal Profession. Perth.

9.

Rogers, N. S. (Vol 40 No 2). Stress, Anxiety and Depression in Law Students: How Student Behaviours Affect Student Wellbeing. Monash University Law Review, 574.

10.

Daniel S Bowling, I. (2015:73). Lawyers and their Elusive Pursuit of Happiness: Does it Matter? Duke Forum for Law & Social Change, 37-52.

33

'Best practice' mental health initiatives in commercial legal practices Sam Witton Herbert Smith Freehills

The poor psychological health of lawyers has been widely reported. Further, it has been identified that the characteristics of the practice of law and the working environment of law firms may contribute to the poor psychological health of partners and staff within those firms.

However, no studies have reported on the initiatives that have been adopted by firms to address poor psychological health.

Earlier this year, I undertook a study as part of a Masters in Occupational Health and Safety to identify the initiatives that law firms have implemented.

THE RESEARCH PROJECT To identify how commercial firms in Perth are responding to mental health concerns a qualitative case study was conducted. The development of the interview tool was informed by a literature review1 and the Tristan Jepson Memorial Foundation Guidelines (Guidelines)2.

The identity of participating firms was anonymised. Participants were recruited by approaching the Human Resources departments of fourteen firms within Perth. A response was received from six firms. There was an equal split between those firms that were signatories to the Guidelines and those that were not.

RESULTS Each of the participant firms comprises in excess of 90 partners and staff. The smallest office has just over 90 people and the largest, just short of 300.

A number of initiatives were broadly consistent between the firms. These similarities can be summarised as follows: •

Each of the firms have developed organisational values, communicated them to partners and staff and developed a mechanism to

34 | BRIEF OCTOBER 2016

measure performance against these values (either directly or through the competency framework).

•

Each of the firms has a number of initiatives in place to foster engagement both internally and with the wider community.

•

All firms have an employee assistance programme (EAP).

•

All firms (with the exception of one) have developed flexible work practices.

Interestingly, none of the firms has undertaken a specific assessment of psychological risks within its Perth office. This finding is at odds with the recommendations of Michalak who argues that primary risk management strategies should be adopted to address psychological risks as opposed to relying on 'post exposure' risk interventions3.

Further, it ignores the recommendation of Kelk et al. that "people working to reduce the level of psychological distress in the … work setting must maintain a focus on the known risk factors for psychological distress in their setting"4 (emphasis added).

AREAS OF BEST PRACTICE While there are similarities between the initiatives adopted by the firms in certain areas, there are also 'stand outs' that may represent 'best practice'. These are discussed below.

Active engagement with EAP One of the firms engaged very actively with its EAP provider. It indicated that one of the 'lessons' that it had learnt was that the EAP provider needed to be 'legitimised' within the organisation.

It found the best way of achieving this 'legitimacy' was to have consistency so that the same person from the provider came to the firm a number of times and for that person to have a connection to

the legal profession.

If the EAP is to be used by firms as the primary psychological support tool it might be suggested that finding a way to legitimise the use of the EAP is of vital importance. This is particularly the case given the level of cynicism associated with EAPs identified by Chan et al.5 and the risk identified by Kelk at al. that those in need of support will not engage with an EAP. Senior personnel talking about their experiences Another firm discussed the fact that a very senior partner openly discussed their own mental health history within the firm and more broadly. The sharing of such stories was identified by Kelk et al. as important to "challenge prejudicial attitudes" towards mental ill health. While not every firm can identify a person with a story they are willing to share, if they are able to it is likely that this would have a powerful impact on others.

Fatigue management guidelines Long hours of work are identified as a particular psychological risk characteristic for lawyers in the studies of Campbell and Charlesworth6, Chan et al.7 and Michalak8. Further, Bergin and Jimmieson9 identify in particular the pressures caused by time billing targets. Against this background, it might be suggested that management of fatigue risks caused by consistently long hours is required. Only two of the firms surveyed have developed fatigue management guidelines for partners and staff on what acceptable practices look like. There is the potential for such guidelines to be implemented more broadly.

Use of time away from work as a reward The study of Chan et al. specifically

recognises that better health and wellbeing outcomes can be achieved by "creating a work culture that is sensitive to personal and family needs"10. Further, the authors of that study identified that allowing people time off work could be an effective way of managing work stress. It is therefore interesting to note that only two firms specifically identified that they used time away from work as a reward for staff performance. It might be suggested that a more widespread use of additional leave may assist partners and staff to manage psychological wellbeing.

Secondment to community legal centre "Low decision latitude" of, in particular, junior lawyers was identified by Seligman et al.11 as a specific factor that contributed to poor mental health outcomes. The initiative of one firm to send all of its graduates to a community legal centre where they have greater client contact may assist in improving the decision making latitude of these lawyers.

Having identified the similarities between initiatives and those that might be considered to be best practice, it is interesting to note a significant area of the Guidelines not addressed by any of the participant firms. This is discussed below.

CIVILITY AND RESPECT Michalak identifies that lawyers are more likely that other professionals to be subject to incivility. It is therefore surprising that none of the firms had initiatives aimed directly at addressing this issue. All of the firms stated that civility between partners and staff was not an issue and that, in the case of one firm, its other initiatives responded to this issue by embedding how to have "compassionate conversations" into its partner and staff development programmes. However, given the myriad types of incivility in the workplace that have been identified by Schilpzand, Pater, and Erez13 and the scale of the issue reported by Michalak, the issue should not be ignored.

CONCLUSION

Transparent reward and recognition The studies of Chan et al. and Michalak identify the importance of appropriate reward and recognition. The calculation of, in particular, bonus pay across the firms differed. Firm D specifically identified its attempts to make its reward structure transparent. This is important so that there is a clear correlation between effort in a role and reward12.

However, in a large part the calculation relied on hours billed. In light of the findings of Bergin and Jimmieson, overreliance on hourly targets to calculate remuneration potentially has attendant risks to psychological wellbeing.

It is possible to distil a number of common themes to the initiatives that have been implemented. These include the development of organisational values, fostering engagement, providing psychological supports and involving staff in key decisions.

Initiatives in relation to engagement with the EAP provider, senior personnel sharing their personal stories, the development of fatigue management guidelines, rewarding staff with time away from work, providing secondment opportunities to junior lawyers to community based organisations and transparent reward and recognition structures are initiatives that might be

considered to be 'best practice'.

Whether any of the initiatives work to improve psychological wellbeing is an area for future research that, for the benefit of the profession should be progressed as a matter of urgency.

NOTES 1.

Interested readers may contact Sam at sam.witton@ hsf.com for a copy of the full research report on which this paper is based.

2.

Tristan Jepson Memorial Foundation. (2014).

Psychological Wellbeing: Best Practice Guidelines for the Legal Profession.

3.

Michalak, R. T. (2015). Causes and Consequences of Work-Related Psychosocial Risk Exposure: A Comparative Investigation of Organisational Context, Employee Attitudes, Job Performance and Wellbeing in Lawyers and Non-Lawyer Professionals. P. P. Ltd. Retrieved from http://media.wix.com/ugd/a8d830_08e a2117408c4b3a9ae1b628f8d0d9ee.pdf.

4.

Kelk, N., Luscome, G., Medlow, S., & Hickie, I. (2009).

Courting the Blues: Attitudes towards depression in law students and lawyers. Sydney: Brain & Mind Research Institute: University of Sydney.

5.

Chan, J., Poynton, S., & Bruce, J. (2014). Lawyering Stress and Work Culture: An Australian Study.

University of New South Wales Law Journal, 37(3), 1062-1102.

6.

Campbell, I., & Charlesworth, S. (2012). Salaried lawyers and billable hours: a new perspective from the sociology of work. International Journal of the Legal Profession, 19(1), 89-122.

7.

Chan et al. (2014).

8.

Michalak, R. T. (2015).

9.

Bergin, A. J., & Jimmieson, N. L. (2014). Australian Lawyer Well-being: Workplace Demands, Resources and the Impact of Timebilling Targets. Psychiatry, Psychology and Law, 21(3), 427–441.

10.

Chan et al (2014).

11.

Seligman, M. E. P., Verkuil, P. R., & Kang, T. H. (2005).

Why Lawyers are Unhappy. Deakin Law Review 10(1), 49-66.

12.

Tristan Jepson Memorial Foundation. (2014).

13.

Schilpzand, P., Pater, I. E. D., & Erez, A. (2016).

Workplace incivility: A review of the literature and agenda for future research. Journal of Organizational Behavior, 37(S1), S57-S88.

The Dogs’ Refuge Home (WA) operates under a pro-life policy and relies on community support for funding.

E S TA B L I S H E D 1 9 3 5

Dog lovers can leave a lasting legacy By suggesting a bequest to the Dogs’ Refuge Home of WA, you can help your client leave a lasting legacy to support the caring and rehoming of lost and abandoned dogs in Perth.

