AUG - DEC 2014

The Law Council Review provides in-depth stories to the profession about issues of national importance and celebrates the achievements and successes of Australian lawyers.

review@lawcouncil.asn.au www.lawcouncil.asn.au

FEBRUARY 20159-15 February - 2015 Superannuation Lawyers’ ConferenceHost: Superannuation Committee, Legal Practice Section, Law Council of AustraliaVenue: Sofitel Brisbane Central, BrisbaneEmail: fedls@lawcouncil.asn.auPhone: +61 2 6246 3722

MARCH 20155 March - Mahla Pearlman AO OrationHost: Legal Practice Section, Law Council of AustraliaVenue: Law Courts Building, Queens Square, SydneyEmail: lps@lawcouncil.asn.auPhone: +61 2 6246 3722

6 March - Future of Environmental Law SymposiumHost: Legal Practice Section, Law Council of AustraliaVenue: The Langham, SydneyEmail: lps@lawcouncil.asn.auPhone: +61 2 6246 3722

12 March - 2015 World Masters of Law Firm Management - Improving Client Value in the New Law ParadigmHost: Legal Practice Section, Law Council of AustraliaVenue: Intercontinental, SydneyEmail: lps@lawcouncil.asn.auPhone: +61 2 6246 3722

15 March - 2015 CPD Migration Law ConferenceHost: Migration aw Committee, International Law SectionVenue: Melbourne Park HyattEmail: ils@lawcouncil.asn.au Phone: +61 2 6246 3788

18-20 March - 4th Asia Pacific Regional Forum Conference: Borderless AsiaHost: International Bar AssociationVenue: Marina Bay Sands, Singapore

20-21 March - QLS Symposium 2015 Host: Queensland Law SocietyVenue: Brisbane Convention and Exhibition CentreEmail: info@qls.com.auPhone: 1300 367 757

APRIL 201512-16 April - 2015 Commonwealth Law Conference Host: Commonwealth Lawyers AssociationVenue: Scottish Exhibition and Convention Centre, GlasgowEmail: registration@happen.co.ukPhone: +44 (0) 20 3397 7695

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Law Council Review

• Issue 11 • Aug–Dec 2014

AWARD

ING

THE LEG

AL PROFESSIO

N

AWARDING THE LEGAL

PROFESSION

CALENDAR OF EVENTS

CONTENTS3 President's message

4 Message from the Secretary-General

6 Law Council releases new Asylum Seeker Policy

7 High Indigenous imprisonment rates and mandatory sentencing

12 Recent changes to Australia’s counter-terrorism laws

14 Fourth legal and related services export survey

17 Legal awards attract ‘outstanding’ nominees

20 And the awards go to…

22 2014 Law Council of Australia’s President’s Medal

30 New committee established for Constitutional Law issues

36 Farewelled but not forgotten

38 Advancing Uniform Law

42 Legal aid - from past idealism to present advocacy

46 Data retention: Law Council does not support mandatory data retention

48 Global Integrity – A regulatory challenge or an ethical leadership issue?

50 Electronic conveyancing for transfers of land – it is here!

52 Top news of the quarter

56 National news

66 International news

74 Division overviews

79 Section overviews

84 Law, human rights and medicine in Fiji

86 Pacific Legal Profession Survey

88 Calendar of events

EDITORIAL ACKNOWLEDGEMENTS & CREDITS

Managing Editor | Vanessa Kleinschmidt

Editorial Assistant | Giesel Manalo

Contributors | Karuna Gurung and Hanna Jaireth

Design | Felicia Gibson Design

Law Council Review, 19 Torrens Street, Braddon, ACT, 2612 GPO Box 1989, Canberra, ACT, 2601 DX 5719 Canberra

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www.lawcouncil.asn.au© The Law Council of Australia

No part of this publication may be reproduced without the specific written permission of the Law Council of Australia.

Opinions are not the official opinions of the Law Council of Australia unless expressly stated. The Law Council accepts no responsibility for the accuracy of any information contained in the Law Council Review and readers should rely upon their own enquiries in making decisions regarding their own interests.

ISSUE 11AUG - dec 2014

COVERAwarding the legal profession

2 LAW COUNCIL REVIEW

Wishing you a happy festive season

from the Law Council of Australia

AS THIS WILL BE MY LAST FOREWORD FOR THE LAW COUNCIL REVIEW, I WOULD LIKE TO TAKE THIS OPPORTUNITY TO WELCOME MR DUNCAN MCCONNEL AS HE EMBARKS ON HIS TERM AS PRESIDENT OF THE LAW COUNCIL OF AUSTRALIA.

PRESIDENT’S MESSAGE

AUG - DEC 2014 3

Mr McConnel has been already contributed much to the Law Council, particularly in the area of

Indigenous legal issues, and I’m positive he will be a valuable leader in the coming year.

A key policy issue Mr McConnel has recently addressed, on behalf of the Law Council, is the critical state of Indigenous imprisonment and its link with mandatory sentencing regimes (see page 10).

The past few months in Australian legal and political discourse have been dominated by national security issues, such as the introduction of the Foreign Fighters’ and Data Retention Bills (see pages 12 and 46 respectively). The Law Council has consistently acknowledged the need to safeguard Australia’s national security and has supported measures that protect the community from possible terrorist acts.

One primary responsibility of the Australian Government is to protect the lives of citizens and preserve parliamentary democracy. As a peak professional institution committed to the rule of law and the peaceful stability of civil society, the Law Council also has a responsibility in these areas to work constructively with Governments in pursuing their security obligations.

The Law Council has also observed that Australia’s anti-terrorism laws will necessarily impinge upon conventionally accepted individual rights and freedoms. In various submissions and statements we have argued that the keystone to an appropriate response

to the threat to national security is the concept of proportionality.

Another topical issue that the Law Council has voiced concern over recently is the treatment of asylum-seekers (page 6). The official launch of the Law Council’s Asylum-Seeker Policy highlighted the rule of law principles and Australia’s international obligations with respect to refugees, and generated substantial social media activity.

Moving to the international agenda, the Law Council recently attended the Australia-Korea Services Sector Promotion Forum following the Korea-Australia Free Trade Agreement and the introduction of the Foreign Consultant Act (page 66).

Increased access to international markets may also be the driver toward a billion-dollar legal services export industry, as reflected in the Fourth Legal Services Export Survey on page 14, conducted by the Law Council with support from the Attorney-General’s Department and the Large Law Firm Group.

Also on the global front, I would like to acknowledge the record number of Australian officeholders in the International Bar Association (IBA), a culmination of 30 years of relations with the IBA.

There are many more issues and articles in these pages of the 11th edition of Law Council Review, indicating the varied work of the Law Council. It has been a fascinating 18 months as President of this peak body, dealing with matters that cover the broad spectrum of

issues involving the legal profession and law. I am honoured to have served in this role.

As outgoing President, I would like to thank my fellow Executive members, the Law Council’s Directors, its Constituent Bodies, and the Law Council Secretariat for all their valuable support and important contributions to this and other Law Council publications.

Michael Colbran QCPresident

T he Law Council of Australia has again been very busy this year and as 2014 comes to a close, I would like to highlight

some projects the Law Council has been working on through the year that are of significant importance to the legal profession.

Legal Profession Uniform Law The Legal Profession Uniform Law (LPUL) was enacted by Victoria in February 2014 and adopted as an applied law in New South Wales in May 2014.

The operative provisions on the Uniform Law are anticipated to commence 1 July 2015. The provisions necessary for establishing the regulatory bodies and getting the scheme ready for commencement on that date, have already been proclaimed and the administrative arrangements have been established.

The appointment of members to the Legal Services Council was announced on 17 October 2014 and the Council has already met.

The Members of the Council are:

• Mr Michael Black AC QC, former Chief Justice of the Federal Court of Australia - Chair;

• Mr Steven Stevens, Victoria, the Law Council’s nominated member;

• Mr Bret Walker SC , New South Wales - the Australian Bar Association’s nominated member;

• Ms Fiona Bennett, Victoria - a nominee of the Standing Committee of Attorneys-General of New South Wales and Victoria;

• Ms Kim Boettcher New South Wales - a nominee of the Standing Committee of Attorneys-General of New South Wales and Victoria.

Mr Dale Boucher was appointed as the inaugural Commissioner for Uniform Legal Services regulation and Chief Executive of the Legal Services Council on 5 September 2014.

Representatives of the Law Council’s Working Group on the Uniform Law have met the Commissioner on a number of occasions and have established a productive and beneficial working relationship with the Council.

On 1 December 2014 the Law Council was authorised to commence public consultation on the Legal Practise, Continuing Professional Development and Professional Conduct Rules. The Australian Bar Association has also commenced its consultation on the Barrister Conduct and Continuing Professional Development Rules. Further information on the consultation process can be found on the Law Council website.

The Legal Services Council has commenced its public consultation on the Uniform Rules. The consultation process will conclude on 16 January 2015, and comments received will be considered by the Legal Services Council. Also, the Admissions Committee established by the Legal Services Council has commenced its public consultation on the Admission Rules. This consultation process will conclude on 30 January 2015.

Anti -Money Laundering and Counter Terrorism Financing Practitioners will be aware that for many years, the Law Council has actively participated in the debate about the application of Anti Money Laundering and Counter Terrorism Financing measures to the legal profession.

In April this year, the Law Council provided two submissions to the statutory review of the operation of Australia’s Anti-Money

WELCOME TO THE ELEVENTH EDITION OF LAW COUNCIL REVIEW – THE LAST EDITION FOR 2014.

FROM THE SECRETARY-GENERAL

4 LAW COUNCIL REVIEW

Follow us on twitter!

@thelawcouncil

@LCAPresident

AUG - DEC 2014 5

Laundering and Counter-Terrorism Financing Regime (AML/CTF regime) accessible here: submissions. The Law Council’s advocacy has focussed on concerns about the impact on the profession of measures that would be introduced by what is referred to as the proposed ‘Tranche 2’ reforms.

The AML/CTF regime in Australia is being introduced in 2 stages. Tranche 1 already applies to a limited range of designated services (primarily financial services provided by financial institutions). Under the Tranche 2 reforms, the legal profession would become subject to three kinds of obligations:

• to register with AUSTRAC in order that AUSTRAC can, among other things, assess and recover the industry contribution levy;

• to implement internal AML/CTF risk management controls under a two part AML/CTF Program – which includes onerous Know Your Customer and Customer Due Diligence elements; as well as internal risk assessment measures (screening, training and monitoring of employees; transaction monitoring; appointment of an “AML/CTF Compliance Officer”; and regular independent reviews of the AML/CTF program to assess effectiveness, compliance and implementation of the program).

• suspicious transactions reporting under section 41(1) of the AML Act.

However, unlike other designated non –financial businesses and professions potentially captured by the proposed Tranche 2 measures, the legal profession is already subject to an extensive regulatory regime and core professional obligations not to break the law or to assist anyone in furthering an unlawful purpose.

The Law Council’s view is that, given the existing ethical and regulatory regime under which the legal profession operates, additional AML regulation is unnecessary, and the better approach to making law practices less vulnerable to inadvertent or unintentional involvement in money laundering or terrorism financing, is by raising awareness and providing risk management guidance to legal practitioners.

To this end, the Law Council is implementing a strategy that has involved strengthening

relationships with international legal profession counterparts, many of whom also oppose enhanced AML regulation of legal practitioners, along with the production of a new best practice guide for Australian practitioners. The guide will aim to raise the present level of awareness and offer specific practical advice to law practices on implementing a risk based approach to such issues as customer due diligence that is hoped will fortify law practices being unwittingly used by money launderers.

National Electronic Conveyancing SystemThe Law Council has been has been actively involved in consultation on the National Electronic Conveyancing System (NECS) since 2005.  NECS is now a reality for property lawyers, as PEXA (the platform provider) commenced its pilot rollout of NECS for the electronic settlement of transfers in Wollongong and selected practitioners in Sydney in November, with Bendigo and Geelong to follow in early 2015. PEXA will progressively rollout the platform across Australia over the coming year. 

The Law Council has also been an active member of the Electronic Conveyancing Group (ECG), formed in July 2013, with the Australian Bankers’ Association and the Australian Institute of Conveyancers, working collaboratively with PEXA and the regulator, the Australian Registrars’ National Electronic Conveyancing Council (ARNECC).  This strategic alliance with the other users of NECS has proved very helpful in addressing significant issues of concern that have arisen over the last few years, and property lawyers stand to gain considerable efficiencies from the operation of NECS.

The Law Council will continue to work constructively with PEXA and ARNECC as it refines the platform and the regulatory framework to ensure that lawyers using the system should not be exposed to any greater risk or liability than occurs in the current paper environment.

Uniform Torrens Title ActFor the past ten years, the Law Council has been working closely with legal organisations and industry groups, collectively known as the Australian Property Law Reform Alliance (the Alliance), to promote a harmonised set of laws for property in Australia.

The result has been the preparation of draft legislation, entitled the Uniform Torrens Title Act (UTTA), which it is proposed, would become the legislative instrument that regulates real property practices and procedures in every jurisdiction.

The UTTA would enable states and territories to establish a uniform system for managing property transactions; reduce the costs and transaction timeframes for vendors, purchasers, lessors, and lessees; and ensure practitioners have the capacity to represent interstate clients more effectively.

The final revised version of the UTTA is currently the subject of consultation around the country. The preparation of the UTTA is a landmark achievement and the culmination of over ten years work by leading legal and industry representatives. Notably, Professor Peter Butt has generously dedicated enormous amounts of his own time and energy to this project and the profession is deeply in his debt.

In concluding, I would like to congratulate the recipients of the 2014 President’s Medal Award. This year the Judging Panel, took the unprecedented step of unanimously awarding Medals to two recipients, Geoffrey Eames AM QC and Raelene Webb QC, both of whom have made extraordinary contributions to the profession and broader community. A profile article on both recipients can be found on page 25.

Finally, I wish you all a merry Christmas and all the very best for the New Year.

Martyn Hagan

Secretary-General

6 LAW COUNCIL REVIEW

SPECIAL FEATURE

AT LAST! A COMPREHENSIVE GUIDE OF THE RULE OF LAW PRINCIPLES AND HUMAN RIGHTS STANDARDS THAT APPLY TO THOSE SEEKING ASYLUM IN AUSTRALIA.

E very person has the right to seek and enjoy asylum from persecution and fear of serious harm. It’s a right

protected under the Universal Declaration of Human Rights and a number of International Conventions to which Australia is a party.

But while this right has never been the subject of challenge over many decades of implementation of the Convention Relating to the Status of Refugees, the laws and policies surrounding asylum in Australia have undergone continuing change by successive Governments over the past decade.

These changes have resulted in a system that’s complex and difficult to access and understand. So much so, that it is having an impact on protection visa applicants’ ability to access legal or migration advice, risking refoulement.

And the debate over these laws and policies is occurring regularly, both in public and in Parliament.

The Law Council constantly monitors the content and operation of laws, regulations and policies affecting the rights, status and treatment of people seeking asylum in Australia, including those who arrive without a valid visa.

To that end, the Law Council of Australia has released its Asylum Seeker Policy. This Policy sets out the rule of law principles and human rights standards that apply, including the principle of non-refoulement that prohibits states from returning refugees to countries where their lives or freedoms are threatened.

It also provides a framework to assess existing and proposed laws and policies.

But the Policy’s core message is that all people seeking Australia’s protection should be treated with fairness, humanity, dignity and respect in accordance with the Rule of Law, procedural fairness guarantees and Australia’s international obligations.

To be effective and sustainable, Australia’s laws, regulations and policies must be developed with due regard to regional efforts to address irregular migration. Immigration detention must be humane and dignified, and asylum seekers with adverse security assessments facing indefinite detention must be given the opportunity to seek meaningful merits review for such an assessment.

The Law Council does not underestimate the challenges faced by Australian Governments in responding to irregular migration, especially the potential loss of life associated with asylum seekers arriving by boat, which is why the Policy also sets out the legal framework that applies to boats carrying asylum seekers being intercepted by Australian authorities. It doesn’t prescribe a certain legislative or policy response to these challenges, but rather highlights the relevant Rule of Law and international human rights law principles that apply.

The Law Council believes that with the help of its Asylum Seeker Policy, the government can define laws and policies to protect the interests of both Australia and those seeking asylum.

LAW COUNCIL RELEASES NEW

ASYLUM SEEKER POLICY

SPECIAL FEATURE

HIGH INDIGENOUS IMPRISONMENT RATES

AND

MANDATORY SENTENCING

While the recently released Productivity Commission’s Overcoming Indigenous Disadvantage Report showed that some improvement is being made in Indigenous employment, education and health, Indigenous populations in prisons have doubled since the time of the Royal Commission into Aboriginal Deaths in Custody in 1991.

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8 LAW COUNCIL REVIEW

T he Law Council of Australia declared the findings a “national crisis” and called on the Government to develop a

national response.

In December last year, the Federal Government announced $13.4 million in cuts to Indigenous legal services and has now also refused to guarantee ongoing funding for Family Violence Prevention Legal Services, the only legal services dedicated to assisting Aboriginal victims of family violence who are mostly women and children.

“The recent announcement by Senator Scullion that the Federal Government is no longer considering justice targets in response to what can only be called a national emergency, is unexplained and unacceptable,” said Law Council President-elect Mr Duncan McConnel.

Director of the New South Wales Bureau of Crime Statistics and Research Dr Don Weatherburn PSM estimated that maintaining the current level of Indigenous imprisonment would cost Australian tax-payers more than $795 million a year.

IMPACT OF MANDATORY SENTENCINGThe alarming rate of Indigenous imprisonment is being impacted by the expanded take-up of minimum mandatory sentencing regimes.

“There are already many reported examples where mandatory sentencing has applied with apparently unjust results – such as a 15-year-old Aboriginal boy receiving a 20-day mandatory sentence for stealing pencils and stationery,” said Law Council President-elect.

The Law Council of Australia and its Constituent Bodies have consistently opposed mandatory minimum sentencing for criminal convictions. Such opposition rests on the basis that mandatory sentencing imposes unacceptable restrictions on judicial discretion and independence, is inconsistent with rule of law principles, and undermines confidence in the justice system.

It is also inconsistent with Australia’s voluntarily assumed international human rights obligations.

According to Law Council President-elect, Mr Duncan McConnel:

“Policy makers need to consider alternative non-custodial options and justice reinvestment strategies”.

A number of prominent judges writing extra-judicially agree, arguing that it can produce disproportionate and unjust sentencing outcomes. For example, in February 2000, former High Court Chief Justice Sir Gerard Brennan stated:

“A law which compels a magistrate or judge to send a person to jail when he doesn’t deserve to be sent to jail is immoral… Sentencing is the most exacting of judicial duties because the interests of the community, of the victim of the offence and of the offender have all to be taken into account in imposing a just penalty.”

Research shows that when members of the public are fully informed about particular circumstances of the case and the offender, 90 per cent view judges’ sentences as appropriate.

The Law Council’s mandatory sentencing Discussion Paper discusses how minimum sentencing can result in harsh and disproportionate sentences where the punishment may not fit the crime.

The Paper cited several examples of unjust cases where mandatory sentencing was applied to vulnerable members of the community, including juveniles, indigenous Australians and people with a mental illness or intellectual disability.

It also discussed the economic costs associated with mandatory sentencing, the inconclusive evidence of a reduction in crime, and the disproportionate social costs on the most vulnerable groups in society.

It then went on to provide alternatives to mandatory sentencing regimes such as justice reinvestment programs where funds from incarceration are diverted to community-based programs and services that address the underlying issues leading to crime.

Further information on Indigenous imprisonment and mandatory sentencing can be found in this advocacy campaign.

Approved by its Directors in June 2014, the Law Council’s Mandatory Sentencing Policy (and accompanying Discussion Paper) were developed with the direction of the Law Council’s Executive and with assistance from the New South Wales Bar Association, ACT Law Society, Law Society of South Australia, Bar Association of Queensland, Queensland Law Society; Northern Territory Law Society; the Law Council’s National Criminal Law Committee, the Law Council’s Indigenous Legal Issues Committee, the Law Council’s Human Rights Committee, and the Law Council’s Access to Justice Committee.

The Law Council developed a factsheet based on the findings of the Productivity Commission Report, building on its 2013 factsheet on Indigenous imprisonment.

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˙

INDIGENOUS IMPRISONMENT

STATISTICSAboriginal and Torres Strait Islander Australians are over-represented in the criminal justice system. Although Aboriginal and Torres Strait Islander adults make up only 2.3% of the Australian adult population, they accounted for 27.4% of all prisoners.

329454

Aboriginal and Torres Strait Islander 10–17 year olds in detention

Non-Indigenous 10–17 year olds in detention

409 males 47 females 294 males 35 females

VSCHILDREN IN DETENTION

IMPRISONMENT RATES

Imprisonment rates for Indigenous youths are

24 times higher than non-Indigenous young people.

Imprisonment rates for Aboriginal and Torres Strait Islander adults are

13 times the rate for non-Indigenous adults.

Since 2000 female Indigenous imprisonment has been growing at a faster rate than that of Indigenous males 73.7%

increase for females

38.6%increase for males

VS

All states and territories recorded increased rates of imprisonment for Aboriginal and Torres Strait Islander

adults between 2000 and 2013adult Aboriginal and

Torres Strait Islander femalesadult Aboriginal and

Torres Strait Islander males

365.9 per

100,000

3765.1 per

100,000

Developed by the Law Council of Australia based on the findings of the Productivity Commission Overcoming Indigenous Disadvantage 2014 Report.

10 LAW COUNCIL REVIEW

Australian federal, state and territory criminal laws generally only set a maximum penalty for an offence, thereby allowing courts (i.e the judge or magistrate) to exercise discretion when determining appropriate sentences. Laws that specify a mandatory minimum sentence generally set a minimum or fixed penalty for an offence. Some laws may allow judges to make exceptions from the mandatory sentence, while others are more limited in their application.

In recent years, Australian parliaments have increasingly intervened in the sentencing process with prescribed mandatory sentences becoming more common. The growth of mandatory sentencing laws reflects a desire in some quarters for tougher sentences and dissatisfaction with the traditional sentencing system where courts have a broad discretion to deal with offenders.

The Law Council is concerned that mandatory sentencing results in harsh and unjust punishments because it tries to apply a theoretical blanket standard to the real life, complex circumstances that surround each criminal act. There are numerous examples of anomalous or unjust cases where mandatory sentencing has been applied in Australia, such as:

• a 16-year-old with one prior conviction received a 28-day prison sentence for stealing 1 bottle of spring water;

• a 17-year-old first time offender received a 14-day prison sentence for stealing orange juice and “Minties”;

• a 15-year-old boy received a 20-day mandatory sentence for stealing pencils and stationery worth less than $100. He died while in custody; and

• a woman and first-time offender received a 14-day prison sentence for stealing a can of beer.

Such cases highlight how mandatory sentencing inhibits judges from handing down ‘punishments that fit the crime’.

It also shows that it is the courts, rather than the Parliament, that deal with the reality rather than the idea of crime. Only the courts have access to the full facts of any particular case. Because of this, the Law Council supports an approach where the courts are given the ultimate say over the appropriate penalty for an offence.

WHAT IS MANDATORY SENTENCING?

MANDATORY SENTENCINGFACTSHEET

DOES MANDATORY SENTENCING MEAN BETTER JUSTICE?

AUG - DEC 2014 11

The short answer is: no one really knows, however, some studies suggest it can make things worse.

In the United States (US), some evidence does suggest that mandatory sentencing may reduce crime, although it is unclear whether several other variables known to influence crime reduction are also contributing factors. Further, faced with unacceptable high levels of prison incarceration rates, 29 states in the US have moved to cut back on mandatory sentences since 2000. A 2011 report by the United States Sentencing Commission found that certain mandatory minimum provisions apply too broadly and are: set too high; lead to arbitrary, unduly harsh, and disproportionate sentences; can bring about unwarranted sentencing disparities between similarly situated offenders; have a discriminatory impact on racial minorities; and are one of the leading drivers of prison population and costs.

In Australia, there is conflicting evidence as to the deterrent effectiveness of mandatory sentencing. For example, the experience in the Northern Territory during the initial mandatory sentencing regime for property offences showed that property crime increased during mandatory sentencing, and decreased after its repeal.

Evidence suggests that a person may be deterred from committing a crime if he or she feels certain that they will be caught and punished. However, a 2011 review by the Victorian Sentencing Advisory Council found that increasing the length of imprisonment resulted in no corresponding increase in a deterrent effect.

In fact, the Victorian Sentencing Advisory Council found that mandatory sentencing increased the likelihood of recidivism because it placed prisoners in a learning environment for crime, reinforced criminal identity and failed to address the underlying causes of crime.

There are a number of other ways to prevent and punish crime that can deliver real outcomes for the community without relying on mandatory sentencing.

‘Justice reinvestment’ is an alternative to imprisonment which diverts funds from incarceration to community-based programs and services that address the underlying causes of crime, such as lack of housing or substance abuse. The idea is to try and invest in initiatives that prevent people from offending or re-offending rather than using mandatory sentencing, which only leads to more prison costs.

For some criminal offending, options such as community service orders or rehabilitation programs can be cost-effective ways to address the underlying problems causing a person to commit crime. These alternatives should be available to courts to consider when determining an appropriate punishment.

A further legal tool would be to increase maximum penalties for particular offences to reflect community concern regarding the seriousness of an offence. While the increase of a maximum penalty may not achieve a deterrent effect, it may provide guidance to judges regarding community perceptions as to the gravity of an offence while maintaining judicial discretion in determining a just and appropriate punishment.

WHAT ARE THE ALTERNATIVES TO MANDATORY SENTENCING?

DOES MANDATORY SENTENCING REDUCE CRIME?

12 LAW COUNCIL REVIEW

T he Law Council recognises Australia’s need for a strong legislative regime to criminalise acts of terrorism and

protect Australians from the foreign fighter threat. However, it believes many of these laws run contrary to established notions of criminal justice.

The Law Council has always been at the forefront of public debate on national security legislation. It maintained that position, participating in the Parliamentary Joint Committee on Intelligence and Security’s (PJCIS) inquiries on the most recent legislation.

The National Security Legislation Amendment Bill (No. 1) was the first Bill introduced. It contained controversial offences for unauthorised disclosure of information relating to the Australian Security and Intelligence Organisation’s (ASIO) special intelligence operations (SIOs). The Law Council expressed concerns about the

proposed offences which apply to ‘any person’ including, for example, a lawyer or a journalist reporting a matter in the public interest.

This could potentially lead to many of ASIO’s operations being classed as an SIO and would make it an offence for a journalist or a lawyer to report on information from whistleblowers. An issue compounded by the fact that the legislation grants civil and criminal immunity from prosecution to intelligence officers and ‘affiliates’ engaged in special operations.

The legislation also expanded ASIO’s computer and data access under warrant, including allowing ASIO to access and disrupt entire computer networks and third party computers to access data in a target computer.

The second piece of legislation – the Counter-Terrorism (Foreign Fighters) Act 2014 – introduced a new offence of entering or

remaining in a ‘declared’ country or area. On 3 October 2014, the Law Council appeared before the PJCIS hearing following its submission on the Bill. The Law Council submitted that the declared area offence was framed too broadly, and could significantly affect Australians with valid reasons for travel— providing legal advice to a client, visiting a friend, partner or business associate, or conducting bona fide business, teaching and/or research.

The Law Council advised that a preferable approach would be to rely on the proposed offences of entering a foreign country with the intention of engaging in hostile activity, or preparing to do so. These are sufficiently broad to prevent a person from travelling to a certain region to engage in terrorist activities.

The Law Council’s submission also suggested improvements, such as allowing courts to determine a legitimate purpose on a case-by-case basis and requiring intent to

RECENT CHANGES

TO AUSTRALIA’S

COUNTER-TERRORISMLAWS Four pieces of legislation have been introduced into Parliament since mid-2014 in a series of reforms to Australia’s national security and counter-terrorism laws. The legislation constituted the most significant modification to Australia’s anti-terrorism laws in nine years.

SPECIAL FEATURE

travel to a declared area for an illegitimate purpose. This would help ensure people without criminal intentions aren’t inadvertently captured by the offence.

Many of the Law Council’s recommendations in relation to other aspects of the Bill were accepted by the PJCIS and subsequently reflected through Government’s amendments. These included Law Council recommendations relating to ensuring that information obtained from a foreign country under torture or duress, directly or indirectly, will not be admissible in an Australian court; clarifying the meaning of the terms ‘encourage’, ‘promotion’ and ‘advocacy’ with regard to the new ‘advocacy of terrorism’ offences; and introducing certain safeguards in respect of Customs’ expanded detention powers.

The Law Council also supported the PJCIS’s additional recommendation that its oversight functions be expanded to include the Australian Federal Police’s counter-terrorism activities.

The Counter-Terrorism Amendment Bill (No. 1) 2014 was the third Bill introduced. While it was narrower in scope than the previous bills, it nonetheless contained significant amendments. The Law Council recommended that the proposed extended grounds for control orders to preventing the provision of support for, or the facilitation of, a terrorist act or a hostile activity in a foreign country, should not be progressed.

It made this recommendation on the basis that control orders have the potential to significantly restrict a person’s liberty where no criminal conduct may have occurred and where there may be no actual provision of support for or facilitation of a terrorist act. Further, the expansion was unnecessary in light of the preparatory terrorism offences, recently expanded foreign incursion offences, advocacy of terrorism offence, recent amendments to ensure that foreign evidence may be more easily adduced and broad investigative and surveillance powers which are also available to support the investigation of possible terrorism offences.

The Law Council also drew attention to problematic features of the proposed regime which would: expand provisions for emergency authorisations of ASIS, Australian Signals Directorate (ASD) and Australian

Retention) Bill 2014. This Bill seeks to introduce a mandatory telecommunications data retention scheme into Australia which would require telecommunications service providers to retain certain telecommunications data for a period of two years. The Bill is not simply a counter-terrorism measure but also aims to assist agencies in the prevention and detection of serious crime.

On 29 November 2014 the Law Council of Australia adopted a policy opposing the scheme in the Bill on the basis that it had not been demonstrated to be a reasonable, necessary and proportionate response to a legitimate purpose. The Law Council policy noted the scheme may enable the retention of a growing set of telecommunications data over time, without further consideration by Parliament. It also considered that a warrant should be required to access personal information to ensure that it is only accessed where it is really necessary for the purpose of preventing or detecting serious crime or threats to national security.

The Law Council welcomes the Bill’s referral to the PJCIS for review and looks forward to participating in the Parliamentary processes and to examining the contents of the proposed new telecommunications data retention laws in detail.

The legislation also expanded ASIO’s computer and data access under warrant, including allowing ASIO to access and disrupt entire computer networks” and third party computers to access data in a target computer.”

Geospatial-Intelligence Organisation (AGO) activities; and allow ministerial authorisations to be given for ASIS to undertake activities in relation to one or more members of a class of Australian persons in certain circumstances.

While these key features of the Bill were ultimately enacted, the PJCIS made a number of recommendations which reflected the Law Council’s recommendations relating to the Bill, including:

• providing greater clarity around what would constitute ‘support’ for or ‘facilitation’ of a terrorist act or engagement in hostile activities;

• continuing to require each of the obligations, prohibitions and restrictions proposed under a control order to be justified;

• providing more information in the Explanatory Memorandum about how a ‘class of Australian persons’ will be defined; and

• the appointment of the Independent National Security Legislation Monitor occur as a matter of urgency.

On 30 October 2014 the Government introduced its fourth piece of counter-terrorism legislation: the Telecommunications (Interception and Access) Amendment (Data

“

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14 LAW COUNCIL REVIEW

SPECIAL FEATURE

According to the Fourth Legal and Related Services Export Survey Report, released 18 December 2014

by the Law Council of Australia with the support of the Attorney-General’s Department and the Large Law Firm Group, the total income from exports and international activity in the 2010-2011 financial year was $932.8million, up 31.6 per cent from 2008-2009.

The legal profession plays a critical part in the creation of national wealth through the provision of ‘consumer’ and ‘embodied’ professional services. Consumer legal services are typically defined as services where the client is the ‘end-consumer’, such as in family law, personal injury, estate and probate matters, and so on. Embodied services include legal and related advice services on corporate law, intellectual property and banking and finance. The legal profession, as the primary providers of legal and related services, is vital to the facilitation of all domestic and international trade.

The Legal and Related Services Export Survey was formerly coordinated by the now disbanded International Legal Services Advisory Council (ILSAC). The Survey is undertaken every two to three years and is funded by the Attorney-General’s Department, the Law Council and the Large Law Firm Group. Originally developed to improve the accuracy of available data on Australia’s export markets for legal services, the Survey is now the most accurate source for legal services export data.

The Fourth Legal and Related Services Export Survey collected data on two areas of legal services: where an Australian legal service provider provides services to non-residents

FOURTH LEGAL AND RELATED SERVICESEXPORT SURVEY

(exports); and where an Australian legal service provider provides services to Australian residents where there is an international aspect to the service.

The Survey was sent to providers of legal and related services who have an international practice or an overseas office. Data was collected by FMRC from 58 providers of legal and related services including the 10 largest national law practices, which, combined, are responsible for more than 65% per cent of total exports of legal and related services. Providers of legal and related services for the purposes of this Survey were legal practitioners (solicitors and barristers) and patent and trade mark attorneys. No response was received from arbitrators and mediators.

The information contained in the Survey Report is extremely valuable to providers of legal and related services in the development of business plans, identification of opportunities and the development of strategies for increasing exposure to rapidly emerging markets.

The Survey informs Law Council initiatives, policies and programs to promote the export of legal and related services.

The Survey also informs the Australian Government and its departments and agencies about the value of legal services exports. This is useful because lawyers and law firms are not always associated with the creation of national wealth. The Attorney-General’s Department uses these statistics in the development of policy initiatives relating to regulatory impediments within Australia to cross-border activity by law firms and legal practitioners. The Survey Report is used by the Department of Foreign Affairs and Trade

to develop market access strategies and determine negotiating priorities for bilateral and multilateral trade agreements.

Similarly, the Australian Trade Commission (Austrade) uses the statistics in export promotion work and in trade development initiatives, such as overseas missions, to expand opportunities for legal services exporters. Law firms and lawyers have directly benefited through a variety of measures, including Export Market Development Grants.

Export work is expanding through technological advances in communications media and improvements in international travel and is increasingly available to most firms.

International trade in legal services is by no means restricted to large law firms. Australian law practices that do not necessarily consider themselves ‘exporters’ can greatly benefit from increased international opportunities. Austrade has also noted the case of a smaller Sydney legal practice which, as the result of expanded trade and aviation links with Hong Kong, gained significant property conveyancing work from Hong Kong airline pilots keen to invest in Australia.

Ultimately, the Survey attests to the international competiveness of Australian lawyers and law firms and evidences the skills and expertise in important and growing areas of cross-border practice, such as intellectual property, information technology, telecommunications, and corporate work. The Survey also underscores the role of the legal profession as a valuable contributor to national wealth through both direct exports of legal services and trade facilitation.

THE VALUE OF AUSTRALIA’S EXPORT MARKET FOR LEGAL AND RELATED SERVICES IN 2014 IS LIKELY TO TOP AUD$1 BILLION.

The Fourth Legal and Related Services Export Survey collected data from

2010 to 2011 on the export of Australian legal and related services.

The results of the Survey are used by the Law Council of Australia,

the Australian Government and other bodies to develop initiatives,

policies and programs to promote the export of legal and related services.

The total income from exports and international activity in 2010-11 rose by

31.6% from 2008-2009.

$932.8m

$709.1m

2008 - 09 2010 - 11

In 2010-11 the 10 largest national law firms exported

of legal and related services. 65.3% of total export market.

$609m

Asia remains Australia’s largest regional market for the export of legal and

related services accounting for

$320mof total exports.

The most significant growth was in South-East Asian and European markets, with exports to:

KEY FINDINGS

Excluding China & Hong Kong, exports to Asian markets grew by

$78.3m or 66.3%

to $196.4m.

EXPORT SURVEY

Fourth Legal and Related Services

Market growth and share

Total income

Indonesia up by

115% to $15.2m

United Kingdom up by

86.6% to $125.7m

Singapore up by

80% to $73.1m

Continental Europe up by

72.6% to $125.6m

16 LAW COUNCIL REVIEW

70% or $653.2m of total legal services exports were delivered through cross-border supply

an increase of $181.6m or

38.5%

since 2008-09.

Legal and related services provided through commercial presence have increased by

$48.8m or 48.1%

to $150.3m since 2008-09.

The top four areas of work continue to be:

CORPORATE WORK

$264.8m 28.4% of total export market,

an increase of $85.9m (48%) from 2008-09.

INTELLECTUAL PROPERTY, INFORMATION TECHNOLOGY AND

TELECOMMUNICATION WORK (IP, IT and Telco)

$248.7m 26.7% of total export market,

an increase of $51.6m (26.2%) from 2008-09.

LITIGATION RELATED WORK (excl. arbitration)

$167.1m 17.9% of total export market,

an increase of $91.1m (119.8%) from 2008-09.

BANKING AND FINANCE WORK

$95.2m 10.2% of total export market,

an increase of $45.0m (89.7%) from 2008-09.

2006 - 07

$92m

2008 - 09

$118m

$39m

2010 - 11

The total value of legal and related services provided through fly-in/fly-out has fallen by more than 66% since 2006-07. This trend appears to coincide with an increase

in work provided through cross-border supply.

Over 97% of exports of legal and related services to North America were delivered through cross-border, or

fly-in/fly-out modes of supply.

Top work areas Mode of supply

EXPORT SURVEY

SURVEY REPORTClick here to read the full

Fourth Legal and Related Services

CROSS BORDER

COMMERCIAL PRESENCE

FLY-IN / FLY-OUT

AUG - DEC 2014 17

T he annual Australian Young Lawyer of the Year Award was won by Ms Kara Cook; the National Golden Gavel was

taken home by Mr Jamie Cook; the National Indigenous Legal Professional of the Year Award was won by Ms Cheryl Orr and the National Indigenous Law Student of the Year Award was won by Ms Sara Wood.

NATIONAL INDIGENOUS LEGAL PROFESSIONAL OF THE YEAR AWARD 2014 AND NATIONAL INDIGENOUS LAW STUDENT OF THE YEAR AWARD 2014The National Indigenous Legal Professional of the Year is awarded to a solicitor or barrister who has demonstrated exceptional commitment to providing legal representation, advice or assistance and championing the rights of Indigenous persons in a legal environment. The awards are administered and judged by the Law Council of Australia.

The Indigenous Law Student of the Year is presented to a candidate with outstanding academic achievement and community involvement.

The winner of this year’s Legal Professional Award, Ms Cheryl Orr, was an outstanding candidate who provided exceptional representation and advice to champion the legal rights of Indigenous Australians and their families.

“The power to be heard comes from a voice strong enough to be listened to. I am proud to acknowledge my practising certificate has

LEGAL AWARDS ATTRACT

‘OUTSTANDING’ NOMINEES

given me the ability to be a strong voice for grass roots Aboriginal people.

“It is on behalf of the many Aboriginal peoples I have represented over the years that I accept the Indigenous Legal Professional of the Year Award. Without their trust, belief and faith in me to be their voice the award would not have been possible,” Ms Orr said on receiving her award.

In particular, Ms Orr worked tirelessly in the Indigenous care and protection area for Indigenous children to have them returned to their families after being removed by the Department of Child Services in New South Wales.

“Personally I think it is a sad day that I am being acknowledged nationally for practising in a jurisdiction whereby Aboriginal Peoples’ children continue to be removed at a rate

higher than any other group of people in this country.

“My voice would be worthless but for the courage, commitment and dedication Aboriginal parents have to ensuring their home environments are safe and nurturing for the return of their children. Any lawyer is only as successful as the facts they have in front of them. I am blessed that I have managed to obtain “a white fellas’” degree in order to protect “our black fellas’” way of being family,” Ms Orr said.

The Indigenous Law Student of 2014 was awarded to Ms Sara Wood from the Australian National University (ANU).

The judging panel said Ms Wood’s dedication and commitment to academic excellence is evidenced through her academic achievements and multiple awards she has won during her undergraduate degree studies.

“I think that education and the opportunities we are afforded for learning are a privilege, and though it has been challenging at times, I have thoroughly enjoyed my time at university.

“I would thoroughly recommend it to others, for the experiences I have had while studying, and for the avenues it has opened for the future,” Ms Wood said.

Ms Wood has also mentored young Indigenous students and is actively involved with the Tjabal Centre at the ANU.

THE LAW COUNCIL OF AUSTRALIA WOULD LIKE TO CONGRATULATE THE 2014 AWARD WINNERS

AND ACKNOWLEDGE THE OUTSTANDING

NOMINATIONS FROM YOUNG LAWYERS AND LAW STUDENTS, VYING FOR THE PRESTIGIOUS

INDUSTRY AWARDS.

18 LAW COUNCIL REVIEW

The 2014 awards were presented to Ms Orr and Ms Wood at the World Indigenous Legal Conference hosted by the Indigenous Lawyers Association of Queensland in Brisbane on 26 June 2014.

The National Indigenous awards were established in 2010 by the then Commonwealth Attorney-General and Minister for Indigenous Affairs.

AUSTRALIAN YOUNG LAWYER OF THE YEAR AWARDThe Australian Young Lawyer of the Year Award was first presented in 1999 to encourage and foster Young Lawyer organisations to establish programs for the benefit of the profession and the community, and to recognise and reward the achievements and contributions of individual lawyers.

This year’s winner, Queensland solicitor Ms Kara Cook, was commended for her significant contribution to the profession as a volunteer in community legal centres providing legal advice to disadvantaged people with a particular focus on women and victims of domestic violence and raising community awareness about domestic violence.

Law Council Secretary-General Mr Martyn Hagan said the award demonstrated the commitment and high calibre of work young lawyers, such as Ms Cook, undertake on a daily basis.

“Ms Cook is a dedicated legal practitioner who is recognised for her services to the legal community being named as YWCA’s 125 Leading Queensland Women in 2013, and in 2012 being named as Women Lawyers’ Association of Queensland Emergent Woman Lawyer of the Year,” Mr Hagan said.

Ms Cook said she was surprised but honoured to win the award.

“It’s lovely to be recognised,” she said.

“This award recognises the work done by young lawyers across Australia to assist their communities and in my case, the work provided by staff and volunteers at community legal centres, to assist some of the most vulnerable people in our society.

“Being able to raise community awareness of domestic violence and women’s issues more broadly is great.”

Meanwhile, the Australian Young Lawyers Organisation Award was presented to the New South Wales Young Lawyers’ Workplace and Safety Committee for its work in establishing a pro bono scheme at the Fair

Work Commission in Sydney for parties who are unrepresented, educationally challenged or have language barriers.

Mr Hagan also extended his congratulations to the New South Wales Young Lawyers’ Committee for its outstanding achievements and said the award highlights the important contribution young lawyers make in the Australian community at both an individual and organisational level.

“The New South Wales Young Lawyers’ Workplace and Safety Committee arranges for two young lawyers each week to provide information to unrepresented litigants and assists them to present their applications to the Commission.

“This scheme reduces the time spent in hearings at the Commission and results in a fairer outcome for litigants,” Mr Hagan said.

Chair of the Law Council’s Australian Young Lawyers Committee Mr Mitchell Strachan said the recipients of the Australian Young Lawyer Awards demonstrate the great work that young lawyers do in their communities by

This award recognises the work done by young lawyers across Australia to assist their communities and in my case, the work provided by staff and volunteers at community legal centres, to assist some of the most vulnerable people in our society..”

“

Australian Young Lawyer of the Year Award Winner, Kara Cook

AUG - DEC 2014 19

volunteering their time, skill and effort, and the difference they can make.

“As individuals involved in community groups and as organisations supporting community projects and their young lawyer colleagues, the recipients stand as an example to all young lawyers to continue their volunteer contribution,” Mr Strachan said.

2014 NATIONAL GOLDEN GAVELJudges for the entertaining Golden Gavel Award this year included Mr Martyn Hagan, Secretary-General, Law Council of Australia; Ms Natasha Rudra, Food and Lifestyle Editor, The Canberra Times; Mr Grant McAveney, Senior Lawyer, ABC and former National Golden Gavel winner.

The 2014 Award was taken home by UK Lawyer, Mr Jamie Cook, with his humorous insights into the topic “Working Class Lawyer”. Mr Cook is from the city of Glasgow and is on a trainee secondment with Norton Rose Fulbright.

Presented by the Australian Young Lawyers’ Committee of the Law Council of Australia, this annual public speaking competition allows young lawyers to represent their firms before a national audience of legal professionals. The contestants are judged on their advocacy and comic skills, with five minutes to argue their case on a humorous legal topic.

Mr Cook, who has only recently moved to Australia, said the Golden Gavel was a completely new experience.

“I am delighted to have won – it’s such a great event, and there is no equivalent in the UK.

“In both the state and national rounds, I was given topics that featured prominent Australians who were unknown to me, so I have to thank the other graduates at Norton Rose Fulbright for helping me write the speeches,” Mr Cook said.

ACT prosecutor Ms Soraya Saikal walked away with the People’s Choice Award for her speech “My milkshakes bring all the briefs to

the yard – winning work at the bar” and said it was great to be involved in the Awards.

“I incorporated a soundtrack, a prop and some theatrics into my speech and I was very excited to win the People’s Choice Award,” Ms Saikal said.

Mr Hagan said this year’s competitors were of an exceptionally high standard and very entertaining.

“It was a pleasure to be part of the judging panel for this year’s National Golden Gavel and it was great to see young lawyers have fun at this event and just be able to get away from the serious environment of being with clients or court for one night.

“Hailing from Glasgow, Mr Cook was an impressive speaker, his performance was like that of a young Billy Connolly combined with the sharp mind of a lawyer going places.

“Lawyers are often typecast as serious or bookish types but the National Golden Gavel provides young lawyers with an outlet to show their creativity and I encourage young lawyers to participate in next year’s Golden Gavel,” Mr Hagan concluded.

The Law Council presents and supports a number of Awards designed to recognise excellence in, and service to, the Australian legal profession.

Further information about these Awards and others including a range of scholarship programs is available online.

Lawyers are often typecast as serious or bookish types but the National Golden Gavel provides young lawyers with an outlet to show their creativity and I encourage young lawyers to participate in next year’s Golden Gavel.”

“

Martyn Hagan and Australian Young Lawyer (Group) Winner, President of the New South Wales Young Lawyer Committee, Thomas Spohr

Runner up of NGG, Soraya Saikal

Martyn Hagan and NGG Winner, Jamie Cook, with NGG Judges Grant McAveney and Natasha Rudra.

20 LAW COUNCIL REVIEW

RYAN TURNER, SANTOW SCHOLARSHIP FOR CORPORATIONS LAWMr Turner is a Graduate at Gilbert + Tobin in Sydney, before which he spent a period working with David Chivers QC in London. He graduated from the Australian National University with First Class Honours in both Arts and Law and has previously published in the Company & Securities Law Journal and the University of New South Wales Law Journal.

Mr Turner was awarded the inaugural Santow Scholarship for his paper ‘Revisiting the direct liability of holding companies following Chandler v Cape PLC. His paper compares the Australian and English law approaches to the tortious liability of parent companies to employees of a subsidiary and related jurisdictional issues for transnational corporate groups.

EMMA HASSARAM, FORSYTH POSE SCHOLARSHIP FOR TAXATION LAWMs Hassaram is in her second year at PricewaterhouseCoopers, working in the corporate tax team. She studied a combined Arts (Philosophy)/Law (Honours) degree at the University of Melbourne, and is currently undertaking a Masters of Law. She has an interest in tax policy and is keen to continue in a career in tax law.

The paper was on corporate tax reform, specifically, on the merits and mechanism of an Allowance for Corporate Equity (ACE) in Australia. The ACE is a system that allows companies to take a further deduction for the cost of equity financing, congruent to the deduction currently allowed for interest expenses on debt used for financing corporate investments. This was in response to the Tax Forum’s decision to commission further research into the ACE in 2011. The essay engaged with the findings of the Business Tax Working Group’s final report on the ACE, and focussed on some of the areas that were not considered, such as its interaction with the imputation system.

Ms Kemp, Mr Turner and Ms Hassaram each received $5,000 for their award-winning essays. The Gaire Blunt, Santow and Forsyth Pose scholarships will be available again next year.

AND THE AWARDS GO TO…

THREE SCHOLARSHIPS WERE AWARDED THIS YEAR BY THE BUSINESS LAW SECTION (BLS) OF THE LAW COUNCIL OF AUSTRALIA FOR THE BEST ESSAYS ON COMPETITION LAW, CORPORATIONS LAW AND TAXATION LAW RESPECTIVELY.

The Law Council congratulates the following 2014 recipients of the BLS scholarships…

KATHARINE KEMP, GAIRE BLUNT SCHOLARSHIP FOR COMPETITION LAWMs Kemp is a PhD Candidate at the University of NSW. She was previously a solicitor at Allens and a barrister at the Victorian Bar. She then spent six years in South Africa. After graduating LLM (cum laude) from Stellenbosch University, Ms Kemp worked on a number of competition law cases, most often as adviser to the Competition Commission of South Africa. She also co-authored Competition Law of South Africa (LexisNexis), and was a sessional lecturer at Stellenbosch University. Ms Kemp has now returned to live in Australia.

Her Gaire Blunt Scholarship paper, entitled ‘The Case Against “French J’s Arsonist”’, challenges the commonly-cited illustration that a dominant firm would not misuse its market power if it hired an arsonist to burn down its rival’s factory. The paper argues that the dominant firm’s act of arson provides an example of intentionally exclusionary conduct with no efficiency justification, which should fall squarely within the prohibition.

WHO WAS GAIRE BLUNT?

The Gaire Blunt Scholarship commemorates its namesake, who was a leading competition law practitioner and a partner at Allen Allen & Hemsley (now Allens) from 1970 to 2005.

After the enactment of the Trade Practices Act in 1974, Mr Blunt was in the vanguard of those who were to shape the form, regulation and administration of competition law in Australia. He was a member of the inaugural Trade Practices Committee of the Law Council of Australia, the first Consulting Editor to the CCH Trade Practices Reporter and one of the leading practitioners in the field.

For almost 10 years Mr Blunt was a lay member of the Administrative Division of the New Zealand High Court. His work for the New Zealand High Court on the Kapuni gas case was a highlight.

WHO WERE FORSYTH AND POSE?

This scholarship was named after Neil Forsyth QC and Kevin Pose, two leading taxation law practitioners. Both were long-standing members of the BLS’ specialist Taxation Committee.

Mr Neil Forsyth QC was one of Australia’s foremost tax advisers from the 1980s until his untimely death in 1997. He was immensely learned, personally charming and incredibly generous to his colleagues. Mr Forsyth QC was graced with a powerful intellect, strong work ethic, commitment to justice and a profound knowledge of all aspects of taxation and commercial law. He had an incisive sense of humour and, not surprisingly, he was one of the Bar’s most esteemed and liked members. Mr Forsyth QC was a founding member of the BLS Taxation Committee.

Mr Kevin Pose was a well-established tax academic at University of Melbourne before reading with Neil Forsyth at the Bar. Mr Pose left the Bar to establish the tax team at Arthur Robinson and Hedderwicks (now Allens) and became one of Australia’s foremost tax practitioners and scholars. He was one of the subscribers in support of the memorandum advocating the creation of the BLS and one of the founding members of the BLS Taxation Committee. Mr Pose was known to be gentle, honest, unassuming and diplomatic. The tax community suffered a sad loss with his untimely death in 2010.

WHO WAS THE HON. SANTOW?

The Hon Kim Santow was always concerned to ensure that he gave younger lawyers the opportunity to demonstrate and develop their talents.

Having made his name in corporate law as a partner of Freehills and contributor to academia through both articles and teaching, the Hon. Santow was only the second solicitor to become a NSW Supreme Court Judge when he was appointed in 1993. He then served on the Court of Appeal from 2002 to 2007. During his distinguished time on the bench, he wrote many of the leading judgments on corporations law matters.

The Hon. Santow was an Officer of the Order of Australia, Chancellor of University of Sydney from 2001 to 2009 and a visiting scholar at Harvard and Cornell universities and at Lincoln’s Inn in London. Although he had a long list of impressive achievements, he is perhaps best remembered for the combination of his powerful intellect with humanity and generosity of spirit.

The BLS scholarships recognise that Mr Blunt, Mr Forsyth QC, Mr Pose and Mr Santow played a central role in developing and mentoring the careers of many young lawyers and were always concerned to ensure that they gave younger lawyers the opportunity to demonstrate and develop their talents.

AUG - DEC 2014 21

22 LAW COUNCIL REVIEW

THE LAW COUNCIL IS PROUD TO ANNOUNCE THE WINNERS OF THE 2014 LAW COUNCIL PRESIDENT’S MEDAL. AN INTERVIEW WITH THE MEDAL WINNERS CAN BE FOUND ON PAGE 25.Ms Raelene Webb QC and the Honourable Geoffrey Michael Eames AM QC were nominated by the New South Wales Bar Association and the Victorian Bar respectively.

Ms Webb was nominated for her extraordinary leadership of the profession; her contribution to constitutional and native title law; and her contribution to women in the law as a leading High Court advocate over two decades; professional development; and reconciliation for all Australians.

Mr Eames was nominated for his passionate commitment to making a difference in the law and its application to the Aboriginal people of Australia. In fact, that passion took him away from practice at the Victorian Bar to Alice Springs for 16 years.

Ms Webb is the current President of the Native Title Tribunal. Before that she was President of the Northern Territory Bar Association from 2009-2012, and then served as Treasurer and Vice President of the Australian Bar Association (“ABA”).

As a barrister she conducted a truly national practice, sourcing many of her briefs from interstate. She often appeared for (and advised) both the Commonwealth and governments in Western Australia, South Australia, Queensland and the Northern Territory. She also represented native title applicants in Western Australia and Queensland in native title cases in the Federal Court and the High Court.

Ms Webb developed a particular reputation and expertise in constitutional law and native title law, having advised and appeared as counsel in the High Court in most of the landmark cases on the judicial interpretation and development of native title/Aboriginal land law since the Mabo v Queensland decision.

In a speech to the Victorian Women Lawyers’ Association, the Honourable Justice Michael Kirby lamented the few speaking parts of women before the High Court in Australia. Justice Gaudron made similar comments to the Women Barristers Association in 1996, pointing to only two women ‘with speaking parts’ appearing at the time.

Ms Webb was one of those women.

For two decades she remained one of few women to regularly address the High Court from the central rostrum, and is probably the only woman to do so continuously for this period.

Before her appointment as President of the National Native Title Tribunal, Raelene was named one of the leading native title silks in Australia, recognising her contribution to this area of law. Since then she’s worked closely with governments, native title parties and other respondents to introduce innovative strategies for the earlier resolution of native title claims.

Her work as President of the Northern Territory Bar and Vice President of the ABA paved the way for advocacy training for the Territory Bar and national bars sharing Continuing Professional Development materials.

She taught for many years with various advocacy training bodies including the ABA (domestically and internationally); the Advocacy Training Council (nationally); and the Australian Advocacy Institute (nationally).

Ms Webb has contributed heavily to the Law Council of Australia’s work. She has worked as a Director (2009-2012); a member of the Finance Committee (2011-2013); and a member of the Strategic Initiatives Committee (2011- 2013).

2014 LAW COUNCIL OF

AUSTRALIA’S PRESIDENT’S

MEDAL

PROFILE

She was also a member of its Indigenous Legal Issues Committee from 2006 to 2013, where she appeared before various Senate Committees on the Law Council’s behalf to give evidence on such issues as recognition of customary law; the Northern Territory Emergency Response; and proposed amendments to the Native Title Act 1993 (Cth); and chaired a Reconciliation Action Plan (RAP) consultation meeting in Canberra in January 2011, and helped prepare the Reconciliation Action Plan launched in July 2011.

Mr Eames was a member of the Victorian Bar for more than 45 years. He practised in the Northern Territory and South Australia as a barrister and solicitor—sometimes simultaneously.

The first member of his family to go to University, Mr Eames graduated in law in 1968 and was admitted to practice in March 1969, going straight to the Victorian Bar.

He quickly developed a substantial practice in personal injuries—not surprising considering

he had served articles at Slater & Gordon with Geoffrey Llewellyn Jones, and served his pupilage at the Bar with Peter Hase. He also did some work in crime, and for conscientious objectors connected with conscription to the Vietnam war.

Mr Eames began voluntarily contributing to the community from the beginning of his professional life. He worked in the Fitzroy and Nunawading Legal Services in their earliest days, pioneering nighttime free and voluntary community legal services. Colleagues who felt contributing one night a week was pretty good have noted Mr Eames was often there three or four nights a week. He also helped establish the Victorian Aboriginal Legal Service.

His experience-based advice on community legal services to the Commonwealth Government contributed to work that led to committing to the nation-wide Australian Legal Aid Office in 1973 and its establishment on the ground in 1974.

In 1974, Mr Eames went up to Alice Springs as a transient barrister to do appearance work for the Central Australian Aboriginal Legal Aid Service at a session of the Supreme Court sittings in Alice Springs. He intended being there for only a few weeks, but when Peter Faris (then the principal lawyer in the service) fell ill, Mr Eames flew up to take his place for a session of the Supreme Court of the Northern Territory on circuit in Alice Springs.

After his trial work in a manslaughter case (his first), Mr Eames was offered a full-time position, which he took at considerable cost—both personal and professional. Mr Eames had already established a substantial practice at the Victorian Bar, and he and his wife had two young daughters.

His departure from Melbourne for “only a few weeks” to Alice Springs began 16 years of service, largely to the Aboriginal people, away from home. He retained his membership and association with the Victorian Bar during the 16 years he was away.

In his five years in Alice Springs, Mr Eames and his family had to move 16 times. There was considerable hostility to the Aboriginal Legal Aid Service, and the mostly young white barristers from Melbourne and Sydney

2014 President’s Medal recipients Mr Geoffrey Eames AM QC and Ms Raelene Webb QC.

AUG - DEC 2014 23

24 LAW COUNCIL REVIEW

who staffed it. Windows were smashed, abusive phone calls were made, and there were threats of violence.

Mr Eames’ commitment was close and personal. When the Aboriginal client in his first murder trial was banished from his community, Mr Eames took the client and his young family into his own home for the duration of the trial.

In 1975, after a year with the Central Australian Aboriginal Legal Aid Service, Mr Eames accepted the call of the newly established Central Land Council in Alice Springs, becoming the first lawyer to work for the Land Council. He later worked for the North Australian Legal Service, representing Aboriginal organisations in land rights claims.

In 1978, Mr Eames moved to Darwin, joining the tiny Bar with only 5 independent barristers. There he established a general practice, mostly in commercial and criminal law.

He was appointed first Chief Counsel, and then Director, of the Legal Services Commission of South Australia. In 1984 he represented all Aboriginal organisations and interests from South Australia, Western Australia and the Northern Territory before the Maralinga Royal Commission into British Nuclear Tests in Australia.

In 1986, Mr Eames returned to practice at the Victorian Bar, but shortly after took on the time-consuming appointment as Senior Counsel Assisting the Royal Commission into Aboriginal Deaths in Custody. That Commission went from 1988-91, during which time Mr Eames was appointed Queens Counsel in South Australia in 1989 and in Victoria in 1990. He coordinated the work of 150 staff and consultants, oversaw the extensive research program, and produced draft reports for the Commissioners. This included the five-volume Report that examined the causes of the Aboriginal deaths in custody, and the underlying social, historical and racial issues of not only the deaths but also the high rates of Aboriginal people being incarcerated.

Shortly before his appointment to the Victorian Supreme Court, Mr Eames was appointed Counsel Assisting in the South Australian Auditor-General’s Investigation into losses suffered by the State Bank of South Australia. It’s another example of the breadth

and depth of his legal abilities, and the sacrifice involved in devoting so much of his life and professional career to legal aid criminal work.

When he was appointed to the Victorian Supreme Court in 1992, he maintained his commitment and work for Aboriginal people. He was Chairman of the Victorian Judicial Officers Aboriginal Cultural Awareness Committee and Deputy Chairman of the AIJA (Australian Institute of Judicial Administration) Aboriginal Cultural Awareness Committee. And in each case he was an active Chairman and Deputy Chairman, which he demonstrated in his powerful opening addresses at each of the three Judicial Conferences on Aboriginal Cultural Awareness in 1997, 2000 and 2004.

Mr Eames established and chaired the Victorian Supreme Court Indigenous Law Students Mentoring Committee, and worked closely with the Victorian Bar Aboriginal Law Students Mentoring Committee. Those Committees worked for and supported the

establishment of the Indigenous Law Students and Lawyers Association—now called Tarwirri—, which recently hosted the third National Indigenous Legal Conference held in Melbourne.

In 2003, Mr Eames received one of the Victorian Government’s Indigenous Community Justice Awards. And in 2009 he was recognised in the 2009 Queen’s Birthday Honours and made a Member of the Order of Australia “for service to the law and to the judiciary, particularly as an advocate for the advancement of Indigenous Australians in the legal profession.”

In 2010 he was appointmented as Chief Justice of Nauru, where he worked to improve and build the system and administration of justice. Together with Nauruan Supreme Court Registrar and Resident Magistrate Peter Law, he was the driving force in obtaining funding from the New Zealand Government under the Pacific Judicial Development Program for a series of initiatives.

LAW COUNCIL OF AUSTRALIA’S PRESIDENT’S MEDAL AWARD ELIGIBILITY CRITERIA

A person may be nominated for the President’s Award if the following criteria are satisfied:

1. The person is an Australian lawyer.

2. The person is of good standing in the Australian legal profession.

3. The person has brought credit on the legal profession through a personal or professional commitment to:

a. the promotion or defence of the rule of law, or

b. the promotion or defence of the public interest, or

c. the administration of justice within Australia, or

d. the development and improvement of law or the administration of justice throughout Australia, or

e. upholding the honour and the integrity of the Australian legal profession or the Australian judiciary.

4. The person is an outstanding example to the Australian legal profession and to those who might seek to join the ranks of the profession.

AUG - DEC 2014 25

GEOFFREY EAMES AM QCQ: Your professional career has been marked by many great contributions to advancing the rule of law. Which one are you most proud of?

GE: The most productive and exciting period of my career was working in Alice Springs with the Central Australian Aboriginal Legal Service and the Central Land Council. I had sufficient legal experience to make a difference in court proceedings, and good contacts within Gough Whitlam’s Labor Government that I could use to encourage law reform programs that would benefit Aboriginal people.

It was a time of tremendous social change, and I felt like I was a part of history—working closely with wonderful Aboriginal and non-Aboriginal people with similar sympathies who became lifetime friends.

In late 1975 the Aboriginal Council of the Legal Service asked me to be the first employee solicitor with the newly formed Central Land Council. The Councillors saw an opportunity to achieve land rights, and I was actively involved in the campaign that led to the Aboriginal Land Rights (Northern Territory) Act 1976, which was eventually passed by the Fraser Government.

I then appeared as counsel in the first land claim hearings before Justice Toohey. I was solicitor to the Gurindji people, and travelled to Sydney with Vincent Lingiari and Donald Rangiari to negotiate the final arrangements for the title handover at Wattie Creek from the Vestey company. As a result, I was present for the historic handover ceremony in 1975.

Q: Why did you choose to study law?

GE: I attended university in very different circumstances to those confronting undergraduates today. I actually enrolled in Commerce, and while I listed Law as my second choice, it never occurred to me that I might actually consider Law. No-one in my family had attended university, and I didn’t know any lawyers or law students. My only ambition was to have the university experience Melbourne University offered with its active Student Union activities.

However, before I attended my first Commerce lectures I received a letter from the Law School, noting that I’d made Law my second choice and inviting me to enrol in Law. Having already decided Commerce was going to be very dull, I accepted the invitation. No great career planning, and precious little informed thought I’m afraid.

Q: How did you become involved in the establishment of the Fitzroy Legal Service?

GE: I’d been a member of the Human Rights committee of the Australian Labor Party, and together with Jim Kennan I published a pamphlet advocating the adoption of a legal aid program that removed the many injustices that faced people who couldn’t afford legal representation. The legal aid scheme proposals we put forward were later adopted as the policy of the Victorian ALP, then in opposition.

I’m not sure when I first heard of the Fitzroy Free Legal Service, but it immediately captured my attention. I knew many of the lawyers associated with its birth, having worked with them in cases arising out of

opposition to the Vietnam war and anti-apartheid demonstrations. I became one of the first volunteers, and a member of the foundation committee. I liaised with the Victorian Bar on behalf of the FLS to remove impediments preventing barristers working in barrister and solicitor roles.

Q: How did you manage a busy practice at the Victorian Bar and many hours of pro bono service at the CLC?

GE: It was difficult running a practice while being heavily engaged with the FLS, and later the Nunawading Legal Service. We were not only giving free legal advice at the FLS Town Hall offices, but also arranging free court representation in many instances. On occasion, last minute problems meant we had to rush to court.

It soon became clear we had to get full-time workers, and that a broad-based legal aid program was needed. Senator Lionel Murphy, then federal Attorney-General, was a big supporter of the FLS, and established the Australian Legal Aid Office after consulting them. He also provided funding for the first full-time employee solicitor, Julian Gardner.

Q: What did you learn from working in community legal services?

GE: There was a great bond between people who worked in Community Legal Services. To work in a CLC required enthusiasm, resilience, a willingness to cope with chaos and tolerate appalling facilities, and a sense of humour.

If someone applied for a job as a lawyer in Central Australia, the first question was “Have they worked at Fitzroy or at one of the other CLCs?”

Q&A WITH 2014

PRESIDENT’S MEDAL

WINNERS

Mr Geoffrey Eames AM QC with Mr Michael Colbran QC, President, Law Council of Australia

26 LAW COUNCIL REVIEW

I first went to Alice Springs at the request of Peter Faris, one of the FLS’ founders. Peter became ill, and was unable to appear in the Supreme Court circuit where every defendant was Aboriginal. So he asked me to conduct the circuit. I joined my long-time friend David Parsons, now Judge Parsons, who was also an FLS original and had been working with Peter at Central Australian Aboriginal Legal Aid Service (CAALAS).

What was meant to be a one-month exercise led to me joining CAALAS full time, an experience my wife and daughters agree was wonderful. From that time CAALAS had many volunteer barristers and solicitors, usually from Victoria, and they all had a CLC background. If you could cope with FLS, you could cope with CAALAS and would enjoy the opportunity.

Q: What motivated you to become an advocate of indigenous rights and interests?

GE: As a barrister I’d conducted some trials on behalf of Aboriginal defendants. It was all too obvious that discrimination and lack of equal opportunity played a key role in bringing Aboriginal people before the courts in disproportionate numbers.

When I had the opportunity to work in Alice Springs, I enthusiastically supported the principle that I was an employee and under the direction of the Aboriginal councillors. Initially it caused some difficulties with professional bodies, but to me it was a central principle. The close support and friendships forged with Aboriginal employees and councillors made all the difference. They worked to remove my ignorance of Aboriginal society, and travelling with Aboriginal people through their own country was one of joy, and the best learning experience I could have had.

Q: In your personal and professional opinion, has the plight for Indigenous Australians improved over the years or should more be done? If more could be done, what actions need to be taken?

GE: There have been successes in Aboriginal Affairs, and some wonderful programs were identified in the report of the Royal

Commission into Aboriginal Deaths in Custody. But much more needs to be done, and the Report explained how denial or disadvantage in areas such as education, employment, and health play such a vital role in producing disproportionate rates of arrest and imprisonment and, in consequence, deaths in custody.

I supported the sense of urgency and commitment of funds that accompanied the Northern Territory intervention. Sadly, it was imposed on Aboriginal people and did not properly consult them. The fundamental pre-requisite of consultation was stressed by both the Royal Commission and the authors of the Little Children are Sacred Report, which the Federal Government cited as justification for the Intervention. It was a lost opportunity to galvanise support for programs.

Q: Why did you decide to take up the appointment of Chief Justice of Nauru?

GE: I saw working in Nauru as a challenge. It has an extremely complicated legal system—applying legislation not only made by the Nauru Parliaments but also from England, Queensland, Australia, Papua New Guinea, as well as applying customary law.

And it was indeed challenging. The courtroom and judicial staff offices were cramped, and the library resources and equipment were inadequate. And the complexity of the law posed great problems for the judges.

It also posed great problems for the legal practitioners, who were mostly known as “Pleaders”. They didn’t hold law degrees, and while they enthusiastically conducted civil, criminal, land, family law and constitutional

law cases, their lack of training and resources posed great burdens on them.

With the support and initiative of the Resident Magistrate, Peter Law, we conducted advocacy training courses and many other programs designed to support the local profession. We had wonderful pro bono support from Australian barristers and solicitors, as well as great support from the Chief Judge of the County Court who gave associates leave to serve as associates during circuits of the Supreme Court in Nauru.

I also had the service of brilliant young honours students from LA Trobe University, who conducted research for me, which I then provided to practitioners to help them prepare their cases. I’m very sorry to say those programs have come to an end.

Q: Since the unfortunate circumstances surrounding your resignation in March 2014, how can Australia and Australians help enhance the rule of law in Nauru and with our other neighbours?

GE: Australians and professional associations must keep close watch on abuses of the rule of law. As in my own case the response of such bodies, and the possibility of such a response in instances of abuse of the rule of law, is vital if the abuse is to be curtailed.

Q: Do you have any regrets in your professional career?

GE: No regrets. I was incredibly lucky to have so many different and unusual opportunities cross my path. I’m so grateful I could put my degree to good use, and play a small part in some historic moments.

Q: How has the legal profession changed over the years? What is the greatest strength of the modern profession, and what are its greatest weaknesses?

GE: The profession has changed a lot. In my day there was only one Victorian university graduating lawyers. But every graduate could obtain articles of clerkship. And a career at the Bar was relatively inexpensive, so people without money could obtain chambers at very cheap rates subsidised by the Bar. Young barristers could take briefs from their first day (not a really good idea, although we didn’t

Take every opportunity that comes your way. It may be a bad career move, but if you’re thinking seriously about it, then it has something going for it. ”

“

AUG - DEC 2014 27

see any problem at the time), and there were many Magistrates Court briefs to be had. We expected to be in court every day, or most days. We gained experience in leading witnesses, cross-examining, etc. in the Magistrates’ Courts, and by watching more experienced opponents.

But there’s always been a strong ethic within the Australian legal professions to help worthy causes and fight hard for the underdog. That hasn’t changed, but it’s very hard for today’s young practitioners to get a start in their career. I was fortunate to have wise people spend time encouraging me and offering advice. I do that now whenever the opportunity arises, because I will always be in debt to those who helped me.

Q: What advice would you offer other aspiring or established bar members in today’s competitive market?

GE: First, take every opportunity that comes your way. It may be a bad career move, but if you’re thinking seriously about it, then it has something going for it. Even if it proves to be a mistake, trying something different is rarely fatal.

Secondly, watch and learn. Never pass up an opportunity to drop in to court and watch proceedings. Ask questions at the break. It’s amazing how much you can pick up simply by watching good and bad advocates go about their business.

Hopefully you’ll learn to spot the difference.

RAELENE WEBB QCQ: Your professional career has been marked by many great contributions to advancing the rule of law. Which achievement are you most proud of?

RW: It would have to be my speaking appearances before the High Court. Facing seven judges, all with blistering intellect, takes courage, and I sincerely hope my advocacy experience paves the way for many other women barristers to be given the same opportunity. Better representation of women at the highest levels of advocacy is essential to advancing the rule of law. Being made silk was the pinnacle of my career.

 Q: Have you ever found career progression difficult as a woman?

RW: Up to a certain point in my career I never felt ‘held back’ because I was a woman. But it certainly made my achievements more satisfying. I just set my mind to it and I did it.

There may be barriers at the highest level, but because I’ve achieved far more in the legal arena than I initially expected, and knowing there’s so much more I can do, I see barriers as inconveniences I need to work around. I choose to treat career profession difficulties as challenges—a personal attitude that may not work for others.

One reason women may not progress as quickly is they might question themselves and their ability more, so they tend not to promote themselves as much. Self-promotion isn’t something that comes naturally me. At a crucial stage of my career I received a piece of advice by a very good mentor—you have to self-promote, and essentially ‘sound your own trumpet’.

I found I could only write about my achievements if I framed them in the third person. It was much easier to write about “Raelene”.

Q: Why did you choose to study law?

RW: I was a country kid. I wanted to study law when I left high school, but the small town career advisor said I couldn’t because I hadn’t done matriculation Latin as it wasn’t available at my school. So, because most women didn’t do science, I chose to study physics and obtained a B Sc(Hons).

I was teaching in the Northern Territory and wanted a little more intellectual stimulation, so I started a law degree externally from Queensland University. Someone said I wouldn’t be able to get in, and that was it—just watch me! I studied part-time, and completed it in four years.

At the time I was heading up a centre for management training and earning quite well. Then an opportunity came along to be an associate to the Hon. Sir William Kearney. I remember telling my boys about it, and that it meant we wouldn’t have so much money for a while. My eldest son put his arm around my youngest son and said, “It’s alright. We can live on bread and dripping”. I’m pleased to say we ate better than that after I made the change to law.

Q: How did you become involved in the native title?

RW: After Mabo, native title came on the scene. I was working as crown counsel, mostly on administrative, constitutional and public law matters. I started working on native title claims when I was junior counsel, and have basically been involved in native title claims ever since.

Ms Raelene Webb QC with Mr Michael Colbran QC, President, Law Council of Australia

28 LAW COUNCIL REVIEW

I started leading the claims in the Northern Territory, and was briefed in many claims interstate. Native title is very time-consuming, so it became a major part of my practice. I’ve appeared in many native title claims at first instance and on appeal, including most of the significant native title cases in the High Court.

I got to the point where it was time to make a change, and I wanted to make a different contribution. When the position came up at the Tribunal I asked a few people about it. They said it would be a good idea to put an application in, so I did.

Q: What motivated you to become an advocate of indigenous rights and interests?

RW: I grew up with Indigenous people, and they’re my friends. Even when acting for the State of the Commonwealth in native title claims I’d occasionally remind them of that—being on the ‘other side’, so to speak. “But you’re just doing your job, Raelene,” they’d say. I wish everyone had that generosity of attitude.

Whether I was acting for respondents or claimants, my approach was always to get the best evidence before the court, and then work with that to get the legal outcome my client desired.

Q: In your personal and professional opinion, has the plight for Indigenous Australians improved over the years or should more be done? If more could be done, what actions need to be taken?

RW: A great deal more can be done. My personal view is we have to stop telling Indigenous people how to live their lives—stop making them live like us. It’s a situation where we need to give Aboriginal people the tools to help them find the solutions themselves.

I remember going out to a Northern Territory community I’d been to many times with a young woman from Canberra, and the advice the women gave the visitor: “If you’ve come out to help us, you can leave. If you’ve come to work with us, you are welcome.”

We need to provide the tools to indigenous people so they can make their own decisions and plans, and put them into practice. People need to have ownership of the solutions before they’ll be effective.

Q: As one of the few women to have a regular speaking part before the High Court, how do you think women could be represented more in senior positions at the Bar?

RW: I had a very significant High Court practice for a woman. It took courage, and I had to believe in myself. But I had the advantage of a very broad experience before I came to law. For women to be represented in more senior positions, my advice reflects my own experience. Believe in yourself, be courageous, and be bold.

Q: What advice would you give junior barristers wishing to develop professionally while juggling family responsibilities?

RW: You need energy, and lots of it! When I was studying, and early in my legal career, I had two young boys while working during the day and lecturing at night.

Determination is also a must, and being stubborn is a bonus. I continue to mentor young women, and it’s one of the reasons I set up Magayamirr chambers in Darwin—to provide practice opportunities for women

who needed flexibility. I was disappointed the original concept of Magayamirr Chambers wasn’t continued when I was appointed to the Tribunal.

Q: Do you have any regrets in your professional career?

RW: I don’t believe in regrets. I could say not coming to the law earlier, but I think coming to the legal career later in life with a broad background has actually been one of my strengths.

Q: Do you have any advice for younger legal professionals?

RW: Be passionate about the law. If you’re not, don’t do it because that lack of passion will really show. To be a good advocate you need to be able to distinguish between being passionate about the law, and being passionate about your client’s cause.

Respect for the rule of law will often require you to represent people whose values you don’t share. Professional ethics and personal integrity—it’s the elephant in the room. Being passionate about the law will help you deal with this potential collision and be true to the rule of law, without losing sight of what you personally stand for.

Q: How has the legal profession changed over the years? What is the greatest strength of the modern profession, and what are its greatest weaknesses?

RW: One of the strengths of the modern legal profession is the ability to develop a national practice, and will continue to be in the future. But the legal profession needs to be wary of any increasing move towards self-interest, rather than working for the rule of law. That is, being more concerned about making money and personal progression than the practice of the law itself.

Be passionate about the law. If you’re not, don’t do it because that lack of passion will really show. To be a good advocate you need to be able to distinguish between being passionate about the law, and being passionate about your client’s cause.”

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AUG - DEC 2014 29

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T he current terms of reference for the Constitutional Law Committee envisage three main roles, including:

• the provision of legal analysis and opinions, where the Committee will assist the Law Council to understand the legal and other ramifications of Constitutional law cases determined by the High Court and the Federal Court;

• assistance for the Law Council with policy matters and policy development where issues raising Constitutional law or related High Court and Federal Court litigation are involved; and

NEW COMMITTEE ESTABLISHED FOR CONSTITUTIONAL LAW ISSUES

• educating the legal profession and wider community by running Constitutional law conference and seminars.

The membership of the Committee includes eminent Constitutional law experts from private practice and academia from a number of state and territories.

The work of the Constitutional Law Committee is intended to be a platform for discussing and influencing responses to significant Constitutional issues at a national level such as Constitutional recognition of Aboriginal and Torres Strait Islander peoples and intergovernmental financial relations which are discussed in more detail below.

For more information about the Constitutional Law Committee and its work, please contact the Section Administrator at fedls@lawcouncil.asn.au.

THE LAW COUNCIL OF AUSTRALIA HAS ESTABLISHED A CONSTITUTIONAL LAW COMMITTEE WITHIN THE FEDERAL LITIGATION AND DISPUTE RESOLUTION SECTION, CHAIRED BY BRETT WALKER SC, TO FOCUS ON CONSTITUTIONAL LAW ISSUES AT A NATIONAL LEVEL.

30 LAW COUNCIL REVIEW

AUG - DEC 2014 31

by Greg McIntyre SC

The High Court’s decision in Williams v Commonwealth of Australia [2014] HCA 23 (Williams No. 2) delivered on 19 June 2014 confronted issues relating to the Commonwealth government’s capacity to fund its chosen programmes of wide ranging significance.

In Williams (No. 2) the programme in issue was chaplaincy funding to school communities, but the principle considered was the limits which apply under the Constitution (Cth) to the purposes to which the Commonwealth may apply funds, whether there is a necessity for legislative authority to spend funds for a particular purpose, whether that authority may derive from specific legislation or general legislation, including Appropriation or Supply Acts and what the limits are of executive authority to expend funds.

Williams (No. 2)

The Court in Williams (No. 2) was considering the effect of the Financial Management and Accountability Act 1997 (Cth) (FMA Act), s 32B. It provided that –

“(1) If: (a) apart from this subsection, the

Commonwealth does not have power to make, vary or administer:

(i) an arrangement under which public money is, or may become, payable by the Commonwealth; or

(ii) a grant of financial assistance to a State or Territory; or

(iii) a grant of financial assistance to a person other than a State or Territory; and

(b) the arrangement or grant, as the case may be:

(i) is specified in the regulations; or (ii) is included in a class of

arrangements or grants, as the case may be, specified in the regulations; or

(iii) is for the purposes of a program specified in the regulations; the Commonwealth has power to make, vary or administer the arrangement or grant, as the

case may be, subject to compliance with this Act, the regulations, Finance Minister’s Orders, Special Instructions and any other law.”

The Court concluded that the provision was valid, that it provided power to make commitments to spend public money,1 but that it did not have an operation where the Parliament does not have constitutional power to authorise the making, varying or administration of arrangements or grants.2

The Court, in relation to the facts in that case, was not able to conclude that the Financial Management and Accountability Regulations 1997 (Cth) (FMA Regulations), which sought to authorise the making of agreements and payments for chaplaincy services to “school communities to support the wellbeing of their students” was within any relevant constitutional power of the Commonwealth.

Possible heads of legislative power

Benefit of students

The Court considered the constitutional power under s 51(xxiiiA) to make laws relating to benefits to students and concluded that it did not authorise the expenditure.3

Trading and financial corporations

The Court considered but did not answer the question in relation to whether the constitutional power under s 51(xx) to make laws relating to trading and financial corporations would authorise the expenditure.4

Appropriation and Supply Acts

The Court also considered but did not answer the question whether Appropriation and Supply Acts provide statutory authority to make a funding agreement or a payment, but noted that the same considerations would apply as would apply to the FMA Act and FMA Regulations, 5i.e., did the Parliament have constitutional power to make the provisions authorising expenditure.

Incidental power

Consistently with that, the Court concluded that the power under s 51(xxxix) of the Constitution (Cth) to make laws in relation to matters incidental to the execution of a power vested by the Constitution in the executive did not give the executive the

power to expend money appropriated in accordance with ss 81 and 83 of the Constitution for any purpose.6

Pape case

The High Court’s decision in Williams (No 2) was identified by the Court7 as being founded on the decisions in Pape v Federal Commissioner of Taxation8 and Williams (No 1).9

In the Pape case the Commonwealth Parliament enacted the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) which provided for payments ranging from $900 to $250 for taxpayers earning between nil and $100,000 for the year ended 30 June 2008. The stated purpose of the legislation was to “immediately support jobs and strengthen the Australian economy during a severe global recession.” The High Court found that the legislation was valid because it gave effect to an exercise of executive power within the limits of the Constitutional power of the executive.

French CJ, for example, said:10

I base my opinion as to validity upon the following propositions:

1. The executive power of the Commonwealth conferred by s 61 of the Constitution extends to the power to expend public moneys for the purpose of avoiding or mitigating the large scale adverse effects of the circumstances affecting the national economy disclosed on the facts of this case, and which expenditure is on a scale and within a time-frame peculiarly within the capacity of the national government.

2. The executive power so to expend public moneys is conditioned, by ss 81 and 83 of the Constitution, upon appropriation of the requisite moneys by an Act of the Parliament for that purpose.

3. The appropriation necessary to authorise the proposed expenditure in this case was effected by s 16 of the Taxation Administration Act 1953 (Cth) (“the Taxation Administration Act”) read with s 3 of the Tax Bonus Act.

4. The legislative power to enact statutory provisions, beyond appropriation, to support the exercise of the executive power in this case is found in the

Chaplains to Climate Change: Constitutional implications of Williams

32 LAW COUNCIL REVIEW

incidental power conferred by s 51(xxxix) of the Constitution.

5. The provisions of ss 81 and 83 do not confer a substantive “spending power” upon the Commonwealth Parliament. They provide for parliamentary control of public moneys and their expenditure. The relevant power to expend public moneys, being limited by s 81 to expenditure for “the purposes of the Commonwealth”, must be found elsewhere in the Constitution or statutes made under it.

6. It is not necessary in light of the preceding to consider the specific heads of power otherwise relied upon by the Commonwealth to support the Tax Bonus Act.

The High Court in Williams (No 2)11 said:

In Pape, all members of the Court concluded that ss 81 and 83 of the Constitution do not confer a substantive spending power. All members of the Court agreed that the power to spend appropriated moneys must be found elsewhere in the Constitution or in statutes made under it....... It is those conclusions which underpinned the decision in Williams (No 1).

The High Court in Williams (No 2)12 notes that both Pape and Williams (No 1) deny that the executive power of the Commonwealth extends to any and every form of expenditure of public moneys and the making of any agreement providing for the expenditure of those moneys.13

In the unusual circumstances of the Pape case the majority of the Court held14 that the determination of the Executive Government that there was a need for an immediate fiscal stimulus to the national economy enlivened legislative power under s 51(xxxix) to enact the impugned law as a law incidental to that exercise of the executive power.15

Williams (No 1)

In Williams (No 1)16what was in issue was the validity of a contract made by the Commonwealth with a private service provider, and expenditure under that contract, for the delivery of “chaplaincy services” into schools operated by the Queensland State Government, and whether executive power under s 61 of the Constitution (Cth), said by that section to

extend “to the execution and maintenance of” the Constitution and the laws of the Commonwealth, was sufficient to authorise the making of contracts and spending public money. The Court held that it was not.

French CJ in Williams (No 1)17said

There are undoubtedly significant fields of executive action which do not require express statutory authority. .....the executive power of the Commonwealth extends to the doing of all things which are necessary or reasonably incidental to the execution and maintenance of a valid law of the Commonwealth once that law has taken effect. That field of action does not require express statutory authority, nor is it necessary to find an implied power deriving from the statute. The necessary power can be found in the words “execution and maintenance ... of the laws of the Commonwealth” appearing in s 61 of the Constitution. The field of non-statutory executive action also extends to the administration of departments of State under s 64 of the Constitution and those activities which may properly be characterised as deriving from the character and status of the Commonwealth as a national government.

French CJ18 held that:

Neither the DHF Agreement nor the expenditure made under it was done in the administration of a department of State in the sense used in s 64 of the Constitution. Neither constituted an exercise of the prerogative aspect of the executive power. Neither involved the exercise of a statutory power, nor executive action to give effect to a statute enacted for the purpose of providing chaplaincy or like services to State schools. Whatever the scope of that aspect of the executive power which derives from the character and status of the Commonwealth as a national government, it did not authorise the contract and the expenditure under it in this case. The field of activity in which the DHF Agreement and the expenditure was said, by the Commonwealth, to lie within areas of legislative competency of the Commonwealth Parliament under either s 51(xxiiiA) or s 51(xx) of the Constitution. Assuming it to be the case that the DHF Agreement and expenditure under it could be referred to one or other of those fields of legislative power, they are fields in which

the Commonwealth and the States have concurrent competencies subject to the paramountcy of Commonwealth laws effected by s 109 of the Constitution. The character of the Commonwealth Government as a national government does not entitle it, as a general proposition, to enter into any such field of activity by executive action alone. Such an extension of Commonwealth executive powers would, in a practical sense, as Deakin predicted, correspondingly reduce those of the States and compromise what Inglis Clark described as the essential and distinctive feature of “a truly federal government”.

Gummow and Bell JJ in Williams (No 1)19 noted that

to conclude that the Constitution requires that the Executive never spend money lawfully available for expenditure without legislative authority to do so is to decide a large and complex issue. It is better that it not be decided until it is necessary to do so.

Executive v legislative power

French CJ in Williams (No 1) was very cautious about, if not dismissive of, equating the ambit of executive power with the heads of legislative power set out in the Constitution. He said:

The subject matters of legislative power are specified for that purpose, not to give content to the executive power...... To say positively and without qualification that the executive power in its various aspects extends, absent statutory support, to the “subject matters” of the legislative powers of the Commonwealth is to make a statement the content of which is not easy to divine. Neither the drafting history of s 61 of the Constitution nor its judicial exegesis since Federation overcomes that difficulty.20

French CJ in Williams (No 1)21 referred to R v Duncan; Ex parte Australian Iron and Steel Pty Ltd22, where Mason J said that the executive power of the Commonwealth was not “limited to heads of power which correspond with enumerated heads of Commonwealth legislative power under the Constitution”23, adding24:

“Of necessity the scope of the power is appropriate to that of a central executive government in a federation in which there is a distribution of legislative powers

Chaplains to Climate Change: Constitutional implications of Williams (continued)

AUG - DEC 2014 33

between the Parliaments of the constituent elements in the federation.”

French CJ concluded that:

These remarks are consistent with a concept of executive power in which the character and status of the Commonwealth as a national government is an aspect of the power and a feature informing all of its aspects, including the prerogatives appropriate to the Commonwealth, the common law capacities, powers conferred by statutes, and the powers necessary to give effect to statutes. His Honour’s conception of executive power was consistent with that most recently discussed by this Court in Pape v Federal Commissioner of Taxation25. It does not afford support for the broad proposition that the Executive Government of the Commonwealth can do anything about which the Parliament of the Commonwealth could make a law.

Gummow, Crennan and Bell JJ in Pape note that Brennan J in Davis v The Commonwealth26 said:

“It does not follow that the Executive Government of the Commonwealth is the arbiter of its own power or that the executive power of the Commonwealth extends to whatever activity or enterprise the Executive Government deems to be in the national interest. But s 61 does confer on the Executive Government power ‘to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation’, to repeat what Mason J said in the AAP Case27. In my respectful opinion, that is an appropriate formulation of a criterion to determine whether an enterprise or activity lies within the executive power of the Commonwealth.”

They also refer with approval to the statement in Davis v The Commonwealth28of Mason CJ, Deane and Gaudron JJ that:

“[T]he existence of Commonwealth executive power in areas beyond the express grants of legislative power will ordinarily be clearest where Commonwealth executive or legislative action involves no real competition with State executive or legislative competence.”

Emissions Reduction Fund

An instance where this issue may be of some significance in the near future is in relation to the Commonwealth’s proposal to address climate change by creating an Emissions Reduction Fund.

The money that the government intends to allocate to the Emissions Reduction Fund has already been allocated in the Appropriations Bill, and the Parliament is currently debating the Carbon Farming Initiative Amendment Bill which is intended to authorise expenditure of the ERD. It is by no means clear that the Parliament, as presently constituted will pass that enabling legislation. Will it still be within the authority of the Clean Energy Regulators to contract with proponents to deliver carbon abatement? In other words, can the Emissions Reduction Fund continue without the legislation simply by appropriating money to the Clean Energy Regulator? If so, is there executive power that enables them to do it?

The High Court’s decision in Williams v (No 2) did not definitively rule on those questions. There is dicta in Williams (No 2), Williams (No 1), Pape, Duncan and Davis, however, which leave open a conclusion as to whether a fund such as the Emissions Reduction Fund (ERF) could be expended without specific enabling legislation.

In the case of expenditure of the Emissions Reduction Fund, it is to be noted that “the primary objective of the Emissions Reduction Fund is to help Australia meet its international obligations 29under the United Nations Framework Convention on Climate Change (UNFCCC)30 and the Kyoto Protocol, to reduce emissions of greenhouse gases and meet its emissions reduction target of five per cent below 2000 levels by 2020.”31

Hayne and Keifel JJ in Pape32note that:

As was pointed out in Victoria v The Commonwealth (Industrial Relations Act Case)33 legislation may be supported under the external affairs power if the legislation gives effect to some international obligation. But as also pointed out in that case, what is said to be the legislative implementation of a treaty may present some further questions for consideration, including whether the treaty in question sufficiently identified the means chosen in legislation as one of the ways in which parties to the treaty are to pursue some commonly held aspiration expressed in the treaty.

The UNFCCC provides that all parties will –

Formulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures to mitigate climate change by addressing anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, and measures to facilitate adequate adaptation to climate change.34

The Kyoto Protocol provides at Article 3 that –

The Parties included in Annex I35 shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts, calculated pursuant to their quantified emission limitation and reduction commitments inscribed in Annex B and in accordance with the provisions of this Article, with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.

2. Each Party included in Annex I shall, by 2005, have made demonstrable progress in achieving its commitments under this Protocol.

3. The net changes in greenhouse gas emissions by sources and removals by sinks resulting from direct human-induced land-use change and forestry activities, limited to afforestation, reforestation and deforestation since 1990, measured as verifiable changes in carbon stocks in each commitment period, shall be used to meet the commitments under this Article of each Party included in Annex I.

Article 6 provides that –

1. For the purpose of meeting its commitments under Article 3, any Party included in

Annex I may transfer to, or acquire from, any other such Party emission reduction units resulting from projects aimed at reducing anthropogenic emissions by sources or enhancing anthropogenic removals by sinks of greenhouse gases in any sector of the economy, provided that:

(a) Any such project has the approval of the Parties involved;

(b) Any such project provides a reduction in

34 LAW COUNCIL REVIEW

emissions by sources, or an enhancement of removals by sinks, that is additional to any that would otherwise occur;

...

(d) The acquisition of emission reduction units shall be supplemental to domestic

actions for the purposes of meeting commitments under Article 3.

3. A Party included in Annex I may authorize legal entities to participate, under its responsibility, in actions leading to the generation, transfer or acquisition under this Article of emission reduction units.

The treaty provisions do not identify any more specific means for their implementation than is set out above, and so it could be argued that the UNFCCC and Kyoto Protocol do not sufficiently identify an ERF as a means for implementation to support it as an implementation of the treaty.

That argument aside, the establishment and expenditure of the ERF could be justified as an exercise of executive power within the Commonwealth’s international obligations under the UNFCC and Kyoto Protocol, and so, comprise an executive implementation of Australia’s international obligations, despite a lack of legislation enacted to implement the UNFCC, pursuant to the external affairs power under the Constitution (Cth) s 51(xxix). The establishment and expenditure of the ERF could be argued to be –

(a) an executive action not competing with State executive or legislative competence, because of the international or ‘external affairs’ element of the action; and

(b) ‘peculiarly adapted to the government of a nation’;

(c) the exercise of ‘a power appropriate to that of a central executive government in a federation’; or

(d) an exercise of the prerogatives appropriate to the Commonwealth.

In those circumstances the expenditure of the ERF would be distinguishable from the circumstances in Williams (No 2) and may be capable of being the subject of a Regulation

promulgated under the FMA Regulations and authorised under the FMA Act s 32B, subject, of course, to the possibility of Parliamentary disallowance.

Notes

1. At [35].

2. At [36].

3. At [38]-[48].

4. At [49]-[56].

5. At [55].

6. At [86].

7. At [14].

8. [2009] HCA 23.

9. Williams v Commonwealth of Australia [2012] HCA 23.

10. Pape at [8].

11. At [20]; See Pape [2009] HCA 23; (2009) 238 CLR 1 at [81]-[82], 55 [111], 63-64 [133]-[134], per French CJ, 73 [178], 82-83 [210], 89-92 [232]-[243] per Gummow, Crennan and Bell JJ, 113 [320] per Hayne and Kiefel JJ, 212-213 [606]-[607] per Heydon J.

12. At [82].

13. See Pape per French CJ at [81] and [82]

14. [2009] HCA 23; (2009) 238 CLR 1 at 23 [8], 63-64 [133]-[134] per French CJ, 89-92 [232]-[243] per Gummow, Crennan and Bell JJ.

15. Williams (No 2) at [20].

16. Williams v Commonwealth of Australia (2012) 248 CLR 156; [2012] HCA 23.

17. At [34].

18. At [83].

19. AT [288]

20. At [27].

21. At [30].

22. [1983] HCA 29; (1983) 158 CLR 535.

23. [1983] HCA 29; (1983) 158 CLR 535 at 560.

24. [1983] HCA 29; (1983) 158 CLR 535 at 560.

25. [2009] HCA 23; (2009) 238 CLR 1 at 62-63 [131]- [132] per French CJ, 90-91 [239] per Gummow, Crennan and Bell JJ.

26. [1988] HCA 63; (1988) 166 CLR 79 at 111.

27. [1975] HCA 52; (1975) 134 CLR 338 at 397.

28. [1988] HCA 63; (1988) 166 CLR 79 at 93-94.

29. At [228].

30. The UNFCCC was signed by Australia on 4 June 1992, ratified by Australia on 30 December 1992, entered into force on 24 March 1994 and currently has 196 parties.

31. Explanatory Memorandum, Carbon Farming Initiative Amendment Bill 2014, p 5.

32. At [378].

33. (1996) 187 CLR 416 at 486-487; [1996] HCA 56.

34. Article 4.1(b).

35. Which includes Australia.

Chaplains to Climate Change: Constitutional implications of Williams (continued)

AUG - DEC 2014 35

Registrations are open for the

Mahla Pearlman ORATION 2015 and

2015 FUTURE OF ENVIRONMENTAL LAW Symposium

2015 FUTURE OF ENVIRONMENTAL LAW SYMPOSIUMThe Law Council’s biennial Future of Environmental Law Symposium focuses on topical issues in environmental law and honours a leading environmental lawyer.

The Symposium on 6 March 2015 will honour the contribution of Dr Gerry Bates to environmental law.

The 2015 Symposium will also focus on the new environmental federalism under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and the issues that raises for environmental lawyers.

A keynote speaker is Dr Allan Hawke AC, who led the independent review of the EPBC Act completed in 2009.

The Symposium will be held at the Langham Hotel in Sydney’s historic Rocks area.

The prestigious annual

MAHLA PEARLMAN ORATION will be delivered at the Federal Court in Sydney on 5 March 2015 by

Professor Jan McDonald, Professor and Associate Dean of Research in

the School of Law at the University of Tasmania. The Oration title is “Is

Resilience the new ESD?”

The Oration will be delivered on the eve of the

2015 Future of Environmental Law Symposium, also in Sydney.

Professor McDonald specialises in environmental law, with particular expertise in the legal and policy dimensions of climate change adaptation, including urban planning and coastal management, liability and insurance issues.

Prior to taking up her current position at the University of Tasmania in 2011, Jan held professorial positions at Griffith University School of Law and School of Environment. She was Director of Griffith’s Climate Change Response Program and led Griffith University’s successful bid to host the National Climate Change Adaptation Research Facility. Jan has led or been involved in numerous multidisciplinary research projects, including the CSIRO Collaboration Cluster project “South East Queensland Climate Adaptation Research Initiative (SEQ-CARI)” and a major national review of planning frameworks for adaptation. Jan teaches a range of environmental and climate law subjects and consults to local and state government. She was a Member of Tasmania’s Climate Action Council until its abolition in 2014, is a member of the Australian Panel of Experts on Environmental Law convened by the Places You Love Alliance, and is currently President of the National Environmental Law Association.

The 2014 Mahla Pearlman Oration was delivered by Adjunct Professor Rob Fowler, School of Law, University of South Australia. A copy of Professor Fowler’s Oration can be accessed here: www.lawcouncil.asn.au/LPS/images/pdfs/mahlapearlmanao/2014_Oration.pdf

REGISTRATIONS FOR THE ORATION AND / OR THE SYMPOSIUM ARE NOW OPEN ON THE LAW COUNCIL’S WEBSITE. PLEASE CLICK HERE TO REGISTER.

Thursday 5 March

Friday 6 March

36 LAW COUNCIL REVIEW

PROFILE

FAREWELLED BUT NOT FORGOTTEN

THE “WORKHORSE”Mr Pincus QC (pictured left) was the President of the Law Council in 1984 after a long and distinguished career in the legal profession, including as President of the Queensland Bar Association (1981-1984), during which time the Bar Practice Centre was established.

Mr Pincus QC resigned from his post on the Law Council Executive as immediate past president in March 1985 after being appointed as a Federal Court judge.

Six years later, Mr Pincus QC was appointed as Justice of the Supreme Court of Queensland and one of the founding judges of the Queensland Court of Appeals. He also served on the Administrative Review Tribunal, Litigation Reform Commission, the Queensland Crime Commission, the Crime and Misconduct Commission and as Royal Commissioner into the Fuel Subsidy Scheme.

Former Justice of the Supreme Court of Queensland the Hon. James Thomas AM described Mr Pincus QC as a “real workhorse”

In October 2014, the Law Council bid farewell to two prominent figures in Australian legal history – the Hon. Cecil William Pincus QC who died Friday, 17 October 2014 and former Chief Justice of Western Australia the Hon. David Kingsley Malcolm AC CitWA KCSJ QC, who passed away on 20 October 2014.

“The hallmarks of his work have been the sheer intellectual superiority, hard work, acute perception and an outstanding honesty of purpose.”

AUG - DEC 2014 37

in a tribute in the Queensland Bar News following his retirement from judicial office on 3 March 2001.

“The hallmarks of his work have been the sheer intellectual superiority, hard work, acute perception and an outstanding honesty of purpose,” said the Hon. Thomas AM.

Former Chief Justice of Australia, Sir Francis Gerard Brennan AC KBE QC, also honoured Mr Pincus upon his resignation by saying:

“From his earliest days at the Bar, C.W (Bill) Pincus was noted for the rigour of his intellect and the vigour of his speech. For a leader, he was an ideal junior – knowledgeable and industrious, always questioning, never supinely accepting an argument and uncompromising in his professional standards. A powerful advocate, his arguments were marked by tight and logical reasoning. He ha[d] a wonderful sense of humour, garnished by a touch of irony, and interests wider than most barristers…He expected more of himself than ever expected of others. He was never a fragile flower, but always a stimulating and delightful companion.”1

The Law Council extends its sincere condolences to Mr Pincus QC’s family.

1. “A True Friend to the Bar,” Queensland Bar News August 2001

THE “TRUE LEADER”The revered Mr Malcolm AC QC (pictured above) served 18 dedicated years as Chief Justice of Western Australia from 1988 to 2006. He was also appointed Lieutenant-Governor of Western Australia in 1990 and served as an expatriate justice of the Supreme Court in Fiji.

The former President of the Western Australian Bar Association was also the founding Chair of the Law Council’s Federal Litigation Section and Chair of LAWASIA’s Judicial Section from 1992-2004.

After retiring from the bench in 2006, the Rhodes Scholar became Professor of Law at the University of Notre Dame.

Tributes flooded in for Mr Malcolm AC QC, including from current Western Australian Chief Justice the Hon. Wayne Martin AC, who also served as Law Council Director in 2006.

“Once in a generation you get an individual of David Malcom’s calibre,” Chief Justice Martin AC told Perth Now.

“He was a true leader, not only here in Western Australia but throughout the region in his role with LAWASIA. He brought innovation and fresh ideas to our Court, understanding the need to keep up with the changes in technology to improve the Court’s efficiency.”

The Law Council passes on its condolences to Mr Malcolm AC QC’s wife Kaaren, daughter Manisha and his family.

He brought innovation and fresh

ideas to our Court, understanding the

need to keep up with the changes

in technology to improve the Court’s

efficiency.”

“

PROFILE

What is uniform law and why do you think is it important for the legal profession in Australia to be united in such a way?

The Legal Profession Uniform Law sets out regulatory arrangements for the legal profession in future in New South Wales and Victoria. This includes arrangements for admission, legal practice, costs, complaints and professional discipline. By definition the overarching framework for these matters will be the same in both participating jurisdictions, currently New South Wales and Victoria.

That fact of itself is a significant advance for lawyers, clients and the community.

The Uniform Law is expected to commence operation in New South Wales and Victoria in mid-2015 but is designed so that it can be applied by any Australian State or Territory that choses to do so.

What a great thing it will be that lawyers in the two largest Australian states will be operating under the same basic regulatory framework. The wider community having a common understanding about what to expect when they use a lawyer will also be a good thing.

38 LAW COUNCIL REVIEW

Mr Dale Boucher, Commissioner for Uniform Legal Services Regulation and Chief Executive Officer of the Legal Services Council

The inaugural Commissioner for Uniform Legal Services Regulation and Chief Executive Officer of the Legal Services Council, Mr Dale Boucher, comes to his new role with more than four decades in the legal profession. The former Australian Government Solicitor spoke to Law Council Review about the challenges and opportunities facing the transition to Uniform Law.

AUG - DEC 2014 39

The Uniform Law is based on work undertaken by the Council of Australian Governments from 2009 and 2011 with the aim of delivering harmonised regulation of the legal profession across all States and Territories. It builds on work that, in one way or another, has been going on for some time.

An underpinning objective of the Uniform Law is ensuring regulation of the legal profession is targeted and proportionate. In other words, it is focussed on what is needed to promote the administration of justice and ensure members of the legal profession are competent, professional and ethical. The exemption of commercial and government clients from the legal costs disclosure obligations is a good example of this nuanced approach.

Participating in the scheme will reduce the regulatory and compliance costs for law firms operating in both New South Wales and Victoria as they will be able in time to use the same back office systems and precedents in offices in both states.

The new cost disclosure form for the cost of legal work between $750 and not likely to exceed $3000 will also assist practitioners to have a good conversation with their client about costs. In my experience being able to have a frank, upfront conversation with your client about mutual expectations improves and strengthens the relationship you have with them. This reduces the potential for complaints and disputes about costs down the track and helps to build a relationship of trust between the lawyer and client.

The Uniform Law also preserves the independence of the legal profession. In part this is achieved through a strong presence on the Legal Services Council of representatives of the profession. The traditional role of the Supreme Courts in admission to practice is also preserved and the fundamental duties that we all have as practitioners remain essentially the same. Most importantly, perhaps, the Uniform Laws preserves the autonomy not only of the State Supreme Courts but also of regulatory authorities.

All of these factors provide a solid base for the legal profession in Australia to be united. This is important for many reasons, not least being that through unity in the profession

there will be strength. There will be in time a better standing for lawyers in the community and better experiences for consumers. Overall this represents a progressive approach, while preserving the values of the legal profession which have served Australia so well to date.

What is the purpose of your role as Commissioner and as the first Chief Executive of the Legal Services Council?

It is very important to me that the Council work with Law Council of Australia, the Australian Bar Association and local professional associations and other regulatory bodies to ensure the legal profession in New South Wales and Victoria is ready when the Uniform Law begins. I also want to encourage other jurisdictions to join the scheme.

As the Commissioner for Uniform Legal Services Regulation I also have certain functions under the Uniform Law. I will be responsible for overseeing how the professional discipline and dispute resolution provisions of the Uniform Law are being implemented in participating jurisdictions. I can also make Guidelines and Directions about the complaints handling provisions.

The Legal Services Council’s role is about ‘policy setting’ within the framework established by the Uniform Law. The Council is a five person body supported by a small Secretariat. This is a simplification of the framework that was under consideration a few years ago. It aims to minimise administration and regulatory costs. As I have indicated, existing regulatory structures at a local level will continue to be used to provide regulatory services.

My role as Chief Executive Officer is to support the functioning of the Council and to provide the Council with advice. For me, it is important that this advice is informed by the views and concerns of practitioners, firms, professional associations, legal educators and consumers.

Why did you want to take up the role as the first Commissioner of Uniform Legal Services?

The vision of an Australian Legal Profession is an attractive one that many people have been working on for a long time, well before

my involvement.  Most of all, I was keen to be involved when I saw that the two jurisdictions, Victoria and New South Wales, had actually done something practical about achieving this. But there are a number of other things that attracted me to want to be involved. Seeing the profession have a clear standard to charge no more than fair and reasonable costs is great. The enhanced ability of lawyers to provide pro bono services through more flexible practising requirements is another. There are a number of other consumer benefits, like the costs disclosure requirements, which are also good to see.

There are benefits for lawyers themselves, including being part, in time, of a wider united Australian Legal Profession. These are very attractive.

I knew that such an important initiative would require a very capable Legal Services Council. I feel privileged to have the opportunity to work with such distinguished Australians as the Hon. Michael Black AC QC and the other inaugural Legal Services Council members.

I knew also that implementation of the Legal Profession Uniform Law would not only have the support of the two States but also of the legal profession and consumer groups. It is reassuring to know that our work has great support and impetus, for the betterment of society and consumers, and not just the legal profession.

So, this was a good thing to be involved with and I was keen to compete for and to win the role as the Commissioner for Uniform Legal Services Regulation and CEO of the Council.   I also look forward to seeing other jurisdictions join the Uniform Law scheme in time.  What a great thing it will be in future when most Australians know what to expect when they hire a lawyer and to know that their expectations are not only fair and reasonable, but widely accepted, everywhere.  Taking on this role will, I hope, cap what has been for me an interesting career.

40 LAW COUNCIL REVIEW

From your many senior roles in Government, private practice and leading tribunals and committees, what will you bring professionally and personally to the role?

I have been privileged to be part of the legal profession throughout my career. I believe my experience, through many roles fits me well for the job. What we are doing at the Legal Services Council is changing the way the profession is regulated, but still with strong elements of co-regulation with the profession, for the better.  With so much of the Australian economy now being national, it is a good time to see that lawyers and legal services which, are so central to everyday life, can also march on.

I have experience in taking a leading role to change the way government legal services are provided, in competition with the private sector, at the Australian Government Solicitor in the 1990s. The evidence is that this has been successful.

I was pleased, after that, to be associated with a major national law firm for four years. Then I undertook a wide range of management consulting and legal assignments. I did that in running my own business for over 6 years. I have also seen how other professions are regulated through my own business and at the Tax Practitioners Board, which I chaired for over three years.

So I bring pride in being a lawyer, and have an interest and I hope a reasonable track record in changing things for the better. Implementation of the Uniform Law scheme will do that as we build towards a truly national legal profession.

You recently held the first Legal Services Council meeting, can you reveal some of the key issues discussed?

At its first meeting, the Council established the Admissions Committee. The Admissions Committee is responsible for developing Admissions Rules and providing advice to the Legal Services Council about matters related to admission to legal practice. These have

now been released for comment and are available through the Council’s website at www.legalservicescouncil.org.au

The Council also discussed the overall approach to drafting the General Uniform Rules and the release of the proposed rules for public consultation. A consultation draft of General Uniform Rules has been released for comment between 28 November 2014 and 16 January 2015. This is also available through our website and it includes rules about:

• practising certificates;

• incorporated and unincorporated legal practices;

• trust accounts;

• dispute resolution and professional discipline;

• professional indemnity insurance; and

• the reporting and other obligations that must be followed when a law practice is under external management.

The Law Council of Australia and Australian Bar Association have developed proposed rules about legal practice, legal profession conduct and continuing professional development for members of the legal profession. They are also available through the websites of the Law Council and the ABA.

What are the major challenges faced by the newly formed Commission and Council in the coming months?

Over the coming months the focus will be on getting feedback on the proposed rules that will provide the underpinning machinery for the Uniform Law. More broadly, the Council is keen to build awareness about the Uniform Law, as well as its role and that of the Commissioner within the profession.

There will be many other things to do and to look into over time. Some of these will reflect priorities of our two host governments. The Council will, I feel confident, want to say more about its future work program in the New Year.

What will the legal profession in Australia look like in five years’ time when it comes to uniform law?

I hope that we will see a truly national legal profession operating under a single regulatory framework that is brought together through the co-regulatory approach envisioned by the Uniform Law.

We are already starting to see legal services change and evolve, as firms and practitioners seek out new ways to meet the needs of their clients.

The Legal Services Council will also look at ways the scheme can facilitate and support this, including exploring options for a single national trust account and for an Australian Legal Professional Register.

Consumers are also increasingly using technology to make informed choices and to shop around for a range of services. Over time people will increasingly feel like informed purchasers of legal services getting the advice that they need to resolve their legal problems, rather than putting off seeking legal advice because they are worried about costs.

At the same time, many of the fundamental components of the Uniform Law are essentially the same as those that apply to legal professionals at the moment. The Uniform Law should make the day to day life of legal professionals easier – enabling them get on with the good work they do every day serving the interests of their clients.

The Law Council has recently released materials for receiving consultation on the proposed Legal Practice Rules, Continuing Professional Development Rules, and Legal Profession Conduct Rules for Solicitors. To provide feedback and to obtain more information about the consultation, please visit the Law Council’s website.

The Conference of Regulatory Officers is an annual gathering of legal profession regulators from Australia, New Zealand and beyond. CORO provides legal profession regulators with a forum within which to discuss challenges and developments in professional regulation in a changing global marketplace, to exchange ideas and reflect on experiences that strengthen Trans-Tasman co operation. The CORO was this year convened by the New Zealand Law Society in Wellington, New Zealand on 23-24 October 2014.

In early September the Law Council of Australia welcomed the appointment of former head of the Australian Government Solicitor, Mr Dale Boucher, as the inaugural Commissioner for Uniform Legal Services Regulation. Mr Boucher joined Mr Murray Hawkins, Law Council Director of Regulatory Policy and Research, Mr Michael McGarvie, Legal Services Commissioner and CEO, Legal Services Board, Victoria, and Mr Jim Milne, Acting Commissioner, Office of the Legal Services Commission, New South Wales Department of Justice for a panel session and update at the CORO on the Uniform Legal Profession Reforms.

The audience heard that legislation establishing a uniform scheme of legal profession regulation across Victoria and New South Wales has now been enacted. It is hoