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The official journal of the Law Society of Western Australia
Volume 37 / Number 2 march 2010
In this issue:
WA and the National Legal Profession Reform Project
and
Transfer of Business Under the Fair Work Act
Also:
Young Lawyers News
Japanese Judge Visits the Society
Law Society Councillor Appointed to Bench
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Julianna Shearn B.Juris, LL.B0401 001 [email protected]
Jennifer Halling BA, M.Ed0412 880 [email protected]
commercial litigation and Insolvency lawyersJunior to mid level – We have several opportunities with award winning, top tier firms. Join the best of the best and enjoy high calibre and exciting instructions. As well as superior work, you will also benefit from top of the range remuneration and a dynamic and vibrant environment.
Junior to mid level – One of Perth’s largest law firms has a fabulous new role for a rising litigation star. With this dynamic and high performing team, you will have plenty of exciting work along with excellent training and mentoring.
mid to Senior level – Join the best of the best, as you step into this role with a top tier national firm. Working with leading partners, you will be involved with matters of the highest calibre, spanning across competition law, trade practices, corporate and commercial litigation, contractual disputes, equity law, professional indemnity and intellectual property.
corporate lawyer – mid to Senior level This is a fabulous opportunity for a mid to senior level corporate lawyer to join a leading boutique law firm. Our client offers the scope to work within a highly regarded team and play a pivotal role in the expansion of the firm. With a strong and stable client base, you will have plenty of high quality work, keeping motivation up to its highest level.
resources lawyer – Senior associate to Partnership levelWe have a very attractive role for an experienced energy & resources solicitor. This is a golden opportunity to join a highly regarded law firm. Our client has extensive industry and transactional experience nationally and internationally and is now looking to expand its team of experts. Working on matters of the highest calibre, you will be advising on large transactions in the energy & resources and mining industry, drafting and negotiating joint venture and farmin agreements, drafting and advising on contracts, supply agreements, advising on major projects and upstream oil & gas projects. Our client is looking for a highly astute solicitor around senior associate to partnership level, with experience gained from a leading national law firm, highly regarded boutique law firm or in-house role. You will have a stellar background in energy & resources and ideally, you will have a client base to bring.
construction lawyersJunior to mid level – Our client is currently seeking a talented and passionate lawyer to join its busy and successful construction team. In this role, you will be dealing with predominantly non-contentious projects and commercial law. Your work will include project planning, contract drafting and negotiation, contract administration, as well as some litigation and the management and resolution of construction and contracting disputes.
mid level Solicitor – Work with the best of the best at this top tier firm. Outstanding training and mentoring, stimulating work, with a mix of contentious and non-contentious matters, as well as excellent remuneration.
commercial, Property lawyers mid to Senior level – If you are looking to move into a friendly and varied commercial practice off the Terrace, this role will keep you both busy and motivated. Along with excellent commercial and property instructions, your work will also include banking & finance matters. Ideally, you will have at least four years’ post admission experience with a sound background in commercial and property law, including strong wills & estates experience and ideally, some exposure to banking & finance law or a very strong interest in this area.
mid to Senior level – Fabulous opportunity to join a distinguished law firm in the CBD. In this role, you will be working closely with practitioners who are leaders in their field, dealing with a broad range of commercial property and leasing matters, including land development, financing of commercial projects, as well as acquisitions and disposals. To be successful in this rewarding role, you will have a solid background in commercial property, with a minimum of three years’ post admission experience and have the initiative and communication skills to service high calibre clients with a positive outcome.
other Perth VacanciesWe also have a selection of roles in the areas of employment law, banking & Finance, commercial law with an IP/IT focus, Insurance law and ohS, corporate risk.
Senior level and Partnership opportunities – Call Julianna for a confidential discussion.
Suite 8, 5 colin Street, West Perth Wa 6005T (08) 9322 3300 F (08) 9322 3355www.shearnhrlegal.com.au
Candidates that Shine – Shearn is committed to providing the very best service to our clients and candidates. Moving into our 12th Year of excellence in 2010, our knowledge of the market is unrivalled. Please consider the following opportunities currently available and visit our website www.shearnhrlegal.com.au or call Julianna or Jennifer for further information.
March 2010 1
SUBMISSION OF ARTICLES Contributions to Brief are always welcome. Please note that the publication deadline for each edition is the 1st of the previous month. For further details, please contact Rob Kerr, [email protected]
DISCLAIMER The views and opinions expressed in Brief and the claims made in advertisements publishedwithin it, are not to be taken as those of, or as being endorsed by The Law Society of Western Australia (Inc.), the Brief Editorial Committee or Cambridge Media. No responsibility whatsoever is accepted by the Society, the Editorial Committee or Cambridge Media for any opinion, information or advertisement contained in or conveyed by Brief.
Volume 37 Number 2 march 2010
cover storyNational Legal Profession Regulation: Is There a Case for Reform? ..............................................8
FeaturesJapanese Judge Visits the Society ...............................................................................................4
National Legal Profession Reform .............................................................................................13
New QPS Workshop Dates Announced .....................................................................................15
WA Jewish Lawyers Chanukah Drinks .......................................................................................16
Gosnells CLC Tours FBLEC ........................................................................................................16
Transfer of Business Under the Fair Work Act 2009 ..................................................................17
Young Lawyers News ...............................................................................................................24
Law Week Returns in May ........................................................................................................35
Law Society Councillor Appointed to the Bench ........................................................................39
regularsPresident’s Report ......................................................................................................................2
Executive Director’s Report .........................................................................................................6
Pam Sawyer .............................................................................................................................22
Twilight Sailing Regatta ............................................................................................................32
From the Vine ..........................................................................................................................33
Law Council of Australia Update ..............................................................................................34
State Administrative Tribunal ....................................................................................................36
Thomas Hurley Case Notes .......................................................................................................38
Off the Press ............................................................................................................................40
Book Review ............................................................................................................................42
What’s On ...............................................................................................................................42
Professional Announcements ....................................................................................................43
Classifieds ................................................................................................................................43
Law Bulletin .............................................................................................................................44
Brief is printed on recycled paper
rrP $15.00 incl GST
editor Ronald Bower
editorial committee Amanda Bishop,
Gregory Boyle, Catherine Elphick, Alison Gaines,
Richard Graham, Matthew Keogh, Rebecca Lee,
Alain Musikanth, Kate Norman, Pat Saraceni,
Fiona Walsh, Simon Watters, Joel Yeldon
Proofreader Michael Hardy
Brief is the official journal of
The laW SocIeTY
oF WeSTerN auSTralIa
4th Floor, 89 St Georges Tce
Perth WA 6000
Tel (08) 9322 7877
Fax (08) 9322 7899
Web www.lawsocietywa.asn.au
ISSN 0312 5831
President Hylton Quail
Senior Vice President Simon Watters
Vice President Dr Christopher Kendall
Treasurer Craig Slater
ordinary members Konrad De Kerloy,
Judith Fordham, Graham Goerke, Pamela Hass,
Belinda Lonsdale, Greg McIntyre SC,
Denis McLeod, Steven Penglis, John Prior,
Shane Sirrett, Craig Slater
country member Carmel McKenzie
Junior members Dr Eric Heenan,
Matthew Keogh, Elaine Wambeck
Immediate Past President Dudley Stow
Published monthly (except January) by
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2 March 2010
hylton Quail
President’s Report
National legal Profession reform update
By the time you read this, the National Legal Profession
Reform Bill should have been released for public consultation.
The Society expects that the consultation period will last
approximately one month. The Bill will then be on the agenda
for consideration at COAG in May.
The Society through its committees and Council will be working
very hard to respond to the Bill on behalf of Western Australian
practitioners. Much of the in-principle work has already been
done during the taskforce consultation phase. It is now a matter
of considering whether the Bill addresses the concerns identified
by law societies and Bars across the country and also the Council
of Chief Justices.
The major concerns of the Society relate to:
• Increased costs of practice if a new eastern states-based
bureaucracy is created.
• Maintaining the independence of the profession from
executive government.
• The role and powers of any ombudsman.
• Simplifying existing laws to reduce the regulatory burden on
practitioners.
• Implementing national standards without referring state
powers.
If our concerns are not allayed in the final draft of the Bill, then
the Society will seek a solution at state level. It is by no means a
foregone conclusion that Western Australia will join the federal
scheme if the Attorney-General and Premier can be persuaded
that it is not in the state’s interest to do so.
I urge all members to read the National Legal Profession Reform
Project article in this issue of Brief which provides more detail
about the reform proposals and the consultation process. Please
also read the Bill and contact the Society or me about issues of
concern.
recent Submissions
The Society has had a busy start to the year, with a number
of submissions made to government and the Law Reform
Commission. Three of the more important to date have focused
on the issues of proposed stop and search legislation, jury
selection reform and a review of the Sentencing Act 1995. The
Society has also been very active in the media on these topics.
Of most concern to members would be the Police Minister’s
proposal to allow searches of people and vehicles in prescribed
areas without either consent or reasonable suspicion. On behalf
of the Society I gave evidence before the Standing Committee
on Legislation (Legislative Council) on 11 February voicing our
opposition to the Bill. Police already have very wide search
powers, which were substantially increased as recently as 2006.
The government has produced no credible evidence that existing
powers are inadequate and former senior police officers, as well
as lawyers, media commentators and members of the public
have expressed grave reservations about the proposed laws.
The civil liberties of all Western Australians will be significantly
eroded if Parliament passes this draconian Bill.
The Society’s submission to the Western Australian Law Reform
Commission (WALRC) commended the discussion paper on jury
selection. The Society has said consistently over the last few
years that jury pools need to be widened and fewer excuses
from jury service allowed. The strength of the jury system is in
it being representative of the community at large. I expect the
government will legislate later this year, following the release of
the WALRC final report, to address these concerns.
The government is also expected to produce a sentencing Bill later
this year following the Department of the Attorney-General’s
review of the Sentencing Act 1995. The Society’s submission
recommended a number of reform proposals intended to
increase the sentencing options available to courts and address
Western Australia’s high rate of imprisonment compared to
other states. The introduction of partially suspended sentences,
periodic detention and partially suspended fines are some of the
initiatives the Society has recommended.
March 2010 3
Members will soon be able to read all of the Society’s substantive
submissions on our website and will be notified in due course
when they are uploaded.
last month for the cPD Year
There is now less than a month remaining in the current CPD
year. With the threat of being penalised by the Legal Practice
Board for non-compliance, I implore all members to ensure they
have secured their 10 cPD points by 31 march. The Society has
scheduled a diverse and comprehensive range of CPD events for
this month which can be viewed at www.lawsocietywa.asn.au.
You can also find a CPD Planner for upcoming events in this
edition of Brief.
Wig commemorative Photo
I wish to personally thank all of those members who supported
the Society’s photo shoot to commemorate the passing of wigs
in Western Australian courts. Copies of the photograph will be
available for purchase shortly at a modest cost. The Society will
advise members via Friday Facts how you can order yours for
posterity.
law Summer School
Law Summer School 2010 was held on Friday, 26 February and
the 250+ delegates ensured it was a runaway success, with the
conference selling out in early December. In fact, the majority of
spaces had been booked by October 2009, before the official
program of events had been finalised.
With such heightened demand following the strong word of
mouth regarding the 2009 event, this year’s Law Summer School
had plenty to live up to. The 2010 program proved to be as
strong, if not stronger, than that of 2009 and feedback I have
received is that the conference was incredibly well-executed by
the Society and UWA.
I would like to thank all of the presenters for taking time out
of their busy schedules to present at the conference and must
also acknowledge the hard work of the Law Summer School
Committee, co-chaired by Gregory Boyle, Partner, Jackson
McDonald and Bill Ford, Dean of Law, UWA, and the Society’s
CPD team for organising the day’s program of events.
A full event review will feature in next month’s Brief.
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Japanese High Court Judge Eiji Uesugi visited the Society in early February. He was met by Society President Hylton Quail to discuss the Western Australian legal system and, in particular, family law and Children’s Courts.
Judge Uesugi sits on the Bench at the Nagoya High Court, the equivalent of WA’s Supreme Court. His career as a judge started with his appointment as Assistant Judge in Nagoya in April 1992. His Honour then served on the District Court in Osaka as well as the Family and District Courts in Yamagata. He was appointed to his current position in April 2007. In 2008, His Honour wrote the judgement in a landmark decision, which held that Japan’s commitment of troops to Iraq was unconstitutional.
Japanese Judge Visits the Society
Society President Hylton Quail with Judge Eiji Uesugi
Your profession our passion
hays.com.au
Legal Counsel. impact business direction.
This market leading organisation is a major supplier to the mining and resources sector with operations throughout Australia. Due to recent growth, a superb opportunity exists for a junior Corporate/Commercial Lawyer to become part of this talented and dynamic team.
You’ll be responsible for reviewing commercial contracts, negotiation, compliance, general corporate advisory and playing an active part in business direction. You’ll be an accomplished lawyer with 2-3 years PAE in a similar in-house environment. The position offers close mentoring and a true work/life balance.
Commercial property Lawyer. provide expert advice.
This progressive and successful firm holds a substantial and expanding market share across the areas of property, banking and finance. They count some of Australia’s leading financial organisations and property developers amongst their key clients.
With a high volume of upcoming work, the firm has identified the need for a mid to senior level lawyer to join their busy practice. Your expert knowledge of general commercial and property law matters, strong drafting skills and ability to develop key relationships with your clients will see you actively contribute to the company’s success.
Corporate Lawyer. negotiate effective outcomes.
This thriving boutique practice is extremely well regarded and offers a high quality alternative to the big firms. Due to substantial growth the firm has an immediate requirement for an experienced and talented Senior Associate to join their successful practice. The firm has attracted an enviable client base including a number of ASX listed companies.
Your work will encompass all aspects of corporate and resources law and you’ll be given considerable opportunity to be directly involved with large transactions, working alongside partners who are nationally acknowledged experts in their respective fields. You will have 5 years PAE in corporate law at a recognised firm, strong commercial acumen and outstanding client skills.
Construction Lawyer. Drive business growth.
This leading firm has one of the most recognised construction practices in the local market and boasts a number of high profile international clients. Capitalising on recent growth, a newly created position exists for a talented Senior Associate.
You’ll be involved in the full spectrum of construction matters including both front-end and back-end work. Servicing a varied and continually growing client base, you’ll provide advice; assist in the preparation of contracts, agreements and policies; negotiate and assist with any dispute resolution.
The team has unique industry knowledge and expertise ensuring you’ll expand your skills and develop professionally.
family Lawyer. Consult, advise and implement change.
This established and highly regarded firm has an excellent reputation in the Perth market. Their respected family law practice is inundated with work and requires the expertise of a talented Family Lawyer to maintain the momentum of growth.
You’ll gain exposure to a full spectrum of family law matters, be mentored by senior colleagues and have the opportunity to build up your own practice and truly make this role your own. You’ll be a family law specialist with 1 to 3 years PAE and the drive and determination to progress your career.
Contact stacey Back at [email protected] or 08 9254 4598.
6 March 2010
David Price
Executive Director’s Report2010 Treasurer appointed
I am pleased to advise members that Craig Slater has been appointed as the Society’s Treasurer for 2010. Craig is a Barrister at Francis Burt Chambers and has been part of the Council for a number of years. Craig’s main areas of practice include commercial and civil litigation, banking and finance, bankruptcy and insolvency, equity and trusts, trade practices and appeals amongst others. Craig brings a wealth of knowledge to the role, and I look forward to working with him in 2010.
law Week 2010
This year’s Law Week dates have been announced, with the annual program of law-related events to take place between 17 and 21 May. The 2010 theme is ‘Law and justice in your community’. WA’s Law Week has moved to May as part of a national Law Week program, whereby all states are celebrating Law Week at the same time. This unification will assist with the promotion of Law Week and the vital work of the legal profession throughout the country.
The feature event for the legal profession in this year’s program of events is the Law Week Luncheon, to be held on Friday, 21 May at the Parmelia Hilton. The new Law Council of Australia President Glenn Ferguson will present the keynote address focusing on the latest developments in the National Legal Profession Reform Project. The Hon Christian Porter MLA, State Attorney-General, will also address the topic from a WA government perspective. Plus, the Attorney-General’s Community Service Law Award will be presented at the luncheon.
Register as an individual or purchase a table of eight. You can download the registration form at www.lawsocietywa.asn.au
For more information on Law Week 2010, and how you can get involved, turn to page 35 or email [email protected]
cPD Planner Insert
As mentioned in this month’s President’s Report, the end of the CPD year is fast approaching. Make sure you get your CPD Planner insert in this edition of Brief for the comprehensive list of CPD events remaining in March to help earn your required amount of points. Also, if you’re unsure of the CPD Rules and Requirements, turn to the back page to find out the points breakdown required by WA practitioners.
law mutual
In early March, Law Mutual will send out application forms to all legal practices who wish to obtain professional indemnity insurance through the Law Mutual insurance arrangements. These forms must be returned to Law Mutual by Wednesday, 31 March 2010. In early April, Law Mutual will send tax invoices to those legal practices who have applied. The tax invoices must be paid by 15 May 2010. Please be aware a mandatory 10% late payment fee will apply to all invoices paid after that date.
cPD Points allocation for mock Trials Judges and coaches
For the first time, judges and coaches in the Society’s Mock Trials Competition will earn CPD points in Competency 1 (Legal Skills and Practice). The Society is calling for legal practitioners and articled clerks or graduates to act as judges and coaches for the 2010 competition or to confirm their continuing participation. Mock trials will be held at the Supreme Court over six rounds, with the first round having commenced in late February. The Grand Final will be held at the Supreme Court in September. For further information, please contact Arpad Ollari-Hazy, Mock Trials Coordinator, at [email protected] or visit www.lawsocietywa.asn.au
calendar Kick-off
The Society’s Young Lawyers Committee (YLC) hosted its first social event for 2010 on Friday, 12 February at Tiger Lil’s Tavern in Perth. The appropriately-titled Calendar Kick-Off was a fun night out for WA’s young lawyers, where attendees shared a relaxed drink with colleagues and peers to celebrate the start of a new year. Thanks go to DX Solutions and Interpeople for sponsoring the event. Turn to page 27 for the full event review.
Twilight Sailing regatta
The Society’s inaugural Twilight Sailing Regatta, presented in partnership with the Financial Services Institute of Australasia, was held on Friday, 19 February and was a huge success with several yachts taking to the Swan River in the name of fervent social competition. The Society wishes to thank Marsh for sponsoring the event. You can read a full event review on page 32 in this edition of Brief.
Photo Galleries online
With so many Society events taking place throughout the year, there is only so much space in the pages of Brief to include all the photos of those in attendance. The Society has now set up a web page for event photo galleries, so members can view event snaps online. We will add more photo galleries throughout the year, so keep checking back after each recent event.
Student members
Throughout February the Society’s Membership team have been visiting the various law schools in WA to meet with new students and discuss the benefits of Society membership. The visits will continue in March and I thank the four law schools for their continued support of these visits.
Also in March, the Society took part in the Law Careers Fair. This year’s event was held in the QV1 lobby on Friday, 5 March. The fair is an ideal forum for law students to find out more about the benefits of being a Society member and all of the services offered, as well as meeting with potential employers within the legal profession.
Commercial/Property Lawyer 1 – 6 years PAE (2 roles )Well-established Perth firm. Diverse role with a focus on sales/acquisitions, leasing, P&E, and commercial business related matters.
The team handles the full range of general commercial business and property related matters eg: contracts, retail/commercial leasing, commercial sales/acquisitions, property development, financing and securitisation on behalf of CBD and rural lenders, plus general business law matters.
The Commercial and Property Team are strongly regarded in the region and consistently attract high-quality and high-profile work. They are dedicated to excellence in client service and provide clear, accurate and prompt advice. The team operates very harmoniously; the environment is distinctly more friendly and relaxed than comparable practices. 1-3 PAE and a 4+ PAE lawyer. [email protected] 08 9480 2211
Environment/Planning Senior AssociateThis team has a long and successful history acting for developers, infrastructure providers, landowners and local governments in all facets of Planning and Environment Law.
The practice extends across the full range of development projects, including residential, tourism and recreation, retail, aged care, commercial and industrial projects, and major infrastructure projects such as roads, water, energy and telecommunications. You will have the opportunity to work closely with a team of dedicated practitioners and be involved in various aspects of planning, water and environment law, including managing environmental incidents and investigations, assessing environmental management systems, and negotiating with regulatory authorities. You will require a strong background in environmental law, and some mining and resources exposure will be highly regarded. Strong progressional role! [email protected] 08 9480 2211
Workplace Relations/OHS 4+ years PAE A rare opportunity with a leading CBD law firm due to amazing growth in their Workplace Relations group. Our client has indicated that this role has genuine prospects to progress to Senior Associate in a realistic timeframe.
Our client seeks an additional lawyer with minimum 4 years post admission experience to join the workplace relations group of this well-regarded large commercial law firm. You will have the opportunity to undertake a broad range of Employment and Industrial Relations Law, and Workplace Health and Safety matters; however, due to the structure and depth of this well resourced team, you may also develop a niche expertise in a particular area or areas.
Ideally, you will have a minimum of 4 years practice experience in both contentious and non-contentious matters. Well-regarded large commercial firm, plus a well-established broad industry sector client base. [email protected] 08 9480 2211
Commercial Property 4 – 6 years PAE “Variety is the Spice of Life”. There is a whole lot more to this role than commercial leasing, eg: major property acquisitions and disposals, environmental law, NT, plus town planning law.
If you are looking to broaden your commercial property skill set or feel your current role is limiting your progression, then look no further. You will be joining a highly regarded team of 12 lawyers who have established a powerful and diverse client base including developers, large corporates and government clients. Providing a full commercial service to these clients, you will advise key stakeholders on a range of deals and transactions. You will be required to draw upon your existing skills in commercial property, and get up to speed with other associated areas of law.
Propel your career forward with this unique role. A leading salary is guaranteed, including an attractive bonus scheme. [email protected] 08 9480 2211
Family Law 3 – 4 Years PAENewly created role for mid-level Family Law specialist with a friendly and reputable commercial CBD firm. The beauty of this renowned independent practice is that it focuses on specialised areas of law. With flexible work practices and a collegiate culture, they boast one of the healthiest retention rates.
A unique opening has arisen for a family lawyer to join the team. You will be exposed to the full range of family law matters from property settlements, distribution of assets, pre-nups, binding financial agreements, parenting orders and mediation/counselling. No Legal Aid work, all private client matters. Enjoy hands-on involvement with the full support and resources of a mid-tier practice, and the backing of a firm who values its lawyers. If you are looking to take the next step in your family law career, then this is your next role! [email protected] 08 9480 2211
Commercial Litigation 3 – 6 years PAESuperb alternative to a top-tier practice without the loss of work quality. Friendly, mid-sized commercial firm seeks a proactive litigator to join their Commercial Litigation team. The practice covers Tort and TP matters, as well as contractual and property disputes through to Corporations Act, insolvency and mining litigation.
A hands on role with daily file management, including briefing counsel and appearance work. Excellent Partner supervision as required.
Ideally, you will have had experience with: Property disputes, general interlocutory injunction applications, general commercial claims (eg: contract law, TPA, tort, equity), Corporations Act matters, acting for liquidators/administrators, plus building and construction matters under the Construction Contracts Act. Client base consists of SME’s and Listed Companies. [email protected] 08 9480 2211
8 March 2010
Feature
on 5 February 2009, the Council of Australian Governments (COAG) agreed that further work needed to be done to achieve national regulation of the legal profession in Australia. At the request of COAG, the Commonwealth
Attorney-General, the Honourable Robert McClelland MP, established a Taskforce to prepare draft legislation by 30 April 2010 to uniformly regulate the legal profession across Australia. COAG agreed to add legal profession regulation to its microeconomic and regulatory reform agenda and it undertook to deliver a new and wide-ranging regulatory framework for legal profession regulation within 12 months.
The Attorney-General also established a Consultative Group in July 2009, chaired by Professor the Hon. Michael Lavarch, Executive Dean at Queensland University of Technology and former Commonwealth Attorney-General, to advise and assist the Taskforce in its work. The Consultative Group includes members from every state and territory and represents expertise from regulators, the courts, consumers, the legal profession and legal educators. The Western Australian representatives are Steven Penglis, representing the views of the WA regulator (LPB) and myself on behalf of the profession.
National Legal Profession RegulationIs There a Case for Reform?
The impetus for the reform came from a number of sources,
including the Law Council of Australia and the Large Law Firm
Group, on the basis that the Model Bill, which was adopted in
each state and territory with significant local variations, applies
in all states (other than South Australia, which for well-known
reasons has failed to “harmonise”). The regulation of the legal
profession remains overly complex and inconsistent, with each
state and territory applying different sets of rules. Unfortunately,
the Model Bill, drafted in their own style, as agreed by the
Attorneys-General, included the core provisions as well as the
non-core provisions. The result is, as agreed by the Consultative
group, inconsistent and differently drafted acts which do not
enhance or assist legal practice in a number of key areas: cost
agreements; admittance requirements and standards; CPD
requirements; single trust account for multi-state firms; and
uniform Professional Conduct Rules, to name a few major items.
The Consultative group is at one on uniformity for those items.
The aims of the reform are:
- to create a national legal profession and a national legal
services market through simplified, uniform legislation and
regulatory standards
Dudley Stow
Immediate Past President, Law Society of Western Australia
Senior Commercial Lawyer – Sea Change Opportunity Become an integral part of the Leadership Group, coordinating a growing team of Senior Lawyers in the south-west of WA. Working across a broad spectrum of quality commercial matters, you will have a strong grounding in general commercial and property law, and a solid understanding of the structuring of various entities. This is a close knit team that seeks driven professionals who enjoy life both in and out of work. 6 + years’ PAE
Senior Commercial / Commercial Litigation LawyerAutonomous role located five minutes from the CBD, managing a team of junior solicitors. A varied client base / work load including commercial litigation, general commercial drafting and advice, and wills and estate planning. Manage your own files and work alongside this well regarded Partner. Structured career progression and succession planning opportunities. 4 + years’ PAE
Commercial Lawyers
Junior Family Lawyer – 1 + Year PAEVery friendly and supportive boutique practice requires a proactive Junior Family Lawyer to join their team. Working across both children’s and property matters, you will be driven, organised and provide commercially sound results to your clients. Social and relaxed atmosphere. 1 + years’ PAE
Senior Associate – One Of WA’s Best PracticesThis exceptional team of specialist Family Lawyers is on the lookout for a Senior Associate to join their busy team. You will be passionate about achieving cost effective solutions for your clients and enjoy working in a collegiate environment. Your previous experience mentoring junior staff will be highly regarded. One of the best work environments in Perth. 5 + years’ PAE
Family Lawyers
Insurance Lawyer – 5 + Years’ PAEThis leading boutique Insurance firm requires an experienced Insurance Solicitor to join its team. Working across a range of Defendant side matters, with a focus on workers’ comp and liability cover, you will enjoy working in a positive and flexible environment. Opportunities for career development and genuine work / life balance are on offer, with lunch provided daily. 5 + years’ PAE
Insurance Lawyer – 2 Years’ PAEOur client is seeking a confident and proactive Insurance Solicitor to work on Top-Tier matters in a boutique environment. Take on increased responsibility and rapidly progress your career. Working with a large client base and a reputable Partner, this practice is known for its enjoyable and supportive environment. 2 years’ PAE
Insurance Lawyers
Commercial Property Lawyer – 5 + Years’ PAEAre you a Commercial Property lawyer looking to join a progressive firm that offers genuine career prospects, mentoring and work / life balance? Offering its lawyers great support, this firm attracts some of WA’s most sought after property work. You will advise on all aspects of commercial property transactions, with exposure to interesting and complex property matters across commercial / retail leasing, acquisitions and sales, disposals, finance and joint ventures. 5 + years’ PAECommercial Property Lawyer – 2-3 Years’ PAEJoin this leading mid-tier firm and make your mark in the legal profession. With a number of highly regarded Partners leading this particular team, you will work alongside some of the best in the industry. An opportunity to work on a broad range of high value commercial transactions. Excellent mentoring and training provided. 2 + years’ PAE
Commercial Property Lawyers
Senior Associate – Corporate LawyerAn opportunity to join this mid-tier Corporate firm specialising in the full spectrum of high end corporate work. Engaged by brand name clients, you will gain exposure to some of the best work in WA and internationally. To be successful, you will have 6-8 years’ corporate / commercial experience, and enjoy working closely with clients.
Junior Corporate Lawyer – Mandarin Speaking – Chinese ClientsThis firm specialises in corporate and resources law, offering a very professional and relaxed environment. Advising Australian and International clients, your practice will involve providing corporate and resources solutions / advice to clients based overseas. Outstanding ongoing training provided. 1 + years’ PAE
Corporate Lawyers
www.interpeople.com.au
For further information on any of the above roles, or to discuss the briefs we currently have available, please contact Chris Bates at [email protected] or Kristy Campbell at [email protected] or alternatively on (08) 9389 2800. We are always happy to spend time assisting people with career mapping and general advice, so please feel free to call us at any time to arrange a meeting.
Interpeople – People Growing Business, Business Growing People
Interpeople consists of practitioners from within our specialist practice areas including lawyers, accountants, engineers and HR Business Partners. We are a proactive and energetic team and have forged a reputation for providing a level of service that is second to none.
This well regarded mid-tier firm is seeking a quality Commercial Litigator to join a team of senior practitioners. Representing a high calibre client base, you will appear in all jurisdictions and gain exposure to an extensive range of quality commercial litigation matters. Run your own files, with supervision as required. 3 + years’ PAE
This boutique ER/IR team seeks a mid level lawyer to manage a large number of complex matters; including anti discrimination, FWA and IR advice, equal opportunity matters, occupational health & safety, strategic IR advice, and related litigious matters. Extensive variety in your day-to-day work, ongoing training from senior practitioners provided. 3 + years’ PAE
Commercial Litigation Solicitor – 3 + Years’ PAE
Workplace Relations Solicitors – 3 + Years’ PAE
10 March 2010
Feature
- to set national standards, policies and practices wherever possible and appropriate
- to ensure practitioners can move freely between Australian jurisdictions and that firms can operate nationally
- to provide clear and accessible consumer protection, so that consumers have the same rights and remedies regardless of where they live
- to create a national legal profession which is efficient, effective, robust and relevant.
At the outset the Law Societies and Bars agreed the following as essential outcomes from the process:
1 there must remain an independent legal profession, independent of government, with a substantial and independent role in its own regulation
2 existing legislation regulating the legal profession must be substantially simplified, thereby easing the regulatory burden on practitioners, especially those who engage in multi-state legal practice.
3 any new system of regulatory reform should be costed and should not be commenced until this costing is made publicly available (strong reservations being expressed about the complexity and cost implications of creating new national bodies as part of any national scheme)
4 any simplified system of regulation of the profession should not result in an increase in the cost of regulation for either consumers or legal practitioners
5 uniform Professional Conduct Rules should be determined by the legal profession at a national level
6 in accordance with standards set by the National Standards body, existing legal professional bodies (in the case of WA by the LPB) should continue to issue legal practitioners with practising certificates
7 in accordance with standards set by the National Standards body, discipline of legal practitioners should be performed by bodies determined by each state and territory
8 in accordance with standards set by the National Standards body, trust account regulation and supervision should be retained by existing bodies which regulate trust accounts in each state and territory
9 multi-jurisdictional law practices must be permitted to have a single trust account
10 existing bodies and Attorneys-General in each state and territory should continue to allocate interest earned on trust deposits, as currently provided for
11 for interest earned on trust account deposits in respect of multi-jurisdictional law practices, there will need to be an appropriate method for apportionment of interest between each state and territory and a review of the methodology must be undertaken at regular intervals
12 in accordance with standards set by the National Standards body, the administration of Fidelity Funds should remain in the states and territories
13 in accordance with standards set by the National Standards body, existing legal professional bodies should retain the management of lawyers’ professional indemnity insurance
14 that there be meaningful consultation on the development of policy and the drafting of legislation
15 that the role and status of courts in admissions and in applying agreed national standards be retained.
The Taskforce was slow to commence its work but in September 2009 it released its first paper, A Regulatory Framework: A National Legal Profession. It proposed the establishment of a National Legal Services Board to set policy and determine standards and a National Legal Services Ombudsman to “administer and oversee a national complaints handling scheme.” Critically, Members of the National Legal Services Board would be appointed by the federal Attorney-General on the advice of the Standing Committee of Attorneys-General. There has been very considerable disquiet expressed by the legal profession as well as the judiciary, most notably from Chief Justice Spigelman, Chief Justice of the Supreme Court of New South Wales and from the Chief Justice of the High Court of Australia on behalf of the Council of Chief Justices. Their Honours’ view is that any change to the regulation of the legal profession must retain the independence of the profession from the executive government. The independence of the profession is a corollary to the independence of the judiciary and the Council of Chief Justices believes a National Legal Services Board should not only have a majority of members who are from the legal profession, but that those members should be appointed independently of
The impetus for the reform came from a number of sources, including the Law Council of Australia and the Large Law Firm Group, on the basis that the Model Bill, which was adopted in each state and territory with significant local variations, applies in all states (other than South Australia ...)
There has been very considerable disquiet expressed by the legal profession as well as the judiciary, most notably from Chief Justice Spigelman, Chief Justice of the Supreme Court of New South Wales and from the Chief Justice of the High Court of Australia on behalf of the Council of Chief Justices.
March 2010 11
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government and of SCAG, with the chairman appointed by the Council of Chief Justices. In writing to the Law Council on this matter in November 2009, Chief Justice Spigelman wrote:
“... in my opinion, a vocation structured in this manner has no right to call itself a profession … proposed structure is, I believe, inconsistent with the first proposal … outlined, namely ‘there must remain an independent legal profession’. I am not aware of any legal profession in which the regulation of the profession is conducted by a body appointed by the executive arm of government. As far as I am aware, there has never been such a structure in any state of Australia.”
This remains a critical issue.
The Taskforce produced a number of papers and they are available through a link on the Society’s website. The Taskforce was very slow in producing papers and indeed it is fair to say some of the papers were inadequate and did not in my opinion show a depth of understanding of the profession particularly in the area of private practice or research, which was expected.
The delay in papers meant that the Consultative group did not really start work until November and indeed were forced to meet a number of times in December in a very short time frame after the release of papers.
The members of the Consultative group representing the profession establish their own group to discuss a united and single paper approach to the Consultative group as there was a very strong view the profession needed to speak with a united voice. The group is known as the K8 or sometimes K9 group.
For complaints and general supervision, the plan by the Taskforce is to establish the office of an Ombudsman. The name has been objected to by the K8 group. More correctly the name should be Law Complaints Commissioner or such like. The proposal means the Ombudsman would undertake a range of activities currently performed by state-based bodies and would oversee a national complaints handling scheme. The K8 Group is unconvinced that such a position is needed. In addition, the Ombudsman would have powers to deal with complaints of a more consumer-related nature, being complaints about the provision of legal services. The Ombudsman could make a “determination” (not a recommendation) in relation to these complaints if reasonably satisfied the conduct the subject of the complaint was not fair and reasonable in all the circumstances. At this stage, it is not entirely clear what a “consumer complaint” is, as it has not been defined. Even when it is defined, there is no reason why such a complaint could not be dealt with by existing state bodies rather than creating a new entity for this purpose. It is proposed to even have the Ombudsman determine costs disputes up to $100,000.00.
The view of the K8 is that the present complaint handling systems across Australia, although with different methodologies and titles, are, in general, working well. In WA, with the Complaints Commissioner and the Complaints Committee under the auspices of the LPB, it is working well. In addition, there are rights of appeal to SAT. I refer to the cost of what is proposed below in more detail but consideration should be given to the immense amount of time given to this aspect of the law by
very senior members of the profession, particularly at the Bar at no cost. Improvements can and should be effected, but these improvements could be made by the profession with simply a broad oversight by the proposed National Legal Services Board.
In respect to the Legal Contribution Trust, it is further proposed that the Ombudsman consider and determine claims against the Fidelity Fund. How the Ombudsman is to make such determinations is not stated and how that affects the duties of the Trustees of the trust is not clear.
We all strongly support the adoption of national standards governing the prompt resolution of complaints against legal practitioners. A cost-effective national system that is both effective and relatively easy to understand benefits consumers and legal practitioners alike. Unfortunately the proposed new role of the Ombudsman is unclear and, at least as presently envisaged, does not meet the aims that are stated for it. In fact, the establishment of the position flies in the face of one of the aims of the COAG agenda, which is to reduce the overburdening regulation of the legal profession and to ensure the costs of practising law are not increased. While there may be a need to establish a national board to set policy and ensure national consistency, the tasks to be performed by the Ombudsman are, in the view of K8 group, already adequately performed by the states. The creation of an Ombudsman position simply adds another level of unnecessary bureaucracy and I would suspect significant cost to the process.
It is intended that the legal profession pay the cost of the Ombudsman and the National Legal Services Board.
These proposals raise another area of major concern and that relates to the cost of these operations. The Consultative Group has made a number of requests to the Taskforce for full costing of the proposals. To date ,the proposals have, I understand, not been costed and no paper or information is available. The K8 has made very strong representations to the Consultative group and the Taskforce that a paper with full costs be prepared and is surprised that one has not been provided, bearing in mind the contemplated changes. I would refer interested readers to the Business Plan paper produced by the UK Legal Services Board to give the reader some idea of the issues and complexity, let alone cost. I might add that this board is not the Legal Complaints Board, where I believe the estimated annual costs are in the order of £25 million.
We all strongly support the adoption of national standards governing the prompt resolution of complaints against legal practitioners. A cost-effective national system that is both effective and relatively easy to understand benefits consumers and legal practitioners alike.
12 March 2010
Feature
It is The Law Society’s view and, I might add all Law Societies and the Bars, that any new regulatory regime should not increase the complexity or cost of practising law in Australia. In fact, to meet the aims of the COAG process, ways should be explored to simplify and actually reduce regulation and hence cost. Put simply, any increase in the cost of regulation will need to be passed on to the consumers of legal services; a matter which again is inconsistent with one of the aims of the reform process, which is consumer protection.
The Taskforce has also released discussion papers on legal costs, professional indemnity insurance, business structures – “law practices”; and Fidelity Cover. The Society, through the Consultative group, has responded to each of them in accordance with a time frame, which was totally inadequate, particularly bearing in mind the late start of the Taskforce and delays in papers to the Consultative Group. The process has proceeded with indecent haste. As a result, it is most unfortunate that there has been insufficient time given to Societies and Bar Associations to adequately consult with their constituents. Many of the discussion papers are flawed in that they make claims in justification of what is proposed but provide no evidence to support these claims. On the issue of reforms relating to admissions, the Taskforce has taken the view that this should not be referred for consultation. While they propose to uphold the role of the Supreme Courts as “guardians of the profession” their aim is to “simplify processes generally”. To this end they propose, among other things that:
“... the National Legal Services Board assess applicants (including foreign qualified applicants) against national admission criteria (National Rules) and issue compliance certificates.”
This raises the question of how one single body could undertake this work, along with its other responsibilities, when you consider that there were 4,813 admissions in Australia during the 2008 calendar year and at what cost? It can be assumed there will be a substantial cost increase in practice certificates bearing in mind that I suspect that the very significant number of volunteers by the profession will feel disenfranchised and removed and cease to contribute as they have in the past. The profession has had a very fine tradition of public service and contributing to society, which may well be jeopardised in this unseemly rush.
What then will be the role of the profession and its professional associations in this brave new world?
The Taskforce proposes the role to be:
- membership on the National Legal Services Board through the Law Council of Australia
- a fundamental role in the development of National Rules on professional conduct, legal practice and continuing professional development
- continued involvement in the development of all other areas of regulation through Standards Advisory Committees
- a continued role in administering certain areas of legal profession regulation under delegation from the Board or sub-delegation from the Board’s state or territory delegates – this would include administering practising certificates, trust
account inspections and investigations and managing fidelity funds [my comment: for as long as this continues?]
- working with the National Legal Services Ombudsman and/or its delegates in the states and territories to investigate alleged contraventions of the legislation or National Rules
- a continuing professional association role in maintaining and raising professional standards through education and guidance for their members.
The profession and its professional associations would also continue to make a valuable contribution to law reform, to represent the profession in various contexts and to serve the community through relationships, products, information and services that engage, inform and educate consumers and other stakeholders about the profession, the legal system and their rights as consumers.
At the risk of sounding negative, it would seem that the Taskforce believes that the legal profession is not to be trusted with regulation; that critical parts of national regulation and admission are to be controlled by an officer appointed by government rather than the legal profession and the courts and because of the alleged breach of trust that the current system of self-regulation is failing and therefore should be done away with.
All of this is without the benefit of any information on the possible implications for the cost of legal practice and thus the cost to clients. All we do know is that the government(s) will not be providing any money and the system will be self-funding.
... it would seem that the Taskforce believes that the legal profession is not to be trusted with regulation; that critical parts of national regulation and admission are to be controlled by an officer appointed by government rather than the legal profession and the courts
While the Society is strongly in favour of a single common system of regulation for the profession – with totally uniform and simpler content nationally, we need to remain vigilant as to the serious potential for the loss of independence with, in effect, government/public servant control over the legal profession and thus indirectly the judicial system. When the Chief Justice of Australia speaks out on the issue representing the Council of Chief Justices and to be apparently ignored, we as lawyers and society in general should be extremely concerned.
This item is based on an article prepared by Jan Martin, CEO of the Law Society of South Australia, and is used with her permission, for which I thank her. I have amended the article to reflect my views and therefore the views expressed in this article are my own.
March 2010 13
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This is an abridged version of the speech delivered by the Hon. Robert McClelland MP, Federal Attorney-General, at the Law Society of Western Australia and University of Western Australia’s Law Summer School on Friday, 26 February 2010.
lawyers play a fundamental role in our justice system, facilitating access to justice and equality before the law. A system of regulation that supports this work and ensures accountability with these high standards is of considerable importance to the Australian
community. But the regulation of the legal profession in Australia remains overly complex and inconsistent, with up to 55 different regulators across the country, creating different practices and processes in different jurisdictions.
For over a decade, governments have been working towards facilitating national practice – but, despite great commitment, there has not been great progress. In April 2009, the Council of Australian Governments (COAG) took decisive action and agreed on a concrete plan to achieve national regulation of the Australian legal profession. COAG called for the appointment of a specialist Taskforce and Consultative Group that would produce draft uniform legislation within 12 months. This direction was significant as it meant that federal, state and territory leaders all recognised the benefit of a national legal profession. Since then, with a few notable exceptions, general support has been expressed for the objectives of this reform project. But, as always, the devil is often in the detail and it would be fair to say that there has been considerable and robust debate – as there should be – about how a national legal profession may take shape. It is critical that everyone with an interest in this process not lose sight of the overarching objective by getting bogged down in debates over means rather than ends.
National Legal Profession Reform
The Proposed model
The legislation that the Taskforce will present to COAG will be uniform national legislation, but it will not be legislation which adopts the lowest common denominator.
In the process of developing its proposals, the Taskforce has been considering legal profession regulation across the country, with a view to adopting best practice. While the detail of the proposals is currently being finalised, the Taskforce has been committed to developing a national system that:
• continues to involve the legal profession in its own regulation through a co-regulatory model
• provides strong consumer protection
• simplifies regulation to minimise compliance burdens on legal practitioners and law practices
• promotes uniformity while retaining the significant expertise in existing regulatory bodies
• is internationally competitive
• facilitates pro bono and the work of community legal centres.
In some areas, identified concerns and further opportunities for simplification have led to innovations. At the same time, the Taskforce hasn’t been reinventing the wheel. Many proposals will look familiar in a number of states and territories. For example, the proposed two institution model of the National Legal Services Board and the National Legal Services Ombudsman, with the proposed Board acting as the standard setter and the proposed Ombudsman performing compliance and complaints handling functions has, I understand, been considerably influenced by the Western Australian model.
The Taskforce has proposed that the National Legal Services Board would set a single, national set of rules for all lawyers in Australia and any changes to those rules would also apply universally. The profession has conducted significant work in creating new national rules. The Taskforce has proposed that the National Legal Services Ombudsman will have a role in ensuring that the administration and enforcement of the national law and rules are also consistent across jurisdictions – to the extent that uniformity in application is beneficial. It would also be able to undertake other value-add tasks such as collecting information and data on complaints and drawing upon this practice to develop tools to support practitioners across the nation.
For over a decade Governments have been working toward facilitating national practice – but despite great commitment there has not been great progress.
14 March 2010
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The role of States and Territories
Under current proposals, states and territories will be very much equal partners in any new system. Legislation would be enacted at the state and territory level. States and territories would jointly establish the national bodies. In turn, those national bodies would be accountable to the states and territories through the Standing Committee of Attorneys-General (SCAG).
It is proposed that National Rules would be developed by the National Legal Services Board in close consultation with the legal profession before being approved by the states and territories through SCAG. The National Board and Ombudsman would promote uniformity, but would delegate many of their functions back to state and territory entities nominated by governments in each jurisdiction. As such, local entities would continue to undertake compliance and complaint-handling functions.
I am pleased that the Taskforce has revisited the important issue of the composition of the National Legal Services Board. The Taskforce has developed a proposal that the National Legal Services Board would constitute up to seven members, appointed by SCAG, with the Law Council of Australia and the Council of Chief Justices each having a nominee appointed. The Taskforce is still considering the appropriate composition of the Board and further views will be specifically sought on this issue during further consultation.
As well as substantial representation on the Board, the profession will also continue to have a central role in the development of conduct rules and other professional regulation through their participation in advisory committees to the Board. In addition, the Taskforce has noted that it may be appropriate to delegate some powers of the Board and the Ombudsman to the profession.
Courts will, of course, maintain their inherent jurisdiction to admit and discipline practitioners.
other areas of reform
The elimination of unnecessary duplication and the simplification of regulation has been one of the main goals of the project. Currently, regulation of the legal profession totals over 4,700 pages of legislation, regulations and rules across the country. Although it is still being refined, it is anticipated that the National Legal Profession Bill will be less than 200 pages. Underpinning this efficiency is a focus on outcomes-based legislation – that is, focusing on the outcomes to be achieved, rather than prescribing the means by which they should be achieved.
Although it is still being refined, it is anticipated that the National Legal Profession Bill will be less than 200 pages.
The proposed national system will also eliminate significant duplication, for example:
• the national practising certificates proposed by the Taskforce would do away with eight different systems of practising certificate types, eight different systems for practising certificate renewal and the need for law practices to manage multiple compliance requirements for practising certificates.
Some have queried whether the proposed reforms will benefit only large law practices or those that practise in more than one jurisdiction. The reforms will, of course, bring considerable benefits to multi-jurisdictional firms in the form of streamlined compliance requirements; however, all practitioners will undoubtedly benefit from the many proposed improvements to the regulatory system, including from simplification and
The National Board and Ombudsman would promote uniformity, but would delegate many of their functions back to state and territory entities nominated by governments in each jurisdiction.
Funding will also remain in state and territory hands. The Taskforce will propose a model for the distribution of interest from multi-jurisdictional trust accounts, which largely maintains the status quo. Accordingly, under the proposals, interest from statutory deposits in each jurisdiction will continue to go directly to state and territory public purpose funds. Similarly, the Taskforce is not proposing to move away from each state and territory managing its own fidelity fund.
maintaining the Independence of the Profession
Another issue that has been the subject of considerable debate has been the role of the legal profession in their own regulation. It is my strong personal view that independence within our justice system is fundamental. Lawyers must be free to take up the causes of all citizens without fear or favour, even when these causes are not palatable to governments or evoke the scorn and ridicule of the popular press. This principle is fundamental to access to justice and to the rule of law.
The profession over many years has made important and, for the most part, voluntary contributions to maintaining a strong professional code and system of accountability that ensures lawyers meet the high ethical standards required of them. Increasingly, however, it is being appreciated that an appropriate level of consumer representation would be beneficial. What has been proposed, therefore, is a system of co-regulation with a central, but not exclusive, role for the profession and its representative associations.
March 2010 15
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deregulation generally and the adoption of best practice and other innovations. I believe that creating a truly seamless national legal profession will provide greater opportunities for law firms from smaller states who, in the main, carry lower overheads, to compete on a more or less level playing field.
The Way Forward
It is the lessons of previous attempts at reform that have guided the currently proposed model. The proposed applied law will operate differently from the model law as it would institute uniformity initially and then establish a process for future amendments to be made by all jurisdictions working together to enact the same legislative changes.
I am pleased to report that the reform project is on track and a Bill will be ready for consideration by COAG at its meeting in April. I am also pleased to announce that the Taskforce will not only produce a draft Bill for COAG consideration, but also proposed National Rules for the profession – a significantly larger undertaking than was initially proposed.
I am aware that there has been a degree of anxiety in relation to the project’s time frame. Understandably, people want
time to be able to consider the proposals, provide feedback
and offer ideas for further refinement. To that end, it is my
intention to ask leaders in April to agree in general terms to the
legislative package of the Bill and the National Rules, subject to
consultation, and to agree to the package being put out for a
further consultation period. This timetable will allow more time
for detailed examination and debate of the recommendations
by the Consultative Group and the general public. I will also ask
leaders to agree to me reporting back to them at the end of this
consultation period with a finalised legislative package as well as
an Inter-Governmental Agreement for signature.
conclusion
Uniform, simpler and more effective national legal profession
regulation is long overdue. I look forward to the debate that
the proposals in the draft Bill will inevitably generate. This
process of research, consultation and public debate is vital to
the development of a robust, sustainable system which will serve
both the profession and the broader community for decades to
come.
The Society has announced the latest round of
Quality Practice Standard (QPS) workshops, for
firms who wish to earn their QPS accreditation.
The Compulsory QPS Workshop will be held on
Monday, 29 March 2010 from 4pm to 6pm, while
the Optional QPS Workshop will be held on Monday, 19 April
2010 from 4pm to 6pm. Attendees at each seminar will earn
two CPD points per seminar: one point in Competency Area 1
(Legal Skills and Practice) and one point in Competency Area 2
(Values)
There are currently 193 firms registered for certification to the
QPS. 43 of these were presented with their Approved Quality
New QPS Workshop Dates Announced
Practice certificates and 18 of the 43 firms have achieved the
10th anniversary of their accreditation.
QPS has been developed to improve the quality and
competitiveness of legal practices in Western Australia through
the development of better relationships with their clients and
improved file management and efficiency. QPS recognises
firms that have developed and adhere to documented internal
systems and processes. These systems are designed to improve
client satisfaction by clearly establishing and refining internal
working procedures and avoiding wastage.
For more on the benefits of accreditation and how to become
a QPS-accredited firm, visit www.lawsocietywa.asn.au/qps.htm
16 March 2010
News
Twenty lawyers, paralegals
and administrative
staff from Gosnells
Community Legal Centre
(GCLC) paid a visit to
Francis Burt Law Education Centre
(FBLEC) in February. The group
viewed the Supreme Court in session,
participated in a debrief in an empty
court and re-enacted the trial of
Audrey Jacob in the Old Court House
Museum. The GCLC staff said it was
a valuable experience as many of
them hadn’t visited a court before.
Any CLCs or law firms who wish
to arrange a free group tour at
FBLEC for professional development
purposes, can do so by calling
the Society’s Education Officers
on 9221 8705 or email schools@
lawsocietywa.asn.au
Gosnells CLC Tours FBLEC
more than 50 Jewish lawyers and guests
attended the WA Society of Jewish Jurists
and Lawyers Inc’s drinks function held on
the fifth night of Chanukah, 15 December
2009, at Indigenart-Mossenson Gallery.
Guests included the Chief Justice of Western Australia, the Hon
Wayne Martin; Her Honour Judge Antoinette Kennedy, Chief
Judge of the District Court of Western Australia; the President of
the State Administrative Tribunal, the Hon Justice John Chaney,;
Judge Simon Stone of the District Court and the Hon Michael
Mischin MLC, representing the Attorney-General.
David Parry, the President of the WA Society of Jewish Jurists and
Lawyers Inc, acknowledged the traditional Aboriginal owners of
WA Jewish Lawyers Chanukah Drinks
Perth, the Noongar People, and noted that this acknowledgment
was particularly appropriate during Chanukah this year.
During Chanukah, Jews celebrate a miraculous victory 2,200
years ago in Israel, which enabled the continuance of Jewish
identity, religion, culture and connection with the land.
In 2009, the indigenous and Jewish community marked the 70th
anniversary of the courageous petition presented by Australian
Aboriginal elder William Cooper and the Aboriginal League
to the German Embassy deploring the treatment of Jews in
Germany. At a time when the rest of the world said nothing
or sought to appease the German regime, one dispossessed
people reached out to another dispossessed people. This was a
profoundly significant event in Australian history.
March 2010 17
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certain industrial instruments that regulate employees’ terms and conditions may bind a corporation or person that succeeds to or takes over a business or part of a business. Although the policy foundation of these provisions has been aimed at
protecting employment conditions in cases of “transmission, succession or assignment” of a “business” the regime as interpreted by the courts has not been adequately tailored to the modern economic and business environment.
The Fair Work Act 2009 (FW Act) has put a wider legislative definition to the transfer of business than the previous Workplace Relations Act 1996 (WRA). This article will look at the various reform aspects of the transfer of business under the FW Act. The new provisions are contained in Parts 2-8 of the FW Act.
The reason for the new definition is seemingly the Labor government’s dissatisfaction with the judgements or decisions in the interpretation of the “transmission of business” (now “transfer of business” under the FW Act) rules under the WRA which gave a deleterious impact upon employees who continued to perform the same or similar work with the new employer. The relevant provisions under the WRA required the new employer to become “the successor, transmittee or assignee” of the whole or part of a business of the old employer. The words “successor, transmittee or assignee” received consideration over the years culminating in the leading authority in the High Court decision in PP Consultants Pty Ltd v Finance Sector Union of Australia [2000] 201 CLR 648; [2000] 176 ALR 205, in which
Transfer of Business Under the Fair Work Act 2009
the High Court formulated the “business characterisation test” to determine if a transmission of business had taken place. It applied a three-step test:
(a) identify or characterise the business or relevant parts of the business of the first employer
(b) characterise the transferred business activities of the new employer
(c) compare the two. If they bear the same character, then the new employer has succeeded to the business of the old employer.
Another leading case followed applying the characterisation test: Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] 214 ALR 24. This was followed in the Federal Court by Urquhart v Automated Meter Reading Services (Australia) Pty Ltd [2008] FCR 73; 177 IR 451.
According to this characterisation test, it is clear that the work activities of the employees are not relevant for the purpose of determining whether a transmission of business has taken place.
We now consider the changes to the transmission of business regime made to the FW Act. Transmission of business is now renamed “transfer of business” and has considerably broadened its reach. The emphasis in the definition provisions is on “balance” – a balance between the transferring employees’ terms and conditions and the interests of employers in running an enterprise efficiently (s309).
Teddy lim
18 March 2010
Feature
In light of this there are provisions that deal with the transfer of a business and the transfer of employment. We now discuss the provisions.
What constitutes a Transfer of business?
A transfer of a business occurs when the following conditions are satisfied (s311):
(a) the employment of an employee of the old employer has terminated
(b) within three months after the termination, the employee becomes employed by the new employer
(c) the work (“the transferring work”) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer.
The present conditions differ quite substantially from that in the WRA, which referred to this situation as a “transmission of a business” but did not give it any definition. So it was left to the courts to determine the definition. And unlike the present definition, the High Court (in a string of cases leading up to Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] 222 CLR 194; [2005] 214 ALR 24) looked not at what the new employee performs for the new employer (i.e. whether performing the same work or substantially the same), but at what the new employer enjoys (or otherwise) from the former employer. It would appear that the above provisions are inserted to focus attention to the employees’ work. Notwithstanding this, it would appear that there are areas in the present provisions that may be disputed e.g. what does “substantially the same work” mean – more likely than not? how much more likely?, does the termination of employment include a resignation? and so on. The Explanatory Memorandum, however, states that the provisions are not to be construed in a technical manner.
In addition to the above conditions, there is a “connection” condition between the old employer and the new employer and a transfer of business will take place if:
(a) the new employer, or its associated entity, owns or has beneficial use of some or all of the assets (tangible or intangible) that the old employer, or its associated entity, owned or had beneficial use of and that relate to the transferring work and that relate to, or are used in connection with, the transferring work
(b) the transferring work is outsourced from the old employer, or its associated entity, to the new employer, or its associated entity
(c) the new employer, or its associated entity, ceases to outsource work to the old employer, or its associated entity.
One question to consider is whether there is a transfer of business if, as in the Gribbles case, no assets were transferred from the old employer to the new employer. This case was decided under the WCA regime and it is uncertain if a court will reach a similar decision particularly if cognisance is to be made of the Explanatory Memorandum not to give the provisions a technical application.
“Associated entity” has the meaning in s50AAA of the Corporations Act 2001 and covers, for instance, the relationship between a holding company and its subsidiary and is put into the Act to recognise that there is a variety of ways that transactions may be structured and (as stated in the Explanatory Memorandum) to ensure that employers cannot avoid their obligations under instruments by transferring their employees.
In regard to the outsourcing provision, it remains to be seen if the court will apply the characterisation test. The likely outcome when applying this test – following the Urquhart case – will be that the outsourced function is ancillary to the principal business of the outsourcing entity and hence not a part of its business.
On the other hand, the court may apply the “substantial identity” test in s311(1)(c) and conclude that a transfer of business has occurred.
Transfer of Instruments
A company or person that intends to acquire a business may find that he is bound by particular instruments that regulate the terms and conditions of the employees prior to the acquisition (referred to in the FW Act as “transferable instrument”). The Act sets out the circumstances in which transferable instruments and certain modern awards that covered the old employer and the transferring employees (including high-income employees) cover the new employer, the transferring employees and certain non-transferring employees and organisations.
Section 312(1) provides a definition of “transferable instrument”. These are: enterprise agreements, workplace determination and named employer awards.
Modern awards are omitted from the definition as they are not transferable instruments. This differs from the Work Choices transmission regime, in which federal and state awards transfer and bind the transferee. The reason for the omission is this: because modern awards apply on an industry basis, the transferring employees will be covered by the same award if they are performing the same or substantially the same work.
consequences of Transfer
The consequences of transfer are covered in Division 2 of Parts 2-8 of the FW Act. Firstly, if a transferable instrument covered the transferor and the transferring employees immediately before the termination of their employment with the transferor, then:
A company or person that intends to acquire a business may find that he is bound by particular instruments that regulate the terms and conditions of the employees prior to the acquisition.
March 2010 19
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(a) that transferable instrument covers the transferee and the transferring employees in relation to the transferring work after the time the transferring employees become employed by the transferee
(b) while the transferable instrument covers the transferee and the transferring employees in relation to the transferring work, no other enterprise agreement or named employer award that covers the transferee at the transfer time covers the transferring employees in relation to that work.
This means, for example, that an enterprise agreement or named employer award that already covered the new employer would not cover a transferring employee who is covered by a transferable instrument even if it is capable of doing so on its terms (Explanatory Memorandum).
What then is the situation where employees have not been transferred from the transferor? Section 314 provides that an employee who has not been transferred from the transferor and who is hired by the transferee after the transfer can become bound by the transferable instrument where at the time of engagement there was no enterprise agreement or modern award that covered the transferee and the new employees.
In addition, a transferable instrument that covers a new employer and a transferring employee includes any individual flexibility arrangement that operates as a term of the transferable instrument (s313(2).
continuity of Service
Apart from the transfer of business provisions, there are provisions dealing with the transfer of employment in which “service” and “continuous service” (s22) are considered.
These provisions apply where a transferring employee is employed by a transferee the effect of which is that service with the transferor counts as service with the transferee. This means there is no break in the employee’s continuity of service; this accumulated service being for the purpose of entitlements under the FW Act, subject, however, to several qualifications:
(a) if the employee has already had the benefit of an entitlement calculated by reference to service with the transferor then that period of service cannot be counted for entitlements against the transferee (e.g. leave entitlement or notice period)
(b) the transferee may decide not to recognise a transferring employee’s service with the transferor in regard to annual leave (s91(1) or redundancy pay (s122(1)).It should be noted, however, that this decision is only available to new employers where the transfer is between non-associated entities. No doubt in situations like this the transferring employee would then have looked to the transferor to recover these entitlements
(c) If the transferor and the transferee are not associated entities, an employee’s service with the transferor is not counted in the “period of employment” towards qualifying for unfair dismissal protection. This is subject to the transferee informing the transferring employee accordingly in writing before the new employment commenced.
Generally, in a transfer of business, the transferor would have committed the transferee to offer to the transferring employee’s terms and conditions “no less favourable” than their existing terms and conditions. However, in light of the qualifications above, a transferee must ensure that the necessary exceptions be made to the “no less favourable” clause in any agreement with the transferor.
New Non-transferring employees
As an exception to the general rule in s313 that transferable instruments only cover transferring employees, there are certain circumstances where a transferable instrument covers non-transferring employees of the transferee. It should be noted that this differs from Work Choices, wherein a transferable instrument could only apply to employees who had transferred from the old employer.
The circumstances are as follows:
(a) the transferable instrument covers the new employer and a transferring employee under s313(1)(a)
(b) the new employer employs a non-transferring employee after the transferable instrument starts to cover the new employer
(c) the new non-transferring employee performs the transferring work
(d) no other enterprise agreement or modern award covers the new employer and the non-transferring employee at the time the new non-transferring employee is employed.
high-income Transferring employees
The Act anticipates a situation in which a high-income transferring employee may be given a guarantee of annual earnings for a guaranteed period and some of the guaranteed period occurs after the transfer time the transferring employee becomes employed by the new employer.
In such a case, the guarantee of annual earnings is treated as if it had been given to the transferring employee by the new employer except that the new employer is not required to pay the guarantee of annual earnings in relation to any part of the guaranteed period before the transfer time (s316).
High income is defined in the FW Regulations in accordance with an indexed formula amounting to not less than $100,000.
A guarantee of annual earnings only applies to high-income employees who are covered by a modern award and to whom an enterprise agreement does not apply.
organisations covered by Transferable Instrument
Section 315 outlines in a rather convoluted way, the circumstances in which employee and employer organisations can be covered by a transferable instrument.
Section 315(1) provides that a named employer award covers an employer organisation in relation to the new employer where the named employer award:
• covers the new employer because of s313(1)(a)
20 March 2010
Feature
In the case of non-associated entities, when a transfer of business occurs, a new employer can choose not to recognise service of the employee with the old employer for the purposes of the unfair dismissal provisions. However, they must inform the employee in writing before the new employment starts.
Powers of Fair Work australia
The Act provides for Fair Work Australia (FWA) to make certain orders relating to transferable instruments where there is or is likely to be a transfer of business. The types of orders are as follows:
(a) orders covering new employer and transferring employees (see s318)
(b) orders covering new employer and non-transferring employees (see s319)
(c) variation orders (see s320).
orders covering New employer and Transferring employees
The FWA is empowered to make the following orders:
• that a transferable instrument that covers the new employer and the transferring employee does not cover them
• that an enterprise agreement or named employer award that covers the new employer covers the transferring employee. This provision allows the new employer that is already covered by an existing enterprise agreement or named employer award to apply to FWA for an order that a transferring employee also be covered by that enterprise agreement or named employer award, instead of the transferable instrument.
orders covering New employer and Non-transferring employees
The FWA may make the following orders:
• That the new employer and non-transferring employee will not be covered by a transferable instrument.
• That the new employer and non-transferring employee will be covered by a transferable instrument even though another one at the workplace applies.
• That an enterprise agreement or a modern award that covers the new employer will not cover a non-transferring employee.
The following have standing to apply for the above two orders: the new employer, or the relevant trade union (e.g. if the application relates to an enterprise agreement – a union that is or is likely to be covered by the agreement), or a transferring employee (in the case of a s318 order), or a non-transferring employee (in the case of a s319 order). Notice the absence of any reference to the transferor. This means that the transferor does not have capacity to apply for an order. This differs from the WRA where in s590(1) the outgoing employer may apply albeit before transfer time.
Variation orders
FWA is also empowered to vary a transferable instrument that covers a new employer (s320(2)):
High income is defined in the FW Regulations in accordance with an indexed formula amounting to not less than $100,000.
• covered the old employer immediately before the termination of a transferring employee’s employment with the old employer.
Section 315(2) enables employee organisations to be covered by a named employer award on a transfer of business. It provides that if:
• a named employer award covers the new employer and a transferring employee because of paragraph 313(1)(a)
• the named employer award covered an employee organisation in relation to the transferring employee immediately before the termination of the employee’s employment with the old employer
then the named employer award covers the employee organisation in relation to the transferring employee and any non-transferring employee who is covered by the award because of a provision of this part or a FWA order and performs the same work as the transferring employee.
Section 315(3) makes clear that, to avoid doubt, an enterprise agreement covers an employee organisation where:
• the enterprise agreement covers a transferring employee or a non-transferring employee because of a provision of this part or a FWA order
• an enterprise agreement covered an employee organisation immediately before the termination of a transferring employee’s employment with the old employer.
In spite of its complexity, the objective of the provisions is clear – to ensure that in a transfer of business, employer organisations and trade unions continue to have award coverage and further that trade unions continue to have enterprise agreement coverage.
Transfer of business and unfair Dismissal
Employees are precluded from bringing an unfair dismissal claim unless they have completed a “minimum employment period” at dismissal time. This period varies depending whether the employer is a small business (i.e. with fewer than 15 employees) or a larger employer. With the latter the period is 12 months while with the former it is six months.
In a transfer of employment between associated entities where the transferring employee’s service is continuous, the employee can access unfair dismissal remedies without having to serve another minimum employment period.
March 2010 21
Feature
• To remove terms that are not capable of meaningful operation because of the transfer of business to the new employer. The Explanatory Memorandum gives an example of this: a term in an enterprise agreement relating to participation in an employee share plan of the old employer. Such a term is not capable of meaningful operation because of the transfer of business to the new employer.
• To remove ambiguity or uncertainty (e.g. a term in a transferable instrument refers to payment according to “company policy” where it is unclear whether it refers to the old employer or the new one).
FWA may make the variation only on application by:
(a) a person who is, or is likely to be, covered by the transferable instrument; or
(b) if the application is to vary a named employer award – an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the named employer award.
matters That FWa must Take Into account
In exercising its powers under s318, s319,and s320, FWA must take into account the following criteria:
(a) the views of:
(i) the new employer or a person who is likely to be the new employer
(ii) the employees who would be affected by the order
(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment
(c) if the order relates to an enterprise agreement – the nominal expiry date of the agreement
(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace
(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer
(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer
(g) the public interest.
As may be seen from the criteria above, the list expands on the object enunciated in s309 which is to provide a balance between:
(a) the protection of employees’ terms and conditions of employment under enterprise agreements, certain modern awards and certain transferable instruments; and
(b) the interests of employers in running their enterprises efficiently
if there is a transfer of business from one employer to another employer.
It is still early days to assess how FWA will interpret some of these criteria. As may be seen from the list, there may be difficulties in applying some of the criteria especially those
concerning the interest of the employers in running their
enterprises efficiently. For instance, how is “productivity of
the new employer’s workplace” measured? What constitutes
“negative impact”? What is “economic disadvantage”? How
significant is “significant”? What is “business synergy” and
what is the degree of synergy required?
For an early case on this order, you might look at Queensland
Nickel Pty Ltd [2009] FWA 335. This case concerns an application
to FWA for a s318(1)(a) order, namely an order that a transferable
instrument not cover the new employer and the transferring
employees. As indicated above, the difficulties in applying some
of the criteria are evident such as in the following: “negative
impact on the productivity of the new employer’s workplace”,
“significant economic disadvantage”, “degree of business
synergy” and “public interest”. Further elaboration of these
criteria by FWA will no doubt emerge in due course.
Teddy Lim (BA, Bar-at-Law, MTax) practised in Singapore for
20 years and has also held the positions of Senior HR Manager
SIA Engineering, Legal Manager Jupiter Air Pty.Ltd, Industrial
Relations Adviser Singapore Employers Federation and Assistant
Director, National Trade Union Congress, Singapore. He has also
appeared before the Industrial Commission in NSW.
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24 March 2010
Welcome to the first Young Lawyers News
of 2010. It gives me great pleasure to
write this report as the 2010 Convenor
of the Young Lawyers Committee (YLC).
We have some great events lined up for
2010, which started with our Calendar Kick-Off event a few
weeks ago. I encourage you all to check out the YLC website
(www.lawsocietywa.asn.au/ylc) to find out more about the YLC
and the events we are running.
Of course, my thanks go to our past Convenor, Kate Cook, for
her tireless work in 2009 and we welcome Kristina Botsis and
Adam Ebell as new YLC Deputy Convenors in 2010. The YLC
in 2010 has been refreshed by a number of new faces from a
cross-section of firms and practice types who are enthusiastic to
organise events and represent the views of young lawyers and
law students to the Society.
YLC Convenor’s Report
As well as events, the YLC and the Junior Members of the Council
of the Society are also keen to make sure that issues confronting
young lawyers are addressed. The YLC, through Council, has
been successful in having the Society establish a committee
in relation to depression and psychological distress. The YLC
was also instrumental in coordinating a Society response to the
proposed (now introduced) Legal Services Modern Award and is
very conscious of the issues being confronted by young lawyers
as a result of the global financial crisis (GFC).
If you are interested in becoming involved in the activities of
the YLC and its working groups or would like to raise an issue,
please contact me or any of the YLC members.
I hope you all have a fantastic, happy and prosperous 2010 and
I look forward to seeing you all at our events.
Also remember, illegitimati non carborundum.
matthew Keogh
YLC ConvenorLawyer, Commonwealth Director
of Public Prosecutions
YLC in 2010convenor and Junior member of councilMatthew KeoghCommonwealth DPP
Deputy convenorAdam EbellCommonwealth DPP
Deputy convenorKristina BotsisLavan Legal
Junior member of councilDr Eric HeenanState Solicitor’s Office
Junior member of councilElaine WambeckNorton Rose
ordinary member
Kate Cook
State DPP
ordinary member
Ian McLeod
McLeods
ordinary member
Kate Pedersen
State Solicitor’s Office
ordinary member
Clinton Russell
Mallesons Stephen Jaques
ordinary member
Kelli MacMillan
Corrs Chambers Westgarth
ordinary member
Seranie Gamble
Aboriginal Legal Services
ordinary member
Hayley Cormann
Clayton Utz
ordinary member
Nicholas van Hattem
Freehills
ordinary member
Belinda McPhee
Blake Dawson
ordinary member
Michael Robbins
Cullen Babington Hughes
Young Lawyers News
March 2010 25
The Big Issue aims to reduce social isolation. Selling the magazine offers homeless, marginalised and disadvantaged people an opportunity to connect with the community. Engaging busy commuters can be a challenge – but Perth’s vendors aren’t strangers
to adversity.
Many meet this challenge by offering a little extra with their magazines. There’s Henry (profiled in a recent edition), who sells in Claremont, accompanied by his beautiful black Labrador, Ridgie. There’s Devo on Hay Street, who serves his editions with a dose of drum and bass, courtesy of a small stereo on his magazine rack. Then there is Craig, who spruiks his wares from the Terrace with some wicked wit. “I’ve got big issues, so can you!” He even tailors his slogans to the passers-by. As I go down the Terrace with a trolley of files, he tells me in a deep baritone that the magazine “makes a great read at the back of court”, or “The Big Issue: looks better on your trolley than I do off mine!”
In 2008, The Big Issue in Perth sought to begin Big Issue @ Work, a program to bring vendors into workplaces. The passionate and reliable Eve was an obvious choice as vendor. With its national support of The Big Issue and Perth partner Melanie Cave on The Big Issue Advisory Committee, Freehills was another easy choice as a trial workplace.
Eve got involved with The Big Issue several years ago, when her beautiful old home’s wiring failed and she was confronted with hefty electrician quotes. A friend suggested she could sell a few mags and she’s enjoyed some good chats and a bit of pocket money ever since.
It’s been a good match. Eve has been coming to Freehills for 18 months, bringing each fortnight’s new magazine and her take on the big issues raised. Freehills staff can come to the library and have a chat with Eve and get their latest copy. For those who can’t get away from their desks, Eve leaves a few copies and Freehills’ Michelle Webster coordinates a subscription service.
Just like the other Perth vendors, Eve has a few sales techniques up her sleeve:
“A lot of vendors just call out ‘Big Issue’, I like to show people particular highlights. In this issue, there’s a great feature on the battle against Gunns wood chipping in the Lucaston Valley”.
Eve explained the success of the magazine. Vendors purchase the magazine from The Big Issue office for $2.50 and sell for
Bringing the Big Issues to the Office
$5.00. “You can go out and sell for as long as you can manage. You are your own manager”. Selling the magazine can help people find themselves. “Some of the vendors have felt they aren’t viewed as people, just a shadow person amongst the crowd.”
As well as selling the magazines in public and moves to sell within workplaces, The Big Issue has long been developing other programs. Eve seems most proud of the Spirit of the Street’s Choir. She sings and Henry (with Ridgie by his side) plays drums. The music-loving Devo plays bass, but he’s most passionate about the street soccer team. Eve said “Devo really held the team together in the early days”. Big Issue’s international offices recently worked together and set up a World Cup of street soccer. When Devo’s not kicking a ball, his cycling has taken him to competitions in Queensland.
Big Issue @ Work is the most recent of many programs that have successfully connected people in the community. Other Perth offices are getting involved. Several members of the Corrs Giving Back Committee attended The Big Issue Breakfast, hosted by Freehills, in November last year. Whilst Corrs has always been a supporter of The Big Issue through its sponsorship, staff were particularly inspired by the stories of hardship and triumph told at the breakfast. These stories left the Corrrs Committee determined to assist The Big Issue in its aim to increase its sale numbers in 2010. As a result, this year Corrs will implement the Big Issue @ Work initiative.
Nicholas van hattem
Solicitor, Freehills
Young Lawyers News
26 March 2010
The Law Society of Western Australia and the Young Lawyers Committee (YLC) have identified depression and psychological distress in the legal profession as a high priority in 2010.
In mid-2009, the YLC considered the Council of Australian Law Deans’ report, Courting the Blues: Attitudes towards depression in Australian law students and lawyers. The YLC requested that the Society consider this report and conduct a review of the Society’s existing strategies dealing with depression and psychological distress amongst lawyers. This suggestion was unanimously supported by the Society’s Council, which approved at its October 2009 meeting the establishment of an Ad Hoc Committee on Psychological Distress and Depression in the Legal Profession.
The YLC took the view that this issue was of special importance in light of the global financial crisis, redundancy programs and the ‘collapse’ of the Articled Clerk Recruitment Monitoring Scheme in 2009. These factors are placing particular financial, emotional and professional pressures on lawyers at all levels.
The Ad Hoc Committee, convened by Dr Christopher Kendall, Vice-President of the Law Society and comprising representatives from a cross-section of the legal profession, including young lawyers, government practitioners, sole or small firm and country practitioners, the Western Australian Bar Association, Family Law Practitioners’ Association, Women Lawyers WA and University Law School Deans’ representative and additional expert advisors as required, will commence meeting on 31 March 2010.
Depression and the Legal Profession
Some of the Society’s existing strategies include:
1. lawcare (Wa) – confidential counselling service for legal practitioners and their families, friends and colleagues (the latter where they are concerned about a practitioner).
2. Senior advisors Panel – provides practitioners with access to experienced colleagues willing to discuss legal practice issues, business issues, professional conduct issues and ethical issues.
3. mentoring Program – A formal program supervised by a mentoring consultant is offered to junior practitioners.
4. Grievance resolution – this is a conciliatory and informal process to deal with clients’ complaints through the Society’s Professional Conduct Committee.
5. Graduate Telephone advisory Service – This service consists of a panel of practitioners willing to assist graduates with matters pertaining to their employment during their graduate year. All discussions are conducted on a confidential basis.
6. member Privilege Services – include member discounts for a range of therapeutic massage services, health club memberships and a personal concierge service (for assistance in creating organised and functional work and home environments).
In coming months, the Ad Hoc Committee will consult across the profession to ascertain what can be done to improve the support services provided to all lawyers. If you are interested in making submissions to the Ad Hoc Committee, please contact Kelly Hick at the Society on 9324 8612.
If you require assistance with depression, professional or personal challenges, LawCare (WA) can be contacted on 9480 9200 (24 hours a day, seven days a week).
Date event Working Group
26 March 2010 YLC Mixed Beach Volleyball ^ Social and Sport
20 April 2010 YLC Basics Series – A View from the Bench Education and Advocacy
22 April 2010 Welcome to the Profession ^ (Invitation only) Graduate Interests
29 April 2010 Graduate Networking Function ^ Graduate Interests
6 May 2010 YLC Basics Series – What’s Happening with Human Rights? (TBC) Education and Advocacy
8-29 May 2010 YLC Advocacy Workshop Series Education and Advocacy
June 2010 Golden Gavel Social and Sport
July 2010 Winter Wellness Social and Sport
17-18 July 2010 YLC Advocacy Country Weekend ^ Education and Advocacy
^ Event subject to confirmation
YLC Events Calendar 2010
Young Lawyers News
March 2010 27
The YLC welcomed 2010 with drinks and canapés at Tiger Lil’s Tavern for the inaugural Calendar Kick Off event. Sponsored by DX Solutions and Interpeople, this event was an excellent opportunity for many young lawyers to catch up after the Christmas break.
The combination of drinks, canapés, music and good company proved to be the perfect start to the year.
The Year ahead
This event was the first of many social and networking events the YLC will be organising this year. The YLC, as always, has a jam-packed schedule planned, with some new initiatives as well as some perennial favourites.
For the sporty amongst us, March will give you the opportunity to test your spiking and serving skills at the YLC Beach Volleyball Tournament. This will be followed by the Touch Rugby Competition and the annual Mixed Netball Competition later in the year.
At the end of April, the YLC has a new event lined up: the YLC Speed Networking Event. Here, you will have the opportunity
YLC Calendar Kick Off
to test your networking skills by interacting with your peers and colleagues in a “speed networking” exercise. Drinks and canapés will be available to help with the simulation of a client event.
Newly admitted lawyers will be acknowledged at our Welcome to the Profession breakfast in April. Details of this event will be released soon.
The YLC Advocacy Workshop Series and the intensive YLC Advocacy Weekend will also return this year and will offer young lawyers the opportunity to pick up some invaluable skills from experienced advocates in a supportive and learning environment.
An annual favourite, the YLC Golden Gavel will be back again in June. Now is the time to consider which lawyer would best represent your firm in this highly entertaining event.
As always, keep a look out for the Friday Facts, the YLC eNewsletter and the Society’s website for further information and registration details.
belinda mcPhee
Articled Clerk, Blake Dawson
Cathryn Greville, Daniel Morris, Adam Sharpe and Tegan Smith
Chris Pearce, Jeremy Birch and Kate Pedersen
Daniel Vivian, Anne Boger and Spencer Liederfreund
Matthew Keogh, Chris Bates, Kristy Campbell, Adam Ebell and Sean Pary
Annaleen Smuts, Ian McLeod and Lucinda Plowman
Guy Peterson and Clinton Russell
Ilona Burra-Robinson and Sean Pary
Belinda McPhee, Tom French and Daniel Johnson
Clinton Russell, Isabella Bosworth, Varun Ghosh and Elosie Fardon
Young Lawyers News
28 March 2010
australia’s military justice system is set to be overhauled following a recent decision of the High Court, which declared the Australian Military Court (AMC) to be unconstitutional. The High Court unanimously ruled that the AMC did not
satisfy the requirements of a Chapter III court for the purposes of Australia’s Constitution.
Facts
On 30 March 1998 the plaintiff, Mr Brian Lane, enlisted in the Royal Australian Navy (RAN). On 14 March 2007 Mr Lane was discharged from the RAN and transferred to the Naval Reserve. On 8 August 2007 Mr Lane was charged under the Defence Force Disciple Act 1982 (Cth) (DFDA) with the offences of “an act of indecency without consent” 1 and assaulting a superior officer. 2 The offences were alleged to have occurred in August 2005, while Mr Lane was a member of the RAN. Mr Lane was later discharged from the Naval Reserve on 3 September 2007.
On 21 September 2007 the Director of Military Prosecutions sought the convening of a court martial to try the charges against Mr Lane. That request was later withdrawn and referred by the Registrar of the AMC to be heard by that Court, in accordance with the transitional provisions which established the AMC and Registrar of the AMC. 3
On 26 November 2007 the Chief Military Judge of the AMC nominated the first defendant, Military Judge Colonel Peter Morrison, to try the charges against Mr Lane.
The charges were initially listed for hearing before the AMC on 25 March 2008. However, in objection to the AMC’s jurisdiction, Mr Lane filed an application in the High Court seeking an order prohibiting Colonel Morrison from hearing the charges and a declaration that the provisions of Div 3 of Pt VII of the DFDA (ss114-121) were invalid.
Colonel Morrison entered a submitting appearance and the Commonwealth appeared as the second defendant. The Attorney-General for Western Australia intervened in the
Back to the Drawing Board for Australia’s Military Justice SystemLane v Morrison & Anor (2009) 83 ALJR 993
proceedings in support of Mr Lane. All parties agreed that the relevant date for determining the question of validity was 1 October 2007, the date at which the AMC was first convened. 4
background
Division 3 of Pt VII was inserted into the DFDA by the Defence Legislation Amendment Act 2006 (Cth) (2006 Amendment Act) following substantive inquiry by the Senate Foreign Affairs, Defence and Trade References Committee into the effectiveness of the Australian military justice system in delivering “impartial, rigorous and fair outcomes and mechanisms to improve the transparency and public accountability of military justice procedures.” 5
The provisions of Div 3 of Pt VII include s115 (the jurisdiction of the AMC); s116 (the exercise of the jurisdiction of the AMC); s117 (which provides that the AMC may sit in or outside Australia); s118 (referral of charges to the AMC and nomination of a Military Judge to try a charge); s119 (the seal of the AMC); s120 (AMC stamp); and s121 (staff to assist the AMC). 6
The AMC was established by s114 of the 2006 Amendment Act, to replace the former courts-martial system:
114 Creation of the Australian Military Court
(1) A court, to be known as the Australian Military Court, is created by this Act.
Note 1: The Australian Military Court is not a court for the purposes of Chapter III of the Constitution.
Note 2: The Australian Military Court is a service tribunal for the purposes of this Act: see the definition of service tribunal in subsection 3(1).
(1A) The Australian Military Court is a court of record.
(2) The Australian Military Court consists of:
(a) the Chief Military Judge
(b) such other Military Judges as from time to time hold office in accordance with this Act.
Since its inception, the AMC has heard 171 cases. 7
amy Salapak
Solicitor, Hotchkin Hanly
Young Lawyers News
March 2010 29
The Issues
The issues to be determined by the High Court were, first, whether the 2006 Amendment Act, in creating the AMC, fell within the description of a law in relation to military justice that could be supported by s51(vi) 8 of the Constitution; and, secondly, whether the power conferred on the Parliament by s51(vi) extended to include the AMC as a “Court”, in accordance with ss71 and 72 of the Constitution. 9
The Submissions
Counsel for the Commonwealth submitted that s114 and the other provisions of Div 3 of Pt VII of the DFDA, were enacted pursuant to the naval and military defence power under s51(vi) of the Constitution, 10 and on that basis the AMC was not a Court that fell within the ambit of s71 of the Constitution, being “such other federal courts as the Parliament creates.” 11
The Commonwealth contended:
“… that the replacement of the courts-martial system by the AMC was but a ‘modernisation’ of terminology and was not a matter of substance.” 12
It was further submitted that the AMC did not differ in any significant aspect from the former service tribunals, most notably naval and military courts martial, which had been held not to exercise the judicial power of the Commonwealth. 13
In support of Mr Lane’s primary submission that the legislation purporting to create the AMC was invalid, Mr Lane relied upon the amendments made to the DFDA by the Defence Legislation Amendment Act 2008 (Cth) (2008 Amendment Act) to hear “appeals” from the decisions of summary authorities under the DFDA. 14 The Court deemed it neither necessary nor appropriate to consider the amendments introduced by the 2008 Amendment Act on the ground that the proceedings had been commenced under the provisions in question (Div 3 of Pt VII). 15
Mr Lane sought to further argue against the invalidity of the provisions establishing the AMC on the ground that s68 16 of the Constitution prohibited the creation of the AMC:
“by reason of [it] being separate from and unlawfully fettering ‘command’, to which the law making power in s51(vi) is subject.” 17
The Court deemed it was not necessary to consider Mr Lane’s arguments in relation to s68, as the independence of the AMC to make determinations in respect of guilt or innocence, without reference to the chain of command, was considered significant in determining whether the AMC exercised the judicial power of the Commonwealth. 18
Mr Lane also contended that as the AMC was created as a court and, as a court of record, it exercised the judicial power of the Commonwealth. In support of this contention, Mr Lane focussed on the AMC’s power to deal with “contempt in the face of the Court”, 19 arguing that the power that had been conferred on the AMC demonstrated that the AMC exercised the judicial power of the Commonwealth. 20
French cJ and Gummow J
In a joint decision French CJ and Gummow J said that the powers of the Parliament to create courts were founded in ss71, 72 and 122 of the Constitution. Their Honours stated that the presence of s114(1A), which stated that the AMC “is a court of record”, emphasised a legislative intention to create a body resembling a Chapter III court, save for the manner of appointment and tenure of Military Judges. 21 However, their Honours distinguished the AMC on the grounds that its creation was not supported by s122, nor was the AMC comprised of Justices who were appointed by the Governor-General in Council and with the tenure as set out in s72 of the Constitution. 22
French CJ and Gummow J further held that:
“… the jurisdiction conferred upon the AMC by s115 of the Act, to try charges of service offences, involves the exercise of the judicial power of the Commonwealth otherwise than in accordance with [Chapter] III of the Constitution.” 23
In this regard, French CJ and Gummon J stated that the 2006 Amendment Act:
“…took the AMC beyond what is authorised by s51(vi) of the Constitution.” 24
hayne, heydon, crennan, Kiefel and bell JJ
In analysing whether the AMC was but a modernised version of the former courts-martial system, the Court concluded that it was evident that a central principle behind the relevant provisions of the 2006 Amendment Act was that the AMC was intended to be, unlike its predecessor, independent of the Australian Defence Force chain of command. 25
The Court stated that a court martial could only be convened by an order from the chain of command and that it could not make, and enforce, decisions in relation to guilt or punishment as those decisions were subject to review or confirmation by the chain of command. 26 In contrast, the Court found that the AMC had the power to make and enforce binding determinations in respect of guilt and punishment without intervention from the chain of command. 27 On this basis, the Court held that the power of the AMC to make and enforce its determinations, in the absence of intervention from the chain of command, was sufficient to conclude that it exercised the judicial power of the Commonwealth. 28
orders
The High Court made the following orders:
1 A declaration that the provisions of Div 3 of Pt VII of the DFDA are invalid.
2 Order that a writ of prohibition issue directed to Colonel Morrison prohibit him from proceeding further with the charges relating to Mr Lane identified in the charge sheet dated 8 August 2007 and referred to the AMC for trial.
3 The Commonwealth pay Mr Lane’s costs.
Post-decision
On 14 September 2009, the Minister for Defence, Senator John Faulkner, announced that Parliament had passed interim
Young Lawyers News
30 March 2010
legislation to give effect to Australia’s military justice system, while the Government implemented a more permanent judicial solution to establish a Chapter III court. 29
Notes
1. DFDA s61(3) as applying s60(2) of the Crimes Act 1900 (ACT).
2. DFDA s25.
3. Defence Legislation Amendment Act 2006 (Cth) No. 159 of 2006, Sch 1,
Pt 3, item 257 sub-items (1) and (2).
4. Lane v Morrison & Anor (2009) 83 ALJR 993 at [7].
5. ibid., at [71].
6. ibid., at [70].
7. Michael Pelly, “Australian Military Court takes a hit”, 28 August
2009, The Australian, http://www.theaustralian.news.com.au/business/
story/0,,25990532-17044,00.html
8. ALJR op. cit. s51(vi) pertains to the power of Parliaments to make laws
for the peace, order and good government of the Commonwealth with
respect to “the naval and military defence of the Commonwealth and of
several states and the control of the forces to execute and maintain the
laws of the Commonwealth.”
9. ibid., at [37].
10. ibid., at [77].
11. ibid., s71 states “The judicial power of the Commonwealth shall be
vested in a Federal Supreme Court, to be called the High Court of
Australia and in such other federal courts as the Parliaments creates and
in such other courts as it invests with federal jurisdiction. The High Court
shall consist of a Chief Justice and so many other Justices, not less than
two, as the Parliament prescribes.”
12. ibid., at [29].
13. ibid., at [78].
14. ibid., at [68].
15. ibid., at [68]-[69].
16. ibid., s68 states “The command in chief of the naval and military forces
of the Commonwealth is vested in the Governor-General as the Queen’s
representative.”
17. ibid., at [116].
18. ibid., at [116].
19. ibid., at [99].
20. Ibid.
21. ibid., at [20].
22. ibid., at [9].
23. ibid., at [10].
24. ibid., at [11].
25. ibid., at [95].
26. ibid., at [97].
27. Ibid.
28. ibid., at [98].
29. Australian Government Department of Defence, “Military Justice Bills
Passed Through Parliament”, 14 September 2009 http://www.minister.
defence.gov.au/Faulknerpl.cfm?CurrentId=9470
From the Terrace to the Vineyard
larissa Bray isn’t just any young lawyer. She is also a
winemaker and wine judge, qualified ski instructor;
she is fluent in French and Serbian and can drive a
forklift. Larissa started life on her family’s vineyard in
the Perth Hills. From there she went on to study Law/
Arts at UWA and graduated in 1998. After finishing her articles
in Canberra, she decided to deviate from her legal career to
explore winemaking.
She wrote to ‘the godfather of the Australian wine industry’,
James Halliday, who began his career as a lawyer and asked
for his advice. Mr Halliday offered Larissa a job in his company
Winepros, based in Sydney. She was a content producer, writing
articles that provided her a window into the wine industry. From
there and with her knowledge of wine, having grown up on a
vineyard, Larissa pursued a career in winemaking. Her love of the
English language and of writing is something that has prompted
her in both her legal and winemaking careers – although Larissa
doesn’t call winemaking work:
“I love the wine industry and winemaking; it is something
that I do, it’s not work.”
Larissa also writes various articles for wine magazines, including
Scoop and Cravings.
Tina mcaulay
Solicitor, Lawton Gillon
“I love the wine industry and winemaking; it is something that I do, it’s not work”.
Young Lawyers News
March 2010 31
Larissa enrolled and studied oenology (the science of wine and
winemaking) at Adelaide University and has since that time
completed about 12 vintages worldwide, including vintages in
Yarra Valley, Margaret River, Hunter Valley, New Zealand, France
(Loire, Burgundy, Bordeaux, Rhone) and Italy. Analogous to a
summer clerk at a law firm, Larissa started out as a cellar hand,
learning how to work with wine in the cellar. From there she
progressed to the position of a winemaker.
In her previous role as a winemaker for Cape Mentelle in
Margaret River, Larissa was given opportunities to travel to
Bordeaux in France and Cloudy Bay, New Zealand, as well as
host wine dinners on the East Coast.
In 2008 she was selected to participate in the Len Evans Tutorial
Master Class, a privilege given to 12, selected from 130 hopefuls
who taste $130,000 of the world’s best wine. After taking
out dux, Larissa has been given many judging opportunities in
France, New Zealand and Sydney.
Juggling both careers, Larissa started working as a part-time
young lawyer at Lawton Gillon in 2008. Larissa said:
“I am constantly amazed at the generosity shown to me
by Lawton Gillon. The Partners have encouraged me in
my fledgling business, giving me the flexibility of hours to
run my business as well as sponsoring my admission to the
Supreme Court in WA.”
or have aromas of strawberries, blackberries, French oak or even
cinnamon when wine is made from grapes, she laughed and
said:
“certain aromas and characters in the mouth give an insight
as to how the wine is made, how you distinguish one variety
from another.”
So, from the expert, here are her tips on less well-known wines
that are great for drinking:
Whites
• Mac Forbes Riesling from the Yarra Valley
• Tyrells Vat 1 Semillon from the Hunter Valley
• Freycinet Chardonnay from Tasmania
• Marchand and Burch Chardonnay from the Porongurups in
WA
reds
• Castle Rock Pinot Noir from the Great Southern
• Curly Flat Pinot Noir from the Macedon Ranges, Victoria
• Clonakilla Shiraz or Collector Shiraz from the Canberra
region
• Mount Mary’s Quintet and Pinot Noir from the Yarra Valley
But of course, as Larissa says:
“Certain wines complement your food better than others.
So, when choosing your wine, go with your gut instinct!”
Larissa will release her wines on 1 July 2010. They will be
available at her cellar door in Bickley and by mail order through
the new website www.aldersyde.com.au coming soon. So when
you’re next in the Perth Hills, stop in on a fellow lawyer and
check out Aldersyde Estate.
“I am constantly amazed at the generosity shown to me by Lawton Gillon. The Partners have encouraged me in my fledgling business, giving me the flexibility of hours to run my business as well as sponsoring my admission into the Supreme Court in WA.”
Larissa says: “I think everyone’s got a particular skill or talent and
you just need to find it”. Larissa plans to continue to practise law
and hopes to someday combine this with her winemaking and
knowledge of the wine industry.
Her dream is to make pinot noir from fruit in Burgundy and
import the wine back to Australia. Although there is no wine
she does not like, she admits that Montrachet, the wine region
in Burgundy that produces chardonnay (and may just be the
greatest white wine region in the world) is a favourite:
“Wines from this special area have exquisite balance,
intensity and fruity purity.”
Being ignorant of wines and winemaking myself, when I asked
Larissa why some descriptions of wines are that they taste like
Larissa Bray with her border collie
Young Lawyers News
32 March 2010
News
more than 90 people from across the legal and finance professions combined for an evening of sailing and networking at the inaugural Twilight Sailing Regatta on Friday, 19 February.
The event, presented by the Law Society of Western Australia and the Financial Services Institute of Australasia, was held at the Royal Perth Yacht Club. The rain held off on what was a warm and cloudy evening of fun competition and exhilarating sailing.
The teams were guided by experienced sailing coaches, including Olympic gold medal winner Elise Rechichi, and took to the water to test their sailing skills and see who could acquire bragging rights as the winning team.
First place in the regatta went to KPMG, with PricewaterhouseCoopers finishing second. The Marsh team, comprising Peter Waltham, Emma Burke and Kathryn Braley from Marsh and Society members Benn Hill, Denise Bowen, Donna Hogan and Sue McCarrey, came third.
The evening concluded with a barbecue and drinks on the yacht club lawn, overlooking the Swan River.
A big thank you goes to the event’s sponsor, Marsh.
Twilight Sailing Regatta
The KPMG team
The PricewaterhouseCoopers team
The Marsh team
The Freehills team
March 2010 33
From the Vine
Whilst everyone is entitled to their opinion, sometimes you still have to wonder why.
The other day I was enjoying a small beaker of red whilst watching Fox Sports News and one of the commentators there was
adamant rugby league was the best game to watch, rugby a distant second and AFL wasn’t even on the radar.
How do you reconcile that point of view with common sense?
It’s a bit like wine, some people are fervent in their belief that, to be good, wine must be expensive.
Not so. If I can let you in on a little secret – the liquor store next to Coles in Dunsborough occasionally has the Pannell Family (think Mr Pannell of Moss Wood and Picardy fame) 2006 Shiraz Cabernet Sauvignon for $13 a bottle.
Grown, vintaged and bottled by the Pannell Family at Vasse Highway in Pemberton, this drop has balanced tannins, a rich texture and abundant flavours, reflecting both the ripe fruit that was used and the experience of its creators.
Western Australia is in its infancy as an Australian state producing wine, not in the sense that Australia and the United States are in their vinous infancies compared with France, South Africa and Germany, but that it has only been considered as an area for production of top-quality wines in most recent times.
The Swan Valley has been growing grapes for the longest period of time in this state and the best-known name associated with it is, of course, Houghton, which produces the famous White Burgundy, as well as an excellent Verdelho.
Although the Swan Valley is a well-known wine growing area, it has never been considered as an area capable of producing top-quality wines, simply because the climate is too warm. Besides Houghton, other wineries in the Swan Valley are Olive Farm, Sandalford (which makes an excellent fortified dessert wine called Sandalero), Baskerville, Evans & Tate, Valencia, John Kosovich and Westfield.
The Margaret River area, in its more southerly position, is a cool-climate area and many of the resultant wines are indicative of the superior grape-growing climate. Perhaps this accounts for the plethora of good wines, especially reds, to come out of the Margaret River area in recent years.
This is a developing region in terms of new vineyards and wineries sprouting up with regularity, but the names associated with excellence to date are Leeuwin Estate (producers of an excellent chardonnay), Evans & Tate, Cape Mentelle, Vasse Felix, Moss Wood, Willyabrup, Pierro, Ashbrook and Hay River. These
wines usually carry a higher price tag in the eastern states, because of transportation costs, but they are usually well worth the money.
Fortunately for members, these wonderful wines don’t carry such a hefty price tag over here, thanks to GST lobbying by Judy Moylan, the member for Pearce (that covers the Swan Valley) and, as shown above, if you are prepared to fossick around in your sandy feet, there are some little gems lying around at GFC prices!
Simon Watters
Albert Wolff Chambers
Review
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34 March 2010
Iba makes commitment to lawyers in the South Pacific
The President and Vice-President of the International Bar Association (IBA) have reaffirmed the IBA’s commitment to supporting developing law societies and Bar associations in the South Pacific through the newly formed South Pacific Lawyers’ Association (SPLA). The announcement was made during the Bar Leaders’ Forum, held as part of September’s 36th Australian Legal Convention in Perth.
The Presidents of the Fiji Law Society, the Papua New Guinea Law Society, the Solomon Islands Bar Association and a representative of the President of the Samoa Law Society were present for the forum, which drew together Bar leaders from 11 countries to discuss issues affecting the legal profession in the context of the globalisation of legal services and the defence of the rule of law.
The IBA’s commitment to the future development of the SPLA was welcomed by the Steering Committee of the Association and strongly endorsed by the Law Council and the New Zealand Law Society.
The SPLA was formerly known as the South Pacific Bars’ Secretariat and was established in 2007 by the IBA in partnership with the Law Council and the New Zealand Law Society, with the support of South Pacific law associations. It was formed following calls from South Pacific Bar and law societies for organisations such as the IBA to lend more support to developing Bars.
make Sure Prenups are legally binding
Couples must ensure any financial agreements they enter into before, during or after marriage are legally binding, the Law Council has warned. The Law Council said do-it-yourself kits, currently being promoted, may initially appear cost-effective but could come at a great cost down the track, because you must have legal advice for an agreement to be enforceable. Law Council Past President Mr Corcoran explained:
“People should not be fooled into thinking that agreements they have drafted themselves can be legally enforced if they have been entered into without the appropriate legal advice. They are very important documents and the need to obtain independent legal advice is there for very good reasons.”
Mr Corcoran said, by entering into a financial agreement, couples give up their rights to have a court determine disputes about the financial matters covered in the agreement. A binding agreement can only be set aside in very limited circumstances. Mr Corcoran continued:
“When financial agreements or prenuptial agreements operate smoothly, they are an effective means of allowing couples to avoid or settle a dispute without having to enter the courtroom. This is beneficial to both the individuals involved and the court system. Independent legal advice is critical so that each person understands the commitments they are making, the consequences of the agreement and the effect of the agreement on their legal rights.”
change Judges’ Pension laws to avoid Discrimination
The Law Council has urged the federal government to address current judges’ pension laws to ensure the legislation does not discriminate against the former spouses of judicial officers. Law Council Past President John Corcoran said the operation of the Judges’ Pension Act in divorce proceedings was inconsistent with the Sex Discrimination Act. Sex Discrimination Commissioner Elizabeth Broderick said it may also violate the United Nations’ Convention on Elimination of Discrimination against Women. Mr Corcoran explained:
“What the Act means for the ex-spouse of a judge does not accord with modern conceptions of superannuation law. Under the current legislation, the spouse of a former judicial officer is only entitled to a percentage of the member’s actual pension payments, rather than their own separate fund over which they have control.”
This, he said, has a number of negative implications for the former spouse of a judicial officer. Mr Corcoran continued:
“The Law Council understands that very few superannuation schemes continue to operate in this manner. In general, we believe that any superannuation schemes that have the potential to discriminate against either party must be closely examined and the problem urgently addressed.”
report recommends a human rights act for australia
The Law Council welcomed the release earlier this month of the National Human Rights Consultation Report which recommends the adoption of a Human Rights Act for Australia.
“The adoption of a Human Rights Act would mean that Australia is no longer the only western democracy without one,” Law Council Past President John Corcoran said.
Many of the report’s recommendations reflect elements of a Human Rights Act that the Law Council wants to see, such as Compatibility Statements for draft legislation and Human Rights Action Plans and annual reporting on their implementation by Government departments. Mr Corcoran said:
“We believe that now is the time to commit to a Human Rights Act that will provide more comprehensive protection of human rights for all Australians. However the Government decides to respond to the report, it must address better human rights protection as comprehensively as possible.”
The Law Council will examine the report in greater detail in the coming weeks to make further submissions to Government. Mr Corcoran added:
“A Human Rights Act would provide the best benchmark for the assessment of the human rights of all Australians and the best means of protecting them.”
March 2010 35
law Week 2010 will be held from 17 to 21 May this year
with the theme Law and justice in your community.
This year’s Law Week has moved from September to
May to align with the national Law Week program,
which includes all states and territories. This relatively
short time frame between Law Week 2009 and 2010 means
WA’s program of events will be reduced; however, the key
events will return to promote law and justice in the community
and amongst the profession.
Some of the main events for 2010 include:
• Sir Ronald Wilson Lecture featuring Hon. Michael Barker as
the guest speaker – Thursday, 20 May.
• Law Week Luncheon featuring the LCA President and state
Attorney-General speaking on the National Legal Profession
Reform Project – Friday, 21 May.
• A special historic display at the Old Court House Museum.
Visit www.lawsocietywa.asn.au for full details on these events
and more. Keep checking as new events will be added in the
coming weeks.
Should any firm or organisation wish to hold a Law Week
event or seminar and have it added to the 2010 program
of events, please contact Maxina Martellotta, Executive
Manager Community Services on (08) 9322 7877 or email
[email protected] by Wednesday, 31 March 2010.
Law Week Returns in May
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Nominations Now open: attorney-General’s community Service law award 2010
The Attorney-General’s Community Service Law Award
recognises the work of an individual legal practitioner
who has made a pro bono contribution for the benefit of
the Western Australian community.
In its fourth year, nominations are now invited for the
2010 award, for practitioners who have demonstrated a
commitment to providing legal skills to serve the needs of
others in the community over an extended period of time.
Nominations can be made by legal practices, individual
legal practitioners or any organisation that provides
services to the community.
The winner of the award will be selected through a
panel from the Law Society of Western Australia and
the Attorney-General. More information is available on
the nomination form at www.lawcompass.wa.gov.au.
Nominations must be received at the Department of the
Attorney-General by 5pm Tuesday, 6 April 2010.
36 March 2010
State Administrative TribunalmaNor rooF reSToraTIoN and marGIeSoN [2009] WaSaT 197
Stream: Commercial and Civil Act: Builders’ Registration 1939 (WA)Coram: Dr B De Villiers (Member) Delivered: 13 October 2009 Result: The application for leave to review the decision of the Building Disputes Tribunal was dismissed.
Catchwords: Review of decision – Grounds for review – Submission of new evidence during application for review – Difference between fresh evidence and new evidence – New evidence is evidence that could have been made available at the time of the hearing – Fresh evidence is evidence that was not available at the time of the hearing – Failure of a party to attend proceedings or to make submissions – Reliance of a party on the report of an inspector.
Summary of Tribunal’s Decision
1. Manor Roof Restoration sought a review of a decision of the Building Disputes Tribunal to pay an amount of $12,000 to Ms Margieson for the fixing of leaks in her roof and to repair damage that was caused by the leaks.
2. Manor Roof Restoration contended that the decision was made in their absence; that the members of the Building Disputes Tribunal were not experts in roof restoration; that the work could be done much cheaper and that the leaks were caused by gutters and downpipes not being properly cleaned. They further contended that the report of the inspector should have been accepted.
3. Ms Margieson contended that Manor Roof Restoration should have made their submissions and evidence to the Building Disputes Tribunal. The Tribunal, according to Ms Margieson, acted on the basis of the submissions and evidence before it when it came to its decision. The Building Disputes Tribunal accepted her evidence that she had cleaned the gutters regularly. There was no reason why the decision should be reopened and new evidence submitted due to the failure of Manor Roof Restoration or their subcontractor to participate in the earlier proceedings.
4. The Tribunal found that the Building Disputes Tribunal acted properly, that it considered all the evidence before it and there was no reason why the decision should be reopened. It acted on the basis of the submissions and evidence before it; it adjourned proceedings to enable Manor Roof Restoration to participate; and that no breaches of the rules of natural justice had occurred.
5. The Tribunal emphasised that there were important public policy considerations to bring litigation to finality and that if
anyone was to blame for any potential inadequacies in the outcome of the Building Disputes Tribunal process, it was Manor Roof Restoration for not making submissions, not calling evidence and not using the opportunities it had to present its case.
6. The Tribunal further found that the application for review cannot be used to submit new evidence that was available at the time of the hearing before the Building Disputes Tribunal, to the Tribunal.
leGal ProFeSSIoN comPlaINTS commITTee and chIN [2009] WaSaT 219
Stream: Vocational Regulation Act: Legal Profession Act 2008 (WA)Member: Justice J A Chaney (President) Delivered: 4 November 2009 Result: Defence of res judicata not available.
Catchwords: Legal practitioner – Allegation of professional misconduct – Whether defence of res judicata available – Whether the same question determined in earlier proceedings.
Summary of Tribunal’s Decision
1. The Legal Profession Complaints Committee brought disciplinary proceedings against a legal practitioner, Mr Ni Kok Chin. Mr Chin contended that the allegations had been the subject of determination in other proceedings brought against him previously by the Legal Practice Board and that the defence of res judicata was available to him. He sought dismissal of the application on that basis.
2. The Tribunal examined the earlier proceedings and determined that they had not determined the same question as fell for determination in these proceedings. These proceedings involved an allegation that Mr Chin’s conduct amounted to professional misconduct. The earlier proceedings, although they involved consideration of some of the conduct relied upon in these proceedings, did not involve allegations of professional misconduct.
3. Justice Chaney’s decision included the following in relation to the defence of res judicata:
The defence of res judicata was recently discussed by the Court of Appeal in Willoughby v Clayton Utz [No 2] [2009]WASCA 29 (Willoughby) when Pullin JA, with whom the other members of the court agreed, referred to Jackson v Goldsmith (1950) 81 CLR 446 where Fullagar J said:
“The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgement has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action …”
March 2010 37
His Honour also referred to the passage from the judgement of Gibb CJ, Mason and Aickin JJ in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, where they said:
“… The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgement in a prior proceeding …”
At [14] in Willoughby, Pullin JA identified the elements of res judicata when he said:
“In Spencer Bower, Turner & Handley, Res Judicata (3rd edn, 1996) [19], the authors state that a party setting up res judicata as a bar to an opponent’s claim must establish the following constituent elements, namely:
(a) the decision was judicial in the relevant sense
(b) it was in fact pronounced
(c) the tribunal or court had jurisdiction over the parties and the subject matter
(d) the decision was
(i) final
(ii) on the merits
(e) it determined the same question as that raised in the later litigation
(f) the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem.”
4. After consideration of both the past and present proceedings, the application by the respondent to strike out the proceedings on the basis of res judicata was dismissed.
PerPeTual TruSTeeS Wa lImITeD and The PublIc TruSTee [2009] WaSaT 253
Stream: Human Rights Act: Guardianship and Administration Act 1990 (WA)Coram: Judge J Eckert (Deputy President), Mr M Spillane (Member), Mr K Bradley (Senior Sessional Member) Delivered: 22 December 2009 Result: Application dismissed.
Catchwords: Review proceedings – Certificate of loss – Payment of legal fees – Best interests of represented person – Payments made by plenary administrator in good faith – Original jurisdiction – Tribunal’s functions – Retrospective payments – Gift – Payment on behalf of represented person’s guardian.
Summary of Tribunal’s decision
1. Perpetual Trustees applied to the Tribunal for a review of a decision of the Public Trustee that there had been a loss to the estate of the represented person for which Perpetual Trustees, as administrator of the estate, was required personally to make restitution in full.
2. The Public Trustee had issued a certificate of loss dated 4 December 2007, pursuant to s80(6) of the Guardianship and
Administration Act 1990 and the parties agreed that the issue to be decided was:
(1) Should Perpetual Trustees, in its capacity as administrator of the represented person’s estate, have paid $29,352.88 from the represented person’s estate for legal fees, which payment was disallowed by the Public Trustee under s80(3)(b) of the Guardianship and Administration Act 1990 and made subject of a determination by the Public Trustee under s80(3)(c) that a loss had occurred?
3. At an early stage in the matter, the parties agreed that in addition to that matter, which arose in the Tribunal’s review jurisdiction, there were further matters in respect of which the parties wished to obtain the Tribunal’s direction. These matters included:
(i) If, as a question of fact, the Tribunal determines that the legal fees paid by Perpetual Trustees (WA) Ltd were paid on behalf of K or on behalf of the represented person and K jointly, can the Tribunal:
(a) direct the administrator to pay the legal fees under s74 of the Guardianship and Administration Act 1990
(b) authorise the payment of the legal fees under s72(3) of the Guardianship and Administration Act 1990 as an ex gratia payment
(c) authorise the payment of the legal fees under s16(4) of the Guardianship
(d) otherwise authorise the payment of the legal fees?
(ii) If the Tribunal finds that it can direct or authorise payment of all or any of the legal fees, should it direct or authorise the payment of all or any of the legal fees?
(iii) Can the Tribunal direct or authorise the payment by the administrator of future legal fees from the represented person’s estate for a party other than the represented person to legal proceedings?
(iv) If so, under what provisions of the Act can the Tribunal so direct or authorise and should the Tribunal do so?
4. In respect of Issue 1, the Tribunal found that Perpetual Trustees could and should have sought authority from the Tribunal to make the payments referred to and that the Tribunal cannot now retrospectively grant that authorisation and that Perpetual Trustees should not have made the payments for legal fees in the amount comprising the certificate of loss.
5. In respect of the other issues the Tribunal having found in Issue 1 that it had no power to retrospectively grant authorisation under s72(3) of the Guardianship and Administration Act 1990, further found that the same reasoning flowed through in respect of each of those further matters and the Tribunal was either not in a position to deal with those matters as they would have had to authorise payment retrospectively, or the Tribunal was being asked to proffer an advisory opinion based on a hypothetical question.
38 March 2010
Case Notes
high court
Negligence – duty of care – duty of publican to driving patron – whether duty – patron killed in motorcycle accident after leaving hotel – whether any duty breached or any breach caused loss
In C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board (Tas) [2009] HCA 47; 10 Nov 09 a drinker at a Tasmanian hotel died while driving his motorcycle home from the hotel where he had been drinking for some time. The deceased had come to an arrangement with the licensee that his motorcycle would be locked away so he could not drive it home without his wife being telephoned to collect him. However, he was given the keys without his wife being telephoned. The High Court concluded that the licensee of premises did not owe a duty of care to prevent patrons driving away from the premises in an intoxicated state: French CJ agreeing with Gummow, Haydon, Crennan JJ jointly; sim Hayne J. They also concluded if there was a duty it had not been breached and if there was a breach it had not caused the death. The matter preceded the Civil Liability Act 2002 (Tas). Appeals allowed.
Constitutional law – powers of the Commonwealth parliament – whether Commonwealth may fund states to acquire property on other than just terms
Water – history of common law and statutory “rights” to take water – whether statutory right to take water “property”
In ICM Agriculture Pty ltd v Commonwealth [2009] HCA 51; 9 Dec 2009 the plaintiff held bore licences under the Water Act 1912 (NSW) that permitted it to use artesian water and surface water licences that permitted it to use surface water, in its farming. These licences were abolished and replaced by a new scheme by regulations under the Water Management Act 2009 (NSW) in a way that saw the plaintiff’s entitlements greatly reduced and with an offer of compensation that was for the purposes of the proceeding accepted as not “just”. The compensation payments were calculated by the National Water Commission established and funded under the National Water Commission Act 2004 (Cth).The plaintiff contended in a proceeding in the original jurisdiction of the High Court that the power of the Commonwealth to enter the funding agreement by which the funds for compensation were allocated did not authorise it to enter agreements that effected the acquisition of property by a state on other than just terms as provided by Constitution s51(xxxi). The High Court accepted that the Commonwealth could not pass laws requiring the states to acquire property on other than just terms even where the states were not prevented from doing this. The Court concluded
that s51(xxxi) required the acquisition of property and not its
“destruction” and assuming the water rights of the plaintiff was
property the scheme did not see it “acquired”: French CJ with
Gummow, Crennan JJ; sim Hayne with Kiefel, Bell JJ; contra
Heydon J who concluded the original licences were property that
was acquired. Questions in case stated answered accordingly.
Federal court
Tax – charities – body reviewing relief of poverty
In C of T v Aid/Watch Incorporated [2009] FCAFC 128; 23
September 2009, a Full Court considered how entities were to
be identified as “charities” for taxation legislation. The Court
concluded the AAT had erred in finding a body that monitored
and lobbied the provision of foreign aid to ensure that the local
population was involved in the relief of poverty and thus a
“charity” for tax purposes.
Tax – GST – acquisition of foreign currency for use outside Australia
In Travelex Ltd v C of T [2009] FCAFC 133; 29 September 2009,
a Full Court concluded that the conversion of Australian dollars
into foreign currency for use outside Australia did not attract
liability to pay GST.
Statutory construction – notice under s155 Trade Practices Act (TP Act)
In Singapore Airlines Pty Ltd v ACCC [2009] FCAFC 136; 2
October 2009, a Full Court concluded a notice issued under
s155 of the TP Act requiring information on freight rates for
transport “including on routes to and from Australia” was not
to be construed in a precious or over-technical manner. Review
of authorities as to the operation of s155 of the TP Act.
Administrative law – inadequate reasons of tribunal
In Civil Aviation Safety Authority v Central Aviation Pty Ltd
[2009] FCAFC 137; 2 October 2009, a Full Court concluded
the AAT had not given adequate reasons for its decision to
set aside a decision to cancel the registration of an aircraft
maintenance engineer and to issue a conditional certificate
under the Civil Aviation Regulations 1988 (Cth). The Full Court
considered whether the decision or the reasons should be
quashed. It concluded the power to alter the reasons of the
AAT under s43AA(1) of the AAT Act for “obvious error” did not
empower the AAT to rewrite its reasons. It also considered the
consequences on remitter of the AAT member ceasing to be a
member of the AAT. Matter remitted to the AAT.
Thomas hurley, barrister
Prepared for the Law Council of Australia and its constituent bodies by Thomas Hurley, Barrister, VIC, NSW, ACT (Editor, Victorian Administrative Reports).Thomas Hurley is a member of the Victorian Bar. The full version of these judgements can be found on the AustIiiwebsite www.austlii.edu.au/databases.html
March 2010 39
law Society of Western Australia Society Council
member John Staude has been appointed as a Judge
of the District Court of Western Australia.
His Honour Judge Staude has actively contributed to
the Society’s ongoing success as part of its Council
and has been a long-term contributor to the Society’s Courts
Committee, LawAsia Committee and the Professional Indemnity
Insurance Management Committee.
Judge Staude will replace His Honour Judge Robert Mazza,
who was today announced as a Judge of the Supreme Court
after six years on the District Court. Judge Mazza has also been
actively involved in a number of the Society’s committees and
Continuing Professional Development (CPD) events.
Society President Hylton Quail said:
“These appointments are well-deserved for two highly
experienced and respected legal practitioners who have
served the justice system with unwavering integrity and
dedication.
“Judge Staude is a man who is not only respected for his
legal knowledge and forensic skills, but well liked in the
profession for his personable approach to the law and those
he works with.
Law Society Councillor Appointed to the Bench
For Further InFormatIon:Contact Simon MorrisonPhone: (08) 9319 5800 www.shine.com.auLoCaL oFFICeS natIonaL FIrm
Now purchasing Personal Injury Files
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“While his presence on the Society’s Council will be missed,
I wish him all the best as he takes on this new challenge.”
Mr Quail also has high praise for Judge Mazza:
“Judge Mazza has served the community with distinction
whilst on the District Court and his elevation to the Supreme
Court is welcomed.
“His Honour was a very experienced criminal lawyer when
appointed to the District Court. He has since shown that his
expertise and judgement extends to all areas of the law. He
is held in the highest regard in the legal profession.”
His Honour Judge John Staude
His Honour Judge Robert Mazza
40 March 2010
anti-hoon laws
law Society of Western australia has welcomed the decision of the government to change the anti-hoon legislation. Society President hylton Quail says the legislation has always been flawed.
Radio 6PR, 09/01/10
minister backflips on New hoon laws
Police Minister Rob Johnson has been forced to water down the government’s hoon laws after police seized the Perth GP’s Lamborghini sports car worth $200,000 which his mechanic was caught driving at 160km/hr. The Law Society of Western Australia applauded the decision but called on the government to go further and scrap the legislation. “This is yet another example of this government passing a law which affects completely innocent people and deprives them of their rights and in this case property,” Society President hylton Quail said.
The West Australian, 09/01/10
Push For Police To Serve on Juries
In a bid to increase community representation on juries and broaden the pool of potential jurors, the Department of the Attorney-General wants to end the ban which excludes lawyers, corruption watchdog officers, judges’ associates, justices of the peace and bailiffs from jury service during their employment and for up to five years after they leave their position. Society President hylton Quail said allowing police and lawyers on juries had the potential to undermine public confidence in the system and the role of the judiciary. “The Law Society would be alarmed if police officers and lawyers were allowed to serve on juries,” Mr Quail said. “The function of the jury is to decide the facts and it is therefore important for the jury to be divorced from knowledge of the application of laws.”
The West Australian, 18/01/10
Search laws To erode ‘all civil liberties’
Proposed laws, which will give police unprecedented stop and search powers, are likely to unfairly target minority groups such as Aboriginals and Muslims and would be more at home in a fascist regime, the Law Society of Western Australia warned yesterday. Society President hylton Quail said the plan to give police unqualified powers to stop and search people in designated areas would risk undignified intrusions on law-abiding citizens’ rights and lacked appropriate safeguards and
Off the PressLaw Society of Western Australia in the media
security checks. “These laws are commonly found in police states, historically and around the world and fundamentally erode all our civil liberties,” Mr Quail said.
The West Australian, 20/01/10
on-the-Spot Fine Plan For Petty crimes
Police Commissioner Karl O’Callaghan has said an infringement system for nuisance behaviour had benefits for the police and justice system. It is understood the laws would give police the discretion to issue “criminal penalty infringement notices” against first offenders for minor offences. law Society of Western australia President hylton Quail described the infringement system as a “’promising idea”, but said the detail would need to be examined. He said deeming provisions which outlined the procedures when fines were not paid within the specified time would be a concern because it could limit a person’s right to challenge the matter in court.
The West Australian, 21/01/10
Stop and Search breach
Local politicians and the Law Society of Western Australia have warned that the state government’s proposed stop and search legislation could violate human rights under international law. law Society of Western australia President hylton Quail said the Society had made a submission to the Standing Committee on Legislation and wanted to appear before the committee to give evidence. “Police already have very wide search powers targeted at criminal activity and there has been no credible evidence that their existing powers are inadequate,” he said.
Fremantle Gazette, 26/01/10
Tough law helps clean up business
More than 200 criminals have been kicked out of the security industry under new laws which can ban anyone convicted of a serious offence within the past 10 years. The legislation does not provide for an avenue of appeal, which detractors see as unfair. law Society of Western australia President hylton Quail agreed the security industry needed to be policed strongly but said the disqualification periods of five or 10 years, depending on the offence, were too long. “People do rehabilitate and there should be a judicial discretionary process (after two years) where they can apply to have their licence reinstated,” he said.
The West Australian, 27/01/10
In the News
March 2010 41
Wa lawyers riled over Search laws
The lawyers of Western Australia have expressed their consternation over the proposed extension of police powers and the inevitable consequences of changes to stop and search laws. “Giving police the power to conduct searches on people and their vehicles without requiring them to have any suspicion that an offence has been committed will result in thousands of completely law-abiding citizens being inconvenienced and having their privacy violated,” said Society president hylton Quail. “What’s worse is that the government has not made a case for the need for such draconian laws. Police already have very wide search powers targeted at criminal activity and there has been no credible evidence that their existing powers are inadequate,” said Quail this week. “Aspects of this Bill have the hallmarks of laws usually found in a police state and people’s rights as citizens in a free society will be significantly eroded if Parliament does not reject these proposals.”
The New Lawyer, 27/01/10
Wa’s New Top Prosecutor revealed
Experienced barrister Joseph McGrath has been appointed the Director of Public Prosecutions. law Society President hylton Quail said Mr McGrath had the “skills and independence”
required for the job. “We would like to see Mr McGrath focus on continuing improvement of the office of the DPP, especially in the area of evidence disclosure in the early stages of prosecutions, as it is an issue that requires immediate review,” Mr Quail said.
WA Today, 27/01/10
New DPP Promises reform
Barrister Joe McGrath, a respected lawyer with 20 years’ experience, was approved for the position by Governor Ken Michael yesterday and will replace acting DPP Bruno Fianacca as WA’s top prosecutor on Monday. law Society of Western australia President hylton Quail said Mr McGrath’s time at the WA Bar and his experience at the Commonwealth DPP provided a sound basis for the challenge that came with the top prosecutor’s job. “There is no doubt that Mr McGrath will bring a balanced approach to the office,” Mr Quail said. “He has a very sound reputation. He has the degree of independence that is required.”
The West Australian, 28/01/10
members can view 2010 media articles featuring comment by the Society at www.lawsocietywa.asn.au/inthemedia.htm
ordinary Firm
Alan Troy Director Public Prosec-State
Brett Turton Price DG & Co
Wido Folkert Peppinck City of Mandurah
Emily Cossgrove Minter Ellison
Rebecca Heath Minter Ellison
Holly Jewkes Minter Ellison
Jessica Karasinski Minter Ellison
Tamar Kennedy Minter Ellison
Mark O’Toole Minter Ellison
Leonie Snepp Minter Ellison
Susannah Allan Minter Ellison
Margaret Connie Sandford Margaret Sandford
Taryn Scott Legal Aid Western Australia
Moira Colleen Taylor Citizens Advice Bureau of WA
Alan Scott McNeill Cockburn Central Law
Christopher Bailey Williams & Hughes
Anne Quing Hau Bolger Lawton Lawyers
Siobhan Drake-Brockman AustAsia Legal Pty Ltd
Mark Charles Davies Tottle Partners
Tania Danielle Wenn-Payne Rankin Nathan Lawyers
Claude Armeli Department of Commerce
Edmund Boon Chun Chan Michael Lurie & Associates
Gretta Lee State Solicitor’s Office
Jane Elizabeth Wyllie Invision Investigations
Damien Bristol Rowe Bristol Lawyers
Isla Milne Avon Legal Pty Ltd
Adam Rowe Rowe Bristol Lawyers
Kacy Kok Kaar Tang GV Lawyers
Barbara Sole Independant Market Operator
Olivia Willett Butcher Paull & Calder
Mei Ching Wong Chong James & Co
Andrew David Watson Pye & Associates
Mark David Cox MDC Legal
James Nicholas Irving James Irving Lawyer
Henry Hall Jackson Francis Burt Chambers
Gregory Kuscevich Kuscevich & Associates
Marianne Broadbent Hotchkin Hanly
Bianca Longfield-Turner Hotchkin Hanly
Maria Mansour Hotchkin Hanly
Daniel Christian Vivian P A Martino
associate Firm
Benjamin Matthew Clarke University of Notre Dame
Joel Trigg WG McNally Jones Staff Lawyers
articled clerks Firm
Leurissa Gooch MacKinlays
Claire Baggott AustAsia Legal Pty Ltd
RLin Zhang Talbot Olivier Pty Ltd
Emily Jane Williams Tottle Partners
Lara Wilmot Clayton Utz
law office managers Firm
Katherine Dunmill Brett Davies Lawyers
Jasmine Campbell MEGA Uranium Ltd
Phoebe McLarty Freehills
Students university
Kara Churchward Murdoch University – Law
Paul Scalzi University of WA
Emma Charles
Vivek Emmanuel Jacob Murdoch University – Law
yan Torabi University of WA
Victoria Loughnan University of Western Aust
Laura Hutchinson Edith Cowan University
Cedric Newell University of Notre Dame
The law Society of Western australia welcomes the following new members
42 March 2010
Book ReviewConstitutional Advancement in a Frozen Continent: Essays in Honour of George Winterton
Editors H P Lee & Peter Gerangelos Publisher The Federation Press Reviewer Jackie McArthur, State Solicitor’s Office
The question whether judges interpreting the Constitution can adopt new or evolving meanings has largely been settled in the affirmative. The desirability of some of these changes is the subject of the diverse essays in this collection, which share the purpose of demonstrating that Australia’s Constitution is neither rigid, nor capable of responding to changing circumstances.
Constitutional change was near to George Winterton’s heart, to whom the work is dedicated, not least because of his enduring commitment to republicanism. The book was edited by H P Lee and Peter Gerangelos, who had worked closely with Winterton over their careers and whose constitutional law scholarship is nearly as highly regarded as Winterton’s.
The various essays in the book cover a very broad range of constitutional subjects and are contributed by an impressive array of academics, judges and practitioners. Particularly absorbing are articles by Fiona Wheeler, Peter Gerangelos and George Williams and David Hume, exploring subjects as diverse as the chameleon doctrine of judicial power, the relationship between
legislative and executive power and the industrial relations power. These articles are especially thought-provoking and insightful, offering original perspectives or raising new questions about the desirability of particular constitutional advancements over recent years.
The greatest problem for the book is the great diversity in nature, subject matter and theme of the essays. All are adeptly written. However, while some are original and thought-provoking, others attempt only to authoritatively trace the history of a particular constitutional development or summarise a debate. This oscillation between reference works and essays that provide new insights gives the book a sense of uncertain purpose.
Moreover, the contributions sometimes struggle to maintain an overarching theme justifying their inclusion in the same work. Some chapters concern the question of constitutional change and its desirability only in a notional sense, as an idea to be referred to briefly in the introduction or conclusion. The overall impression is at times that of a mixed bag of essays generally on constitutional law, simply grouped together between the covers of the book.
Nevertheless, Constitutional Advancement in a Frozen Continent poses some new and interesting questions, as well as providing some authoritative works on a broad range of constitutional law subjects. The generally high-calibre contributions present a fitting tribute to the remarkable academic career of George Winterton.
Review
What’s On27 March – 3 April
europe oceania Pacific legal conferenceVal Thorens, France
A chance for professional development and to hear papers from international experts. Phone: (07) 3254 3331 Email: [email protected]
8-11 April
commonwealth regional law conferenceAbuja, Nigeria
Two program streams that will concentrate on Human Rights and the Rule of Law and Corporate and Commercial Law with the emphasis on issues of importance within the host country and wider region. Phone: (41) (0) 22 533 0948 Email: [email protected]
23-30 May
Pan asia Pacific legal conferencePort Douglas, QLD
Phone: (07) 3254 3331 Email: [email protected]
25-26 May
Iba Technology law conferenceCopenhagen, Denmark
A discussion on the latest in technology law and the health sector. Email: [email protected]
Visit www.lawcouncil.asn.au/conferences for details on other upcoming events and conferences.
March 2010 43
Professional AnnouncementsNEW PRACTICEcPK legal
Address: The Forrest Centre, Level 29, 221 St George’s Terrace, Perth WA 6000; Postal address: PO Box 67, BEECHBORO WA 6063; Ph: (08) 9296 9404; Email: [email protected]
ChANGE OF ADDRESSKroon legal
Kroon Legal has a new street address: 18 Carey St, Bunbury WA 6320. Existing contact details remain the same.
CAREER MOVERSchew+matthews
Michael Sims has been appointed as a partner commencing 7 January 2010.
Francis burt chambers
Henry Jackson commenced as a barrister. AC Willinge commenced as a barrister on 15 February 2010.
IrDI legal
Susan Thick and Belinda Wong have commenced employment.
marks & Sands
Michaela Speering commenced employment as a senior solicitor.
Shine lawyers
Timothy Bradley and Simone Vojakovic have commenced employment as solicitors.
Talbot oliver
Laura Angel, Carly Sluiter, Nathan Lord, Trevor Ho and Louis Van Aardt have commenced employment as senior associates.
Tottle Partners
Emily Williams commenced employment as an articled clerk.
Submit Your Professional announcementIf you wish to post a professional announcement about a recent career move, change of details or a new practice, email [email protected] with all necessary information for inclusion in the next available Brief. Plus, you have the option to include a headshot for publication. All photographs should be high resolution, print quality and only feature the head and shoulders of the individual.
Note: Professional announcements will only be accepted through the above process. Notices sent to the Society separately to update membership database details will NOT automatically be included on this page.
Nathan Lord
Timothy BradleyLaura Angel
Simone Vojakovic
Trevor Ho
Louis Van Aardt
Susan ThickCarly Sluiter
Belinda Wong
Senior Commercial Litigation Lawyer is interested in the purchase, consultancy arrangement or joint venture interest of commercial or possibly other litigation files from small or medium-sized practices.
For further contact: Litigation Lawyer, PO Box Z5342, St George’s Terrace, Perth WA 6831 or alternatively email to: [email protected]
SELLING YOUR PRACTICE? LOST ORIGINAL WILLWould any person having any knowledge about, or being in
possession of, the original Will made by PETER WILLIAM TELFORD WALLACE, late of 118 Coolibah Drive, Greenwood
PLEASE CONTACT:Ed Wall, Lawyer
E J Wall & AssociatesUnit 3, 7 Prindiville Drive
Wangara WA 6065Tel: 9409 6187
T: 1 800 676 948E: [email protected]: www.expertopinion.com.au
Expert Opinion ServicesProfessionalvExperiencedvReliable
5,000 experts in over 2,000 areasFor 50 years, Australia’s leading provider of
independent expert opinion and advice.
44 March 2010
Law Bulletin
amendments to Supreme court consolidated Practice
Directions – costs and Taxations
On 9 December 2009, Practice Direction 4.7 was amended. View
consolidated list at www.supremecourt.wa.gov.au
Acts Amendment (Consent to Medical Treatment) Act
2008
By proclamation on 1 January 2010 (published in the Government
Gazette on 8 January 2010), 15 February 2010 was fixed as the day on
which Parts 1 and 2 of this Act come into operation except for section 11
to the extent that it inserts sections 110RA, 110ZAA,110ZAB and 110ZAC
and section 12. View Gazette at www.slp.wa.gov.au/gazette/gazette.nsf
Guardianship and administration amendment regulations
(No. 2) 2009
These Regulations come into effect when the Acts Amendment
(Consent to Medical Treatment) Act 2008 comes into operation. These
Regulations amend Schedules 1 and 2 by deleting “witness’s residential”
(each occurrence) and inserting “witness’s”. It should be noted that the
Guardianship and Administration Regulations 2005 (as now available
at www.slp.wa.gov.au) have been amended to include the form for
appointment of an Enduring Guardian and the Advance Health Directive
form.
First Home Owner Grant Amendment Act 2009
By proclamation on 15 December 2009 (published in the Government
Gazette on 22 December 2009), Part 3 comes in to operation on 1
January 2010. View Gazette at www.slp.wa.gov.au/gazette/gazette.nsf
land administration amendment regulations (No. 2)
2009
These Regulations were published in Government Gazette No. 244
dated 24 December 2009. Regulation 15 (Phasing in of increased
rents for pastoral leases) has been replaced. View Gazette at
www.slp.wa.gov.au/gazette/gazette.nsf
Supreme court amendment rules (No. 3) 2009
These Rules were published in Government Gazette No. 242 dated
22 December 2009 and come into operation when the National Gas
Access (WA) (Act) 2009 Part 2 comes into operation. View Gazette at
www.slp.wa.gov.au/gazette/gazette.nsf
Federal court of australia
As of 4 January 2010, the Federal Court of Australia’s Schedule 2
(quantum of prescribed costs) has been amended.
appointment of contractor – Sheriff’s officer and bailiff
Services (south of state)
The Society has been advised that the Sheriff’s Office has signed a
contract with Baycorp Pty Ltd for the delivery and execution of court
enforcement processes in the southern part of Western Australia.
New Federal court Practice Notes – anton Pillar orders
and mareva orders
New Practice Notes applied from 1 January 2010.
Submissions to National legal Profession reform
Taskforce
The Society has released five joint submissions with the various
state and territory law societies and bar associations that have been
submitted in response to the National Legal Profession Reform project
taskforce’s discussion papers, released in late 2009. Members are invited
to view the submissions and provide comment. View submissions at
www.lawsocietywa.asn/nationalreform.htm
Practice Direction: magistrates court
The Magistrates Court of Western Australia has released Practice
Direction 1/2010 pertaining to matters handled by the Stirling Gardens
Magistrates Court.
Important Information for employers of legal
Staff: Fair Work Act 2009/Federal award
modernisation/legal Services award 2010
In Friday Facts of 11 December 2009, members were advised
that the Legal Services Award 2010 had issued and would
commence on 1 January 2010. The Award can be accessed at
the AIRC website. The Fair Work Act 2009 applies to “national
system” employers and their employees. “National system”
employers include constitutional corporations. Federal award
modernisation is the creation of a system of modern awards
to operate in conjunction with new National Employment
Standards. Members are referred to the Fair Work website at
www.fwa.gov.au and to closely consider their new legislative
obligations if they are part of an employer that is a constitutional
corporation for the purposes of the Act.
T H E S O C I E T Y C P D P R O G R A MI S S P O N S O R E D BY
THE CPD YEAR ENDS 31 MARCH 2010
M A N AG E YO U R C P D W I T H T H E S O C I E T Y
D O N’T MISS THE MARCH CPD PLANNER FEATURED IN THIS EDITION OF BRIEF
Browse the comprehensive list of CPD events and book today.You can also log on to www.lawsocietywa.asn.au for even more events.
LESS THAN FIVE YEARS PRACTISING AS AT THE COMMENCEMENT OF CPD PERIOD
Competency Area 1 Legal Skills or Practice Min 4 CPD pointsCompetency Area 2 Ethics or Professional Responsibility Min 4 CPD points
AT LEAST FIVE YEARS PRACTISING AS AT THE COMMENCEMENT OF CPD PERIOD
Competency Area 1 Legal Skills or Practice Min 2 CPD pointsCompetency Area 2 Ethics or Professional Responsibility Min 2 CPD points
CPD REQUIREMENTS IN WESTERN AUSTRALIA
a minimum of 10 CPD points between 1 April 2009 to 31 March 2010.
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Senior AssociateLeading independent Perth fi rm. Work for top developers, planners and fi nanciers. Varied range of transactions. 4+ years PAE. Ref. No. OTHR/6B/11148.
Senior LawyerStrong mid-tier Perth fi rm. Well established public and private sector client base, varied commercial and property matters. Great team environment. 4+ years PAE.Ref. No. OTHR/BX/25988.
SolicitorTop national fi rm. Stimulating work environment, broad range of commercial property transactions, focus on development work. 2-5 years PAE. Ref. No. OTHR/6B/09530.
Property Lawyers
![Presentation to the Parliamentary Committee Rural Development and Land Reform Public Hearings on the Geomatics Profession Bill [B4-2013] 16 April 2013,](https://img.pdfslide.us/doc/110x75/56649ed95503460f94be78bf/presentation-to-the-parliamentary-committee-rural-development-and-land-reform.jpg)