We are one of WA’s oldest animal charities and operate a pro-life policy. Your clients can also be assured that we can make arrangements for their pet dogs to be cared for and re-homed.

For information, visit www.dogshome.org.au or request our Bequest brochure on 9381 8166. You can also contact Chris Osborn, who is a Lawyer for any advice on 9481 2040; 0400 206 105 or chris.osborn@whlaw.com.au Our recommended wording is: “I leave...to the Dogs’ Refuge Home (WA) Inc of 30 Lemnos St, Shenton Park, WA for its general purposes and the receipt of its President, Treasurer or Secretary shall be a sufficient discharge to my Trustees”.

35

What crisis? How planning can alleviate the pain of workplace traumas This article was first published in the Australasian Law Management Journal

Rachel Clements Director of Psychological Services, Centre for Corporate Health

Dealing with traumatic events affecting law firms and their employees requires planning – before and after such incidents, writes Rachel Clements.

At recent HR Minds1 events in Melbourne and Sydney, panellists from several major Australian law firms shared their honest and reflective accounts of managing a traumatic workplace event. While the nature of the incidents varied dramatically, the panellists' experiences provided the audience with practical insights and valuable guidance on managing the human elements of a crisis. This article discusses these insights and delivers information on best practice and evidence-based trauma-management approaches.

DEFINING TRAUMA What is a traumatic event? Phoenix Australia, formerly the Australian Centre for Posttraumatic Mental Health, defines it as "any event that involves experiencing or witnessing actual or threatened death, serious injury, or sexual violence". Panellists described an array of events fitting this definition, including a murder occurring outside a firm, a suicide at work, management of the Lindt Café siege in Sydney for staff who had connections with the hostages, and the long-term illness of a senior employee and its impact on the firm and its staff. Although these events involved diverse situations, similar lessons emerged from the panellists.

organisational perspective, how to respond to a workplace trauma.

However, a number of representatives commented that their firms adopted an educated and intuitive response to managing the trauma, which generally consisted of the following measures: •

•

KEY OBSERVATIONS Perhaps the over-arching message to emerge from the events is the importance of having a traumamanagement policy and procedures in place before an incident occurs.

Many panellists echoed the sentiment that their firms did not know, from an

36 | BRIEF OCTOBER 2016

with staff and stakeholders if possible by 'walking the floor', meeting with specific teams and prioritising the release of details to ensure that those who had suffered the greatest impact from the event were the first to be informed. The importance of consistent messaging was discussed, with firms having to communicate a firm-wide message involving interstate locations to ensure the same message was delivered to all staff;

•

establishing a trauma team whereby selected senior employees met and were given specific aspects of the trauma response to manage, including communicating the nature of the event to the firm (how, what and when); liaising with relevant family members, site management, security, emergency services, media and insurers; and arranging for onsite psychological support; taking the time for the trauma team (while in the midst of managing a crisis that required an immediate response) to meet and develop a plan of action; decide on key messages to be communicated to staff; determine the best method of delivery of the news, and prioritise key groups within the firm to whom to communicate; delivering the news face-to-face

•

providing regular, honest and timely communication updates to staff about the situation, even if there seemingly was not much news to communicate. Such regular communication was viewed as being vital to help manage anxiety reactions and minimise rumours (which can spread in the absence of regular communication);

•

partnering with a psychological service provider that is adept at managing psychological trauma.

While it was acknowledged that having a psychological service provider on-site was important, the timing of this required some

consideration. For example, often when people are first informed of a workplace trauma, they are in shock and disbelief and are not yet ready for counselling, whereas they may be more open to this assistance in the days following the news as reality starts to sink in; •

•

communicating to and supporting those who may not be currently working within the firm, such as those on maternity, sick or annual leave or secondment; connecting with those employees not coming in to work in the days following the incident. In some cases, they may be too distressed to work and require more immediate counselling support.

PSYCHOLOGICAL TRAUMA Best-practice initial response to trauma involves a process called psychological first aid, or PFA. This seeks to "reduce distress and attend to basic needs following a potentially traumatic event by providing simple interventions such as comfort, information, support and practical assistance".

The primary goal is to "enhance an individual's natural resilience and coping ability in the face of trauma".2 From an organisational perspective, PFA aims to address the following issues in response to a trauma: •

presenteeism and absenteeism

•

reduced productivity over time

•

turnover

•

morale

•

team functioning.

•

Following a traumatic event, it is important to initiate the following guidelines in order to mitigate any potential risk of increased distress for your employees:

making HR leaders available to talk to people and 'walk the floor' in the days following an event;

•

1. Make contact and engage people in group support, with the aim of responding to those involved in the event in a non-intrusive, helpful, and compassionate manner.

staggering psychological first-aid sessions over the ensuing days for people to attend so they can learn about reactions to trauma and how to best manage them;

•

providing a trauma fact sheet to ensure that people have reference material to review when they are ready to do so;

•

providing on-site one-on-one debriefing support for those in need; and

•

delivering individual follow-up support for those in need for up to six weeks after the trauma to ensure that symptoms of distress are reducing over time.

2. Gather information regarding the needs and concerns of people so that tailored PFA interventions can be provided.

3. Provide psycho-education about the nature of traumatic responses, normal reactions and what to expect in the immediate hours and days following trauma, as well as highlighting effective strategies to manage reactions.

4. Offer practical assistance, such as expectations regarding workload, alternate seating, or working arrangements.

5. Establish connections with social supports, such as the opportunity to engage in one-on-one debriefing assistance.

By adhering to the principles of PFA, the workplace should be able to support the needs of their employees through a difficult time, while also mitigating any potential risks that may arise in the future as a consequence of the trauma.

NOTES 1.

HR Minds is a group of HR professionals who, through their network, assist with the support and ongoing professional development for HR professionals in the legal sector.

Other best-practice actions include:

2.

Ref: Phoenix Australia.

•

ABOUT THE AUTHOR

ensuring the leadership team 'triages' those in need to ensure they support those closest to the trauma; those presenting with high levels of emotional distress; those who are known to have pre-existing vulnerabilities; and those with limited social support;

Rachel Clements is the director of psychological services at the Centre for Corporate Health, a boutique management and psychological consulting organisation based in Sydney. The centre specialises in helping organisations maximise their success by building individual and organisational resilience, which improves productivity, psychological health and overall wellbeing. www.cfch.com.au

SAVE THE DATE End of Year Celebration Wednesday, 7 December 2016 Lamont's Bishops House Catch up over drinks and canapés to finish 2016 with friends and colleagues.

Further details to be announced soon lawsocietywa.asn.au

37

Changes to the Office of State Revenue's Assessment Practices Paper presented at Law Society CPD Seminar on Tuesday 19th July, 2016

Nicki Suchenia Commissioner of State Revenue

ACKNOWLEDGEMENT The assistance of Chris McMahon, Acting Director Group 2, Office of State Revenue, in preparing this paper is gratefully acknowledged. Chris has played a key role in designing and implementing the changes discussed in the paper to improve duties assessment services. His professionalism, commitment and drive is very much appreciated.

INTRODUCTION As legal practitioners who draft and deal with written contracts for clients, Law Society members share common business process issues with State Revenue. The very nature of a written contract means our businesses are constrained by the inefficiencies of dealing with paper.

State Revenue's business direction has been focused for many years on moving duties assessment processes into the digital world.

Up until this month, State Revenue's systems development and business processes have concentrated on streamlining assessment services for routine conveyancing instruments.

Unless you or your firm practise in the area of property settlements, it is likely that most Law Society members have had little exposure to our online duties system, Revenue Online.

The introduction of Revenue Online in its current form enabled conveyancers to realise substantial dollar and time savings in running their businesses. State Revenue worked with the Australian Institute of Conveyances WA to codesign the lodgment and payment rules, the business processes and enhancements to Revenue Online to simplify the assessment and collection of conveyance duty revenue.

When Revenue Online was first introduced in 2008, voluntary takeup was very low, with only around 13 percent of approved transactions being 38 | BRIEF OCTOBER 2016

self-assessed. Following the co-design process with the AICWA, the new system went live in March 2011. The efficiency improvements made available to the conveyancing industry saw voluntary self-assessment take-up levels rise to above 70 percent by January 2013.

This has since improved to just under 85 percent following enhancements to introduce a third party web-portal, which allows related party transfers to be valued by the Valuer General and self-assessed by conveyancers using Revenue Online.

The success of self-assessment in the conveyancing industry stems in part from the nature of standard conveyancing documents. The vast percentage of contracts are produced on the standard REIWA template, which the Law Society plays a role in producing. While contract conditions can vary markedly, the standard form of conveyancing instruments simplifies the self-assessment process.

With some exceptions, the interaction that State Revenue has with Law Society members falls outside the realm of general conveyancing. While all contracts have similar elements, there is no template equivalent for other types of documents that are charged with duty under the Duties Act. This is something that we have analysed carefully in order to expand self-assessment using Revenue Online beyond routine conveyances.

ASSESSMENT DELAYS â&#x20AC;&#x201C; WHAT'S BEEN ACHIEVED Work-on-hand at State Revenue is measured in bundles, which are mostly lodged by agents in a manner that allows an assessment to correspond with a particular taxpayer's dealing.

In November 2012, the delayed assessing work-on-hand statistic showed that unactioned work was in the vicinity of 2,500 bundles.

To translate this into a time based metric, it meant that when lodged, a document could remain untouched in the storage compactus for around six to nine months before it was assigned to a suitably experienced officer to assess.

A further amount of outstanding work existed as "work-in-progress", with major delays being experienced in the assessment of complex documents, such as landholder and entity restructuring transactions, and direct acquisitions of complex business and mining transactions.

As the State's only tax collection agency, State Revenue has been able to streamline revenue collection through Revenue Online so that approximately $1 billion per annum, or just over half of the State's transfer duty revenue, is recognised within two months of the transaction arising.

A high take up of Revenue Online resulted in a scalable assessment process that is not susceptible to internal resourcing fluctuations. At the same time, the high standard of the front counter assessing service has been maintained, allowing all routine documents to be assessed on average within four minutes of a customer arriving at the counter.

This has seen diminished resourcing capacity available to deal with the more difficult transactions that require staff with higher levels of expertise to assess.

These were taking unacceptably long periods to assess, causing varying difficulties for taxpayers and their agents alike.

While a portion of the taxpaying population tell us to "take as long as you like" or "we don't care how long it takes, we're in no hurry to pay", most taxpayers want to get the payment over and done with and move on. Assessment delays are clearly preventing this from occurring.

The other aspect of the work-onhand build up is one for Government,

and relates to the amount of duties revenue associated with unassessed documents in the compactus and on the desks of staff. Even just using a rough rule of thumb, the amount of revenue associated in the five square metres our compactus sits on easily makes it the most valuable property in Perth!

Unfortunately, at the moment a rough rule of thumb is all we can use to arrive at an estimate of the revenue associated with the unactioned work. This is because until the duty payable on each transaction is assessed, the associated revenue cannot be calculated.

At the end of 2012, State Revenue had identified some systemic issues that prevented us from moving forward to address the delays in the assessment of mid-complexity documents. These were: •

•

•

•

Lack of document profiling – At the time of lodgment, bundle details were registered by an administrative clerk to record basic lodging party and taxpayer names into the system. The document type was not identified and input into the system, meaning that we could not profile the number of each different type of document we had on hand. In order to assess the viability of improvement strategies, including the potential to build selfassessment capability based on a basic cost benefit analysis, we had to understand the profile of the work-on-hand at any point through the assessment process. Changes to the core system functionality were cost prohibitive. How could we profile the work to improve the analysis at a low cost?

Paper is highly inefficient and it breeds – The lodgment of paper documents for assessment encouraged the use of paper, as the document had to be transported around the office and the systems were built around keeping everything together on the bundle.

How could we bring the ancient concept of a written legal contract into the modern age and realise the efficiencies associated with electronic processing?

Bringing forward the revenue – Under normal accrual accounting principles, Government revenue is recognised at the point it is raised, not the point of collection. How could we improve the return to Government by bringing forward the point of assessment?

Capability development – Duties can be a complex area of the law.

Staff require significant training to

acquire the required knowledge to assess mid-complexity documents.

Our staff needed to have access to better training, and be regularly assessed against objective quality and output standards.

Bearing in mind Albert Einstein's definition of insanity, we couldn't keep doing the same thing we had been doing and expect the result to be different.

Our approach needed to change and go beyond the traditional short-term fixes that were not addressing the many underlying causes of the delays.

The first area that has been addressed is the delays in complex assessments being made. This has been achieved through a combination of improved legislative powers, particularly in relation to administration, valuation and assessment powers. Solving complex landholder and valuation issues take time, and the law as it previously existed created incentives to put forward unrealistic valuation arguments and delay the assessment of significant amounts of duty.

During 2012-13, State Revenue put forward a proposal to Government to address these issues. This was approved and amendments to the Duties and Taxation Administration Acts were passed to introduce interim assessment powers and valuation penalties. The Government also funded additional staff to assist in bringing forward the recognition of unassessed revenue as part of the 2012-13 Budget.

In the three financial years since introduction, the interim assessment powers have allowed over $550 million in landholder and transfer duty revenue to be brought forward. Importantly, the improved processes, combined with amendments in 2015 to clarify the treatment of mining information, have resulted in substantial improvement in the timeliness of assessments being issued on complex transactions.

The 2012-13 Budget also included funding for two additional positions to assist with the assessment of midcomplexity transactions. While this has brought forward the assessment of revenue of over $280 million since 201314, of itself the additional assessing resources did not substantially improve the outstanding work-on-hand situation.

However, following the addition of a further two assessing resources in 201516, the level of unactioned work-onhand has been reduced from 2,500 in November 2012 to just over 900 bundles at 1 July 2016.

The legislative reforms have gone a long way towards addressing the revenue

recognition problem and assisted in improving the budget bottom line from the Government's point of view.

They have also made substantial improvements in the assessment of the high complexity assessment operations at State Revenue, with the additional resourcing also reducing the levels of work-on-hand for mid-complexity documents, improving the turnaround time for these assessments.

ASSESSMENT DELAYS – WHAT'S STILL TO COME A number of longer term reforms will come to fruition in 2016 to deal with assessment delays. These changes have been steadily progressing since 2012 with a view to improving our midcomplexity duties assessment services.

CUSTOMER FEEDBACK Customer feedback has been an important source of information that has allowed State Revenue to gain momentum and priority to deal with duties assessment service issues. In particular, this feedback has allowed solutions to be framed that meet user expectations, reduce red tape, and offer efficiencies to agents and the general public that allow them to save time and money.

Importantly, feedback from the Law Society has been a key part of changes to assessment services now being introduced. This specifically includes feedback that we requested from the Society following a Friday Facts survey it conducted last year.

It also includes feedback on our performance issues from the 2015 Customer Perception Survey, which are briefly noted below.

State Revenue conducted its annual Customer Perception Survey in November 2015. In previous years, the survey results were heavily skewed towards payroll tax, as a result of being able to directly reach around 18,000 payroll tax clients via an electronic invitation.

In 2015, State Revenue was able to broaden the use of electronic invitations across all revenue and grants lines, delivering the most comprehensive feedback since the survey commenced in 2008.

As a result, non-payroll tax related responses increased from 6 percent in 2014 to 43 percent in 2015.

The responses can be broadly categorised as falling into two categories.

39

Category 1 – Quality of Service •

The major theme for this category of response across all revenue lines was about the time taken to return telephone calls and emails.

•

There were also a number of comments about improving the consistency of information provided and the capability of staff.

•

Comments about delays in issuing duties assessments represented almost half the verbatim comments from duties customers.

Category 2 – Website/Online Facilities •

•

Continuing comments were made regarding the website, saying it needs to be more user-friendly as navigation is difficult and information is hard to find.

There were also a number of comments made on the lack of payment options across tax lines, and that it would be preferable to receive duties or land tax assessment notices electronically.

While the overall satisfaction rates for payroll tax customers in 2015 remained steady with 82 percent of customers satisfied with the service received, the overall satisfaction rate fell from 89 percent in 2014 to 75 percent in 2015.

The broadening of the survey sample strongly contributed to the decrease in customer satisfaction levels, with nearly 48 percent of duties and land tax customers being dissatisfied with at least one area of customer service. This was not unexpected, particularly in relation to land tax, with one taxpayer telling us we were either courageous or stupid for running a survey right in the middle of land tax season!

On the topic of feedback, State Revenue also welcomes feedback on your positive experiences with our staff. The more we know about your positive experiences, the more we know we are on the right track as a customer service organisation.

If you are not familiar with our Customer Service Charter, I encourage you to visit State Revenue's website to view the charter and the monthly performance reports on how we measure up.

WHERE DO THE ASSESSMENT DELAYS COME FROM? As I mentioned earlier, comments about delays in issuing duties assessments represented almost half the verbatim comments from duties customers. So where are the delays?

Respondents who provided a written comment make it very clear the concerns with assessment delays sits squarely with non-routine transactions that are not approved for self-assessment and cannot be assessed over the counter.

Historically, State Revenue assesses lodgments in date order of receipt, with certain exceptions made for routine property transfers that are allocated to an assessor immediately following lodgment. Routine transactions include: •

offer and acceptances – residential, commercial and rural vacant land;

•

reductions in consideration;

•

refund applications;

•

routine transactions requiring valuation; and

•

routine exemptions or concessions, such as family court orders, exemptions for the transfer of the family home between spouses and transfers under a will.

Notwithstanding the timing, the increased response rate has provided a critical mass of feedback not previously available about our duties and land tax service delivery.

Of these transactions, only refund applications and transfers pursuant to family court orders or a will are not currently approved for self-assessment.

As a taxation authority, our customers may not always be satisfied with our products, but they have every right to expect customer service that meets the standards set out in our Customer Service Charter.

The complaints on assessment delays generally come from legal and accounting firms, and sometimes individual taxpayers. More often than not, the delays involve transactions that we classify as 'non-routine', which are transactions that:

Where this is not the case, State Revenue is keen to receive feedback.

The easiest way to do this is using our online feedback system, where all feedback is investigated and a written response provided within 21 days.

The feedback is also collated across the business, and used to progress continuous improvement initiatives aimed at providing better customer service.

40 | BRIEF OCTOBER 2016

•

involve time consuming or complex assessment; or

•

involve the exercise of discretion or judgment.

When you consider that State Revenue's Duties Branch has around 22 assessors who issued just over 44,000 assessments in 2014-15, as well as answered around 32,000 telephone

calls, processed refunds and set-up tax payment arrangements, it is not surprising that there is a degree of tension around deadlines from time-totime.

If you lodge a matter that is not immediately allocated to an assessor upon receipt, but instead goes to workon-hand, it is then dealt with in date of receipt order with all other matters assessed by the Duties Branch.

This includes transactions like: •

partnership dissolutions;

•

sales of business assets;

•

family farm exemption applications;

•

superannuation fund transactions,

•

deceased estates involving deeds of family arrangement;

•

winding-up of companies and unit trusts; and

•

declarations of trusts.

In terms of overall assessment performance, in 2014-15 the Duties Branch issued on average 2,400 delayed assessments each month with: •

90 percent issued within 60 days of lodgment; and

•

84 percent issued within 30 days of lodgment.

Unfortunately our performance drops off when we look at non-routine transactions in isolation with: •

around 30 percent of non-routine transactions assessed within 60 days; and

•

only 20 percent issued within 30 days of lodgment.

The numbers clearly support what our customers are telling us, (that is, it is taking State Revenue too long to assess non-routine transactions) and the effects are being felt by a broad segment of the tax paying public.

REVENUE ONLINE EXTENSIONS Like most organisations, State Revenue finds itself being asked to do more with the limited number of resources available, driving us to find more innovative solutions to deliver our services in a more efficient and effective manner.

In trying to drive efficiency in tax collection, we have to ensure that delivering our core business does not come at the expense of being accountable and transparent. We have made significant improvements over the last five years to explain decisions and improve the level of information provided

when assessments do not accord with expected outcomes.

To address customer feedback, State Revenue will be implementing a new online service strategy in 2016-17 to improve assessment times that cannot otherwise be achieved using current processes and existing staffing levels.

The Revenue Online system is central to the duties assessments reforms that will be delivered over the next 12 months.

REVENUE ONLINE 2011 – JULY 2016 The expansion of Revenue Online to midcomplexity documents is similar to how State Revenue addressed assessment delays for routine transactions that existed prior to 2011, which are recapped below.

In March 2011, the Duties Act was amended to simplify the lodgment and payment rules for duties transactions.

To coincide with the legislative changes, Revenue Online was enhanced to support an online lodgment process, with corresponding changes to payment arrangements that allowed duty to be collected at settlement for self assessed transactions, rather than having to be pre-paid prior to settlement occurring.

Today, nearly 85 percent of all routine contracts for sale are self-assessed, which is a significant improvement over 13 percent that were self-assessed prior to March 2011.

Since 2014, a Revenue Online agent can now complete a related party dealing requiring valuation by the Valuer General within 10 business days of lodgment, with some completed in as little as five days. There are substantial efficiencies compared to the 15 business days it takes to value and assess the transaction if it is lodged with State Revenue.

To put the success of Revenue Online into perspective, in 2015-16 there were 556 Revenue Online clients who selfassessed just under 61,000 transactions.

If you think back to before 2011, most of these documents would have been presented for immediate assessment over State Revenue's front counter, complete with packed service counters and more than a few frazzled agents trying to get their stamping completed in time for settlement.

In order to build a self-assessment capability into Revenue Online for mid-complexity transactions, we had to understand the volume of each transaction type being received at State Revenue. During 2013, we implemented an internal classification process using document management workflow that

allowed us to identify and track just under 50 different document types from the time of initial lodgment to assessment and payment.

Prior to this being introduced, State Revenue could only classify work types after assessments were issued, and even then data was more broadly classified based on assessment transaction codes, with no understanding of document complexity within a transaction type.

The document identification process, while still rudimentary and contingent on several manual inputs, has allowed us to track work volumes at a document level.

The classification of work has allowed State Revenue to identify the value proposition associated with building an online capability for non-routine document assessment. Feedback from industry bodies such as the Law Society has also assisted in the evaluation process.

Revenue Online has been enhanced from 11 July 2016 to accommodate self-assessment of a range of new transactions using a "Guided Assessment Process". The Guided Assessment Process will allow registered agents to assess: •

grants and surrenders of easements;

•

sales of WA business assets between arms-length parties;

•

no double duty endorsements of a declaration of trust pursuant to an existing Revenue Online assessment;

•

nominal assessments of duty on transfers to superannuation funds; and

•

nominal assessments of duty on the vesting of a discretionary trust.

With the exception of easements, these transactions are currently those where the parties may experience assessment delays due to the volume of lodgments, or the need for the matter to be allocated to a suitably experienced officer to assess.

A criticism of past self-assessment practices has been the lack of support available to assist agents in getting the process correct, potentially exposing them to penalties and otherwise increasing the risk to the agent.

The Guided Assessment Process has been designed to minimise risk to the agent, with the publication of an accompanying guide to assist Revenue Online users to determine if the transaction is eligible to be selfassessed.

The guide includes a checklist that can

be provided to the taxpayer to complete prior to the assessment being made, which will assist the agent to determine whether the transaction meets the criteria for self-assessment and complies with the relevant legislation.

The taxpayer checklist I referred to earlier will capture all of the information needed to complete the Revenue Online fields.

Most Law Society members will at some stage act on behalf of clients entering into these types of transactions, but unless your business involves property settlements, members are unlikely to be familiar with the features of Revenue Online.

To illustrate the increase in efficiencies on offer, State Revenue holds lodgments relating to applications for a nominal assessment of duty on the transfer of property to a superannuation fund lodged in April 2016 that are just now being allocated for assessment. While this timeframe is noticeably better than the timeframes that were being experienced when the Friday Facts survey was commissioned, the Guided Assessment Process will allow these types of documents to be assessed within a matter of minutes using Revenue Online.

In the time it takes a lodging party to prepare a submission and physically lodge a transaction with State Revenue, it can now be self-assessed and endorsed.

For those not familiar with Revenue Online, the endorsement process operates so that duty is payable by monthly return due on the 15th of each month. A transaction is included in a monthly return if the default payment period is exceeded, or by the Revenue Online agent printing an endorsement certificate.

Increasing the range of documents that can be self-assessed will allow State Revenue to redirect staff efforts to address assessment delays in the transactions that cannot be selfassessed.

From a customer service point of view, there should be no difference in service for a family waiting for an assessment as part of a deceased estate to one expecting a settlement of the new house they have purchased. At the moment, one takes an unacceptably long period of time to finalise and the other is immediate.

As part of the shift to online services, State Revenue is reviewing the prioritisation of its resources and assessment service model to more 41

efficiently apply its resources during 2016-17.

counter area will be relocated from the Plaza Level up to the 3rd floor of the QBE building.

FRONT COUNTER CHANGES From August 2016, State Revenue will no longer accept transactions that are approved for self-assessment for assessment over the public front counter when presented by a conveyancer or practitioner.

In addition, routine transactions of this type that are lodged for delayed assessment will no longer be allocated immediately for assessment, and will instead be assessed in date order of receipt. Effectively, this means that State Revenue treats the taxpayer waiting for a superannuation fund transfer in the same manner as a taxpayer waiting for their house to settle.

In relation to routine documents, as nearly 85 percent of these transactions are already being self-assessed, the impact on industry is relatively minimal and can be mitigated for a business by using Revenue Online.

A counter service will continue to be provided for routine transactions that are not approved for self-assessment.

A full counter service will continue to be offered to self-represented parties.

It is expected that the redirection of all approved routine transactions and selected non-routine transactions into Revenue Online will impact a small number of businesses who do not currently use Revenue Online. These impacts can be mitigated by using the self-assessment system, and State Revenue will work closely with the affected businesses to assist them in transitioning to self-assessment.

In the context of non-routine documents that can now be self-assessed, Law Society members who choose to use Revenue Online can expect substantial efficiency gains from using the Guided Assessment Process.

The extension of Revenue Online to these transactions will include training on how to use Revenue Online, and the ability to access voluntary Customer Assistance Programme visits in your work place. As always, there is information and how to videos available from the Department's website, and assistance from staff in the SelfAssessments Branch is only a telephone call away.

In 2016-17 State Revenue will also be undergoing a refurbishment of its premises. This is not expected to have any impact on our customers until around June 2017, when our front

42 | BRIEF OCTOBER 2016

ELECTRONIC LODGMENT PORTAL AND EXPANDED PAYMENT OPTIONS One of the biggest inefficiencies at State Revenue is the paper handling processes associated with the physical lodgment and movement of documents.

State Revenue has substantially progressed the development of an electronic lodgment portal for the majority of transactions that require assessment by the Commissioner.

The portal is designed to allow a Revenue Online agent to electronically lodge most transactions with State Revenue for assessment and payment of tax.

Using the portal you will be able to upload a scanned copy of the dutiable instrument and any supporting information for assessment by the Commissioner, while keeping the original document physically in your possession.

When preparing an electronic lodgment, Revenue Online will prompt you to include the supporting information required under the relevant Duties Information Requirement to allow the assessment to be made, reducing the delays associated with issuing a Requisition Notice when required information is not initially included. Nonlodgment of standard information is still one of the major contributing factors to delays in assessment processes.

The portal will also allow for the exchange of information, including the issue of non-standard requisition notices if required, responses to requisitions and the issue of the Duties Assessment Notice.

This deliverable will also include the option for all Duties Assessment Notices to be paid by B-PAY or credit card.

Once the assessment is paid, you will be able to download a Certificate of Duty from Revenue Online to attach to the document, at which point it becomes duty endorsed.

State Revenue will continue its discussions with the Law Society and other industry groups during the development stages, in recognition that the most successful systems are those that are co-designed with the end user.

More information will be made available as development progresses on the release date and the availability of customer training.

PUBLISHING AN ASSESSING STANDARD As noted earlier, around 90 percent of all lodgments are assessed within 60 days of receipt.

The usual response to that is "but what about the other 10 percent?" and "what about customers who enter into transactions that aren't approved for self-assessment?"

State Revenue's current practice of assessing transactions in order of receipt means that the Duties Branch is unable to advise when a document will be allocated for assessment. This is a major cause of frustration for lodging parties and taxpayers.

The online lodgment portal reform will have the added benefit of enhancing State Revenue's document handling processes to support the development and publication of an Assessing Standard in our Customer Service Charter from July 2017.

The Assessing Standard will provide certainty that all transactions lodged with State Revenue that are not approved for self-assessment will be allocated to an assessor within a set period of time.

WEBSITE REVIEW AND UPDATE Comments from the customer perception survey regarding the quality of State Revenue's website have resulted in a complete review of the website.

Comprehensive changes to the website were launched in June 2016. This reduced the number of pages from around 400 pages to less than 100 pages, and was done with input and feedback from the Law Society via the State Revenue Liaison Committee, and a number of individual customers.

This represents a significant investment to improve the user experience.

CONCLUSION In closing, the constructive manner the Law Society has engaged with State Revenue about duties service delays that have affected everyone recently is appreciated.

A large amount has already been achieved, and a significant programme of change is coming up in 2016-17 as we seek to move a paper based tax into an increasingly electronic world, with some exciting opportunities available to improve the services you provide to your clients.

So you want to a join a board?

A personal perspective from Amanda Kailis, Special Counsel, Gilchrist Connell

My journey as a director commenced in 2009. The Chair of the family company of which I am a member invited me to join the board as a non-executive director, and I agreed.

I had reviewed and analysed board decision making, collectively and individually, usually in the context of contested litigation. I had, however, no experience serving on a board.

So, in order to become board ready, I completed the Company Directors Course provided by the Australian Institute of Company Directors (AICD) in Sydney, where I was living at the time.

The facilitators of the Company Directors Course were of high calibre. So were the participants, who included former New South Wales government ministers, directors of public companies, charities and start-ups.

I completed the course and was now armed and ready to take on the corporate boardroom and all of its challenges. My career as a director, however, nearly ended before it began: the firm that I had recently joined had a policy of not allowing partners and solicitors to join commercial boards.

About the same time however, David Handley, the founding director of Sculpture by the Sea Incorporated asked if I would join the board of that organisation. Sculpture by the Sea is a national arts organisation that holds an annual exhibition in Cottesloe and Bondi, and they felt they needed another WA-based director. Since then I have also joined the board of St Andrews' Grammar, an independent school run under the auspices of the Hellenic Community of Western Australia. Finally, after some fluctuations in my own employment status, I was able to join the board of the family company, which had been the initial intention.

HOW TO JOIN A BOARD You are more likely to be offered a position on a board through your own personal networks. You can, however, promote and develop those networks by becoming involved in the AICD, business groups and arts organisations. It also

helps to let people know you are ready, willing and able to serve on a board.

If you join the board of a charity or notfor-profit organisation that relies on philanthropy or corporate sponsorship, it is likely you will be expected to make a financial contribution. This may be personally, or calling on your own networks. I found that if your cause is worthy, your networks will be willing to contribute donations in kind, attend fundraising events, or just make a tax deductible donation.

NOW YOU ARE ON A BOARD I have served on three widely different boards that have required different skill sets. The fundamentals are, however, the same: the financial viability of the organisation, its solvency and your obligation as a director to understand the finances of the organisation. Even if you serve on the board of a "not-for-profit" organisation, that does not mean it is "for loss". There will be steep learning curve during the initial period, where you have to learn about how that organisation functions, and what are the drivers of its performance and growth, as well as its revenue streams.

When you join a board you will want to become an effective member. For me, this has meant more upskilling. Apart from attending board meetings, and reading the papers, I also embarked on my own professional development, immersing myself in the relevant industry sector.

For example, I became a member of the Chamber of Arts and Culture WA, so I can have a better understanding of that sector in Perth. I also access the resources provided by AISWA (Association of Independent Schools WA), which includes attendance at their educational programmes and conferences provided for members of school boards. All this can be time consuming, particularly when also balancing a career with family obligations.

Each board on which I have served has been different, which is mainly due to the different personalities of the other board members. Those different personalities affect the dynamic of the board, and how it functions collectively.

The most effective board on which I have served has been where there was

a common sense of purpose and the members have a mutual respect for the contributions of each. As a result, that particular board has added value to that organisation which, after some initial scepticism and even opposition by the members of the association, has now been recognised by the members and other stakeholders. This has been a very rewarding experience.

As a lawyer you may be asked or invited to provide legal advice or insight. Resist.

Prior to joining any board I make it clear that I will not provide gratuitous legal advice. My fellow directors are accustomed to my reminder that whatever comments I make as an informed board member are not to be construed as legal advice.

The obvious reason is that you do not want to inadvertently expose yourself, or your firm, to a claim.

The other reason is that you have been invited to join a board for your general skills and insights. Your legal background is important. However, more value can be added by contributing to the collective decision-making process as an informed director, than by providing legal advice.

A situation recently arose when the benefits of not providing legal advice became apparent. The board needed some simple, and what I thought would be uncontroversial advice. I arranged for external legal advice to be provided, which became, quite unexpectedly, controversial with some of the members of the association. I was able to remain impartial and navigate the association towards a resolution, which I would not have been able to do had I provided the advice myself. Had I provided that advice, I would have become embroiled in the politics of the organisation, and my credibility as a director diminished.

Do not expect immediate financial rewards for you or your firm. But expect to meet a wide range of people drawn from different areas of the business and general community. I have had to draw on skills I did not know I possessed, and have also been forced to upskill myself where required. While it has been a lot of work and at times is quite stressful, it has been a rewarding experience.

43

2016 Practical Advocacy Weekend Alex Noonan Lawyer, Macdonald Rudder and member of the Law Society's Young Lawyers Committee

The Practical Advocacy Weekend continues to be one of the highlights in the Law Society's calendar.

The weekend provides a fantastic opportunity for young lawyers to learn from judges and members of the bar who provide valuable insights into being an advocate, and improving one's advocacy.

We thank our esteemed coaches: the Honourable Justice Mazza, the Honourable Justice Chaney, her Honour Judge Petrusa SC, her Honour Judge Davis, Karen Farley SC, Martin Cuerden SC, Paul Yovich SC, John Prior, Bettina Mangan, Laura Christian, Mara Barone, and Amanda Thackray.

The participants benefited greatly from the coaches' wealth of advocacy experience and insightful anecdotes

44 | BRIEF OCTOBER 2016

from their time as legal practitioners.

court more often.

Participants worked in small groups on legal scenarios based in a court setting. The participants received tailored feedback on their performances from the coaches, something typically not available in a court setting. Coaches also participated in some of the activities undertaken by participants to demonstrate how they would use their advanced advocacy skills to tackle the scenarios. A common thread throughout the weekend was that junior practitioners who wish to further develop their advocacy skills need to be given appropriate opportunities at work. This may mean that junior practitioners need to ask their supervisors to be allowed to appear in

The social occasions throughout the weekend also provided participants with opportunities to socialise with each other and the coaches in an informal setting. This served as a fun opportunity to promote collegiality in the profession.

Thank you to Law In Order for sponsoring this event, College of Law for the use of its lecterns, and the Law Society's Young Lawyers Committee volunteers for their time.

Sponsored by

Book Review Judicial Independence in Australia – Contemporary challenges, future directions Edited by: Rebecca Ananiam-Welsh and Jonathan Crowe Review by Pat Saraceni

Judicial Independence in Australia – Contemporary challenges, future directions is a collation of essays presented at the July 2015 conference hosted by the Centre for Public, International and Comparative Law in the TC Beirne School of Law, University of Queensland. The essays draw attention to interesting and topical issues concerning judicial independence, judicial appointments and tenure, judicial reasoning and extra-judicial activities.

The book is divided into six parts. The first part deals with the concept of judicial independence, with emphasis on the separation of powers, and human fallibility. The final essay in that part

provides a comparative perspective of advancements in judicial independence.

Part two considers judicial appointments and tenure of judges, including a look at judicial diversity. Part three of the text considers institutional integrity of Courts, with an emphasis on the Kable doctrine and what the learned authors call "Constitutional Silences", looking particularly at the absence of express words in both the State and Commonwealth Constitutions for a concept of separation powers at State level. Part four provides an interesting insight into judicial reasoning and looks at the dynamics of individual and collective judicial decisions. Part five looks at extra-judicial activities. Part six is titled "Courts in social context" and

considers what the authors call "political Judges", and the challenges of social media and judicial independence "in an Age of Terror".

The essays raise thought provoking and topical issues and give a valuable insight into the concept of judicial independence and how it operates in practice.

The book is a good resource for students and practitioners alike who want to gain a better understanding of judicial independence. The essays are readily digestible, well written and interesting. They will undoubtedly inspire further discussion on the topics considered.

Six new online seminars AVAILABLE NOW! Maintaining legal professional privilege as in-house counsel

Recent developments in Australian Consumer Law

Building disputes: trouble in the suburbs

From ‘handbrake to happiness’ to ‘trusted advisor’

Pleas in mitigation and restraining order essentials

In-house lawyers as shadow directors: managing and protecting your legal role

| Access CPD on your terms

P: (08) 9324 8600 | W: elearning.lawsocietywa.asn.au

45

Family Law Case Notes Robert Glade-Wright Former barrister and accredited family law specialist

Children – Full Court held that alternate weekends, special days and holidays amounted to "substantial and significant time" In Ulster & Viney [2016] FamCAFC 133 (28 July 2016) Ainslie-Wallace & Ryan JJ dismissed the father's appeal against Judge Bender's order allowing the mother to relocate from Melbourne 85km away to Gippsland where she obtained work. From separation the children spent alternate weekends and Thursday nights with the father and two hours with him on alternate Mondays to coincide with the children's piano lessons in which he was "keenly involved" ([43]) until the mother relocated two months later without notice. The father withheld the children, negotiating an interim order for six nights a fortnight (the mother returning to Melbourne), but at the final hearing a year later his time was limited to alternate weekends; alternate Fridays (after school to 7pm); special days (Jewish holidays) and school holidays.

While the whole court disagreed that "daily routine" under s65DAA(3) requires seeing the children every day (as argued for the father) the majority rejected his contention that the final order was not an order for "substantial and significant time". Strickland J dissented, saying (at [5]): It is beyond doubt that the time the children are to spend with the father is 'extremely limited' and pales in comparison with the … time they enjoyed with him prior to separation and under the interim orders. The magnitude of that change and its effect on the relationship between the children and the father is amply described by the family report writer … : ' ... Such a proposal entails the children moving from seeing [the father] six nights per fortnight to only two. This is a high magnitude change. The children and [the father] enjoy a strong … relationship which would be eroded and compromised if their time with him is reduced to such an extent. This would entail a significant loss for them which would not be in their interest.'

Murphy & Hogan JJ) allowed the wife's appeal against Judge Demack's order where the pool was $185,171, $165,493 of which was superannuation so that the parties were "effectively litigating over … $20,000" ([16]) due to a ruling that $64,467 held in a solicitor's trust account was not an asset but a debt payable to the husband's father in repayment of two loans he was found to have made to the husband during the marriage (secured by mortgages retrospectively). The Full Court (at [46][47]) examined evidentiary inconsistencies between husband and father and between advance terms and mortgages, saying (from [56]): … we do not regard it as sufficient to find that 'the loan was real and the interest properly sought' without making a finding as to the terms of the loan and the evidence accepted by her Honour which sustains that finding.

While … conversations between … husband and [father might have been] 'recorded ... with … great … particularity' in the [father's] affidavits it is not clear … how … inconsistencies between the accounts given by the [father] (many of which, inadmissibly, purport to give evidence of what was in the husband's mind … ) are dealt with. (…)

[58] … it is not to the point that the interest that '[the father] sought to enforce is a reasonable amount and that it is reasonable, given that he loaned this money in 2001/2002, that there be interest … owing'. ( … ) [60] Her Honour also does not address the fact that the husband (i.e. the borrower) does not … depose to the terms of the agreement … [or] to the rate of interest or how it might be calculated … ( … ) [62] ( … ) In essence, the wife asserted that the existence of the mortgages was a recent invention or that they were created so as to deny her a property settlement … That issue was not … 'neither here nor there' as her Honour found at [35]; it was central to the wife's case.

Property – Wife wins appeal against decision that advances secured by mortgages in favour of husband's father retrospectively were loans

Property – Not just and equitable to make a property order sought by husband's estate where "financially destitute" wife was in poor health with dependent adult children – Stanford applied

In Bircher and Anor [2016] FamCAFC 123 (15 July 2016) the Full Court (Strickland,

In Paxton [2016] FCCA 1689 (7 July 2016) a property application filed by the husband

46 | BRIEF OCTOBER 2016

who then died was continued by his estate under FLR 6.15(3). The wife sought to remain in the home. Judge Wilson said (at [6]): Both parties agreed that the … home would have to be sold if any division of property … were to be ordered. …

[T]the wife is in very poor health … financially destitute … has no apparent prospects of employment and the adult son of the marriage, himself mentally infirm, lives with the wife and she cares for him. Any sale of the … home will occasion very considerable hardship to the wife. Conversely, the husband is dead.

The Court also referred (at [18]) to the wife's evidence that her 29 year old daughter (who also lived with her) "suffered from … cerebral palsy … had learning difficulties … had not worked since leaving school and received social welfare benefits" and that "it was likely that her children would continue to depend upon her well into the future having regard to their physical and intellectual difficulties".

Judge Wilson at [34] cited Stanford (2012) 247 CLR 108 in which "[t]he High Court held that it had not been shown that, if the wife had not died, it would have been just and equitable to have made an order under s79" (relying on ss 79(2) and 79(8) (b)(ii)); also citing Bevan [2013] FamCAFC 116 in concluding that it was not just and equitable to make a property order. Applying Stanford, the Court said ([58]) that it was "wholly erroneous for Mr Paxton … as his late brother's personal representative to proceed … on the premise that the husband had (or Mr Paxton now has) the right to have the former matrimonial asset divided between the wife and the estate". The Court added ([65]) that "[i]n Stanford the court addressed the error made at first instance where the court did not take into account the consequences to the surviving spouse if a property settlement order was made".

Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, looseleaf and online subscription service. thefamilylawbook.com.au. He is assisted by accredited family law specialist Craig Nicol.

Young Lawyers Case Notes Compiled by volunteers coordinated by the Law Society's Young Lawyers Committee

Australian and New Zealand Bank v Manasseh [2016] WASCA 41

(a) the changed arrangements increased the guarantor's liability; and

This case concerns the interpretation of the terms of a guarantee entered into between the appellant and the respondent. The primary issue was whether the guarantee covered an exhaustive restatement of the loan facility entered into between the appellant and a third party borrower.

(b) the law or any relevant code of conduct states that the guarantor will not be liable for the increased liability except without the guarantor's consent.

The appellant, ANZ Bank and the respondent (as guarantor) entered into a guarantee (Guarantee) whereby the respondent guaranteed the obligations of a third party borrower under a loan facility arrangement.

The original loan facility was varied in 2007 and the respondent agreed to guarantee the variation (Existing Facility).

In November 2009 a further loan facility was entered into between the appellant and the borrower (2009 Facility).

The 2009 Facility: •

increased the facility limit for accrued unpaid interest;

•

extended the time for repayment;

•

allowed ANZ to charge extra fees to the borrower;

•

released various existing securities;

•

referred to new securities to be taken

by ANZ; and

•

restated and updated the general terms and conditions.

The respondent declined to guarantee the 2009 Facility.

The terms of the Guarantee provided that ANZ and the borrower could enter into 'new', 'changed' or 'replacement' arrangements in respect of the 'Guaranteed Arrangements', being the original loan facility and any other credit contract the guarantor agreed to in writing.

Any new or replacement guaranteed arrangements required the respondent's consent however if ANZ and the third party borrower entered into a changed arrangement that would be secured by the Guarantee without the guarantor's consent except where:

At first instance the trial judge held that the 2009 Facility was a 'new contract' that was not secured by the Guarantee and as such the Guarantee was not enforceable against the respondent.

The Court of Appeal dismissed the appeal and held that the Guarantee did not secure the 2009 Facility.

McLure P and Buss JA found that the 2009 Facility was a 'replacement' arrangement as it wholly rescinded or terminated the Existing Facility. McLure P and Buss JA considered the objective intention of the parties was for the 2009 Facility to substitute the Existing Facility and bring the Existing Facility to an end as the 2009 Facility restated the relevant terms and conditions (albeit with some changes) but did not incorporate the terms and conditions of the 2009 Facility.

Murphy JA found that the 2009 Facility was a variation of the Existing Facility as the facility was established, no new funds were to be advanced by ANZ and the 2009 Facility did not provide for the termination or rescission of the Existing Facility.

As such, the Guarantee was not enforceable against the respondent.

Author: Alison Cooper, Solicitor, AustAsia Legal

Bidvest Australia Ltd v Auzcorp Pty Ltd [2016] WASCA 129 In Bidvest Australia Ltd v Auzcorp Pty Ltd [2016] WASCA 129, Murphy JA granted a stay of inspection of documents pending an appeal against the order to give inspection. On 15 April 2016, Master Sanderson granted the respondent (Auzcorp) inspection of certain documents (disputed documents) (Auzcorp Pty Ltd v Bidvest Australia Ltd [2016] WASC 14). The appellant by this application sought a stay of inspection pending an appeal of the Master's decision.

The appeal grounds themselves are, for the most part, fairly uninteresting. The exception is appeal ground 1: that the Master erred in law by concluding that O 26 r16 of the Rules of the Supreme Court 1971 (RSC) did not empower him to vary orders made by the Registrar. The rule provides: Revocation and variation of orders Any order which has been made under this Order, including anorder made on appeal, may, on sufficient cause being shown, be revoked or varied by a subsequent order or direction of the Court made or given at or before the trial of the cause or matter in relation to which the original order was made.

The Master so concluded because of O60A r3, which empowers a registrar to refer proceedings to a judge or master and is an important case management tool used by the Court. The rule was amended in November 2015. On this basis (reasoned the Master), to grant to the order would be to undermine the case management process itself. In this sense, there is a very real conflict between the two Orders.

Ultimately, his Honour Murphy JA granted the stay for four reasons. First, the appeal, raising as it does issues of trade rivalry and confidentiality, would have been rendered nugatory if the stay was not granted. Secondly, there was a very real question falling for determination as to the proper construction of and interaction between O26 r16 and O60A r3. Thirdly, it was reasonably arguable that the parties were trade rivals or competitors. Finally, despite a question as to the timing of filing of the appeal, the prospect of leave was sufficiently open.

The appeal should be listed for hearing relatively soon, as the appeal books were due to be settled on Thursday, 4 August 2016. The decision (assuming leave is granted) should resolve an important point of procedure arising from the 2015 amendments to the RSC. Author: Benjamin Tomasi, Professional Assistant, State Solicitor's Office

47

Law Council Update FLAWED MANDATORY SENTENCING ELEMENT UNDERMINING IMPORTANT FIREARM MEASURES The Law Council of Australia is warning that the unnecessary inclusion of mandatory sentencing will undermine the credibility of the Federal Government's new firearms trafficking bill.

Law Council of Australia President, Stuart Clark AM, said mandatory sentencing was counterproductive and could lead to unintended consequences and unjust punishments.

The Law Council has been working in partnership with the legal profession, cyber security experts, and government to formulate the information initiative since it nominated cyber security as a key priority at the beginning of the year. Launch of the campaign is expected by the end of 2016.

Law Council of Australia President, Stuart Clark AM, said the legal profession needed to be particularly vigilant about the threat of cybercrime and cyber espionage.

"It is an important and worthy objective to take a tough stance on firearm trafficking, and the Government should be commended for making this a priority," Mr Clark said.

"With concerns about cyber security rising across all sectors of the economy, we should be particularly concerned about the very sensitive information held by lawyers that we know is seen as a real prize by cybercriminals," Mr Clark said.

"The Law Council supports the doubling of the maximum penalties for firearms trafficking as an appropriate measure. The proposed mandatory minimum penalty of five years imprisonment for firearm trafficking, however, is too blunt an instrument to be effective or fair.

"Law firms face a number of challenges. Like every other business they are a target for cybercriminals trying to defraud the firm or extract a cyber ransom payment. They are also the target for cybercriminals who want to steal information.

"A minimum five year penalty is unlikely to deter hardened criminals with a propensity towards violence.

"Law firms and lawyers hold sensitive client business information and intellectual property.

"Mandatory sentencing is likely to lead to unjust punishment by forcing courts to apply a rigid standard without regard to the particular circumstances of a case.

"Corporate clients, in particular, will often share market sensitive information, for example information about mergers and acquisitions, that could be stolen and used for insider trading.

"There have been recent examples of individuals who have a legitimate use for firearms inadvertently travelling with guns or ammunition. These individuals could now be in prison if these proposed reforms were in force.

"Consider the 2010 example of Victoria Police Chief Commissioner Simon Overland, who inadvertently carried a magazine containing live rounds of ammunition on a flight from Melbourne to Canberra.

"Prior to travelling, Mr Overland had removed a firearm from his bag, but forgot to take out the magazine. Under the proposed laws he could be facing a mandatory five year jail term.

"Judicial discretion is a core principle of our justice system for a very good reason.

"The world is complex and judges need to be able to adapt their sentence to the circumstances of an individual case," Mr Clark said.

"There is also litigation and negotiation strategies, settlement parameters, and analysis of evidence that can be used by an opponent.

Reports and images of alleged mistreatment in Townsville's Cleveland Youth Detention Centre and Brisbane Youth Detention Centre emphasise the pressing need for all jurisdictions to conduct independent, armslength reviews of their juvenile detention systems.

The disturbing images were aired on ABC and taken from internal government reports by the Queensland Government's Youth Detention Inspectorate.

The Law Council has previously called for a thorough examination of youth detention in all Australian jurisdictions and an intergovernmental strategy to address high rates of Indigenous youth imprisonment, following revelations of apparent mistreatment of youth detainees in the Northern Territory Don Dale Youth Detention Centre.

Law Council of Australia President Stuart Clark AM said the new images and allegations underlined the need for broad, independent reviews of youth detention in all jurisdictions.

"It is commendable that a Royal Commission has been established to investigate the juvenile detention system in the Northern Territory. However, these most recent reports demonstrate that there is also an urgent need to shine a spotlight on other jurisdictions," Mr Clark said.

"These threats fundamentally strike at the core of what it is that we do as legal professionals, because client confidentiality lies at the very foundation of the client/lawyer relationship.

"These reviews must be at arms-length from government and preferably conducted by a judicial officer or senior lawyer, either in the form of a Royal Commission or other independent review.

"Lawyers must be able to demonstrate to their clients and regulators that they understand the nature of risk and are taking action to address the threat."

"Independent state and territory based reviews can enable swift and comprehensive examination of all juvenile detention systems.

Mr Clark said cooperation and coordination across the profession â&#x20AC;&#x201D; and with government â&#x20AC;&#x201D; were key.

"It is well known that youth detention and criminal justice practices disproportionately affect Aboriginal and Torres Strait Islander young people.

"The Federal Government's announcement this year of a $230 million Cyber Security Strategy was significant and timely," Mr Clark said.

LAW COUNCIL TO LAUNCH NATIONAL CYBER SECURITY INITIATIVE AS CYBER THREAT GROWS

"Cybercrime and cyber espionage are truly global phenomena and an appropriate response requires government to be working cooperatively with the private sector to exchange information about threats and security responses.

The Law Council of Australia will launch a national cyber security information campaign for the legal profession this year, as the threat of cybercrime and cyber espionage grows exponentially across the globe.

"The Law Council is developing both an education package and a hub for the exchange of information and security initiatives to strengthen the protection of the entire Australian legal profession."

48 | BRIEF OCTOBER 2016

DISTURBING IMAGES FROM QLD UNDERSCORE THE NEED TO REVIEW YOUTH DETENTION AUSTRALIA-WIDE

Mr Clark said that "Detention of young people should only occur where absolutely necessary, to ensure their safety and the safety of others in the community.

"The community must also be confident that children are protected from harm while under the care and supervision of the State.

"Further independent reviews are crucial to ensure the health, safety, and welfare of young people in detention, who are under the care and custody of government."

pam sawyer

49

Professional Announcements Career moves and changes in your profession

Trinix Lawyers

Murfett Legal

IRDI Legal

Trinix Lawyers are please to announce that Andrea Symons has been promoted to Senior Associate as of 1 July 2016.

The Directors of Murfett Legal are pleased to announce the following staff movements:

IRDI Legal is pleased to announce the appointment of Craig James as Senior Property Lawyer.

• Andrea Symons

Jessica Andersen, has joined our Estates & Property team as an Associate;

•

Deborah Low, has joined our Property & Commercial team as a Lawyer;

•

Jacinta Binstead in our Estate Planning team has been promoted to Associate; and

•

Margaret Au in our Corporate & Commercial team has been promoted to Associate.

Craig James

Craig brings to IRDI over 40 years of property and commercial law experience and will be working primarily in those areas. He also practices in the areas of business succession and estate planning.

Classifieds

LIFE-STYLE LEGAL PRACTICE If there is such a thing we believe we have created it. Tony and Rosemary Lee offer for sale their unique Legal Practice at beautiful Mission Beach in Tropical North Queensland.

Accommodation on site available Registered boat mooring Please direct enquiries to admin@leeandco.com.au or phone (07) 4068 8100

Looking to sell your files and/or legal practice?

We are an expanding boutique commercial law firm.

Send any enquiries by email in the first instance to perthlawfirm@gmail.com All enquiries will be dealt with in strict confidence.

50 | BRIEF OCTOBER 2016

OFFICE SPACE AVAILABLE

EQUUS, 580 HAY STREET, PERTH Office space of approx. 100m2 available for rent with shared reception and boardroom facilities; suit professional office; negotiable rent.

All enquiries to 0409 113 115 Email: advertiser2516@gmail.com

FOR LEASE 2 Office rooms

(approx 12 sqm with window & 15 sqm)

Central CBD Location 1st Floor, 524 Hay St, Perth Each $780 per month

Includes use of shared conference room

Contact Francois Carles Carles Solicitors Tel 9221 4877 or fcarles@carleslawyers.com.au

Perth’s best French cuisine & wines Wed – Sun 6.00pm to late Lunch anytime for bookings over 20 Corporate enquiries welcome go to ptiteardoisebistro.com.au Call Jodie 9228 2008

MISSING WILL Any practitioner holding any document or having knowledge of the existence of a Will or any other document purporting to embody the testamentary intentions of Stefania (Stephanie) Clarke of 113 Central Avenue, Redcliffe, Western Australia (date of birth 5 December 1948) who died on 18 July 2016 please contact Zafra Legal, Level 10, 105 St Georges Terrace, Perth, WA 6000 (Tel (08) 6212 3777, email admin@zafralegal.com.au).

New Members New members joining the Law Society (August 2016)

Associate Membership

Ordinary Membership

Mr Nicholas Rogers

MDS Legal

Mr Carl Della-Bosca

Ashurst Australia

Mr Michael Anderson

Murdoch University

Miss Kai Francis

Allens

Ms Elizabeth Hersey

Clifford Chance (Sydney)

Mr Matt Giles

Murdoch University

Restricted Practitioner

Mr Stephen McPherson

University of Notre Dame

Mr James Galati

Deloitte

Mr Caleb Maher

University of Western Australia

Ms Tyne McConnon

Baldivis Law and Mediation

Ms Elizabeth Keen

Archon Legal

Mr Daniel McDonald Ms Cynthia Shearer

Curtin University

Miss Joanne Low

Legal Care Australia

Mrs Michaela Stanton-Cook

Murdoch University

Mr Timothy Wei Sheng Oo

JNC Legal

Mr Almiro Clere

Clifford Chance

Ordinary Membership Ms Amanda Wong

Mills Oakley

Ms Thelma Rae Heather

National Native Title Tribunal

SAVE THE DATE Law Summer School 2017 Australia's Place in the World

Friday, 17 February 2017 â&#x20AC;&#x201C; All day University Club, Hackett Entrance #1, Crawley WA 6009 Following on from the success of an outstanding Law Summer School conference this year, Law Summer School 2017 examines Australia's place in the world and aims to be another day of thought-provoking knowledge and discussions. We encourage you to save the date so you can take part, along with esteemed Australian and international legal practitioners, in an extraordinary collegial learning experience. Be inspired by fresh ideas and a great intimate environment to connect with and learn from members of your profession.

Expressions of interest email cpd@lawsocietywa.asn.au lawsocietywa.asn.au

51

Events Calendar

With thanks to our CPD partner

Stay up-to-date with the latest Law Society member and CPD seminars

DATE

EVENT

LOCATION

OCTOBER MEMBERSHIP EVENTS Thursday, 20 October

Society Club hosted by the Indigenous Legal Issues Committee

The Western Australian Club

OCTOBER CPD SEMINARS Tuesday, 4 October

Marketing in a downturn

The Law Society of Western Australia

Wednesday, 5 October

Skilled minute taking

The Law Society of Western Australia

Thursday, 6 October

Practical tips for transactional lawyers

The Law Society of Western Australia

Monday, 10 October

Accessing the law: a State and National perspective

The Law Society of Western Australia

Monday, 10 October

Law Mutual (WA) Seminar: Professional liability risks and controls in practice – are you accepting suitable matters?

The Law Society of Western Australia

Tuesday, 11 October

Non-contentious Probate Rules: citations and caveats

The Law Society of Western Australia

Tuesday, 11 October

Urgent wills and assessing a client’s mental capacity

The Law Society of Western Australia

Wednesday, 12 October

Anti-bribery and Corruption: the brave new world

The Law Society of Western Australia

Thursday, 13 October

Change of plea when an accused pleads guilty in a superior court

The Law Society of Western Australia

Friday, 14 October

The impact of poor work culture: the people and productivity benefits of wellness

The Law Society of Western Australia

Friday, 14 October

Ethics on Friday: ethical dilemmas in advocacy

The Law Society of Western Australia

Tuesday, 18 October

Community Title Schemes: development and management issues for lawyers

The Law Society of Western Australia

Tuesday, 18 October

Privilege: the scope and limits of without prejudice communications and legal professional privilege

The Law Society of Western Australia

Wednesday, 19 October

African cultural awareness

The Law Society of Western Australia

Wednesday, 19 October

Strategies for managing difficult or vexatious litigants

The Law Society of Western Australia

Thursday, 20 October

Environmental approvals: implications of the Beeliar Wetlands decision

The Law Society of Western Australia

Monday, 24 October

Law Mutual (WA) Seminar: Cyber crime – how to prevent an attack and its impact on professional liability

The Law Society of Western Australia

Tuesday, 25 October

Law Mutual (WA) Seminar: Cyber crime – how to prevent an attack and its impact on professional liability

The Law Society of Western Australia

Wednesday, 26 October

Practical tax update for non-tax lawyers

The Law Society of Western Australia

Wednesday, 26 October

Law Mutual (WA) Seminar: How to stay conflict free for small practices

The Law Society of Western Australia

Thursday, 27 October

Law Mutual (WA) Seminar: New practitioner risk 101

The Law Society of Western Australia

NOVEMBER MEMBERSHIP EVENTS Friday, 4 November

Mixed Netball Competition hosted by Young Lawyers Committee

Matthews Netball Centre

Wednesday, 16 November

Welcome to the Profession

Pan Pacific Perth

Thursday, 17 November

Inter-Profession Networking

EY Perth

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8614 For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8692 For all upcoming events and further information please visit lawsocietywa.asn.au 52 | BRIEF OCTOBER 2016

Live well, be well and work well

Your Law Society membership gives you complimentary access to LawCare WA, which provides a wealth of resources to proactively manage and enhance your work, health and life including: •

Health and wellbeing assessment

•

Fitness calculators

•

Hints and tips for a range of topics including  

Tips for a better night’s sleep Getting fit when you don’t have time



Eating healthy



Career planning



Retirement planning



Budgeting

•

24/7 confidential phone support to help with life’s challenges

•

Three professional, confidential and free counselling sessions to assist you when you need it

Contact 1300 361 008 or visit lawsocietywa.asn.au/lawcarewa

LawCare WA is available to members of

Services provided by Optum

Your All-in-One Mobile Solution Like Never Before! n Make your practice mobile â&#x20AC;&#x201C; consulting with clients has never been easier n Access up-to-date progress on matters, from wherever you are n Easily view matter correspondence in both online and offline mode n Accurately record your billable time while on the go

LEAP Mobile is only available with your LEAP subscription.

Book an obligation free demonstration today!

1300 886 243 | leap.com.au/mobile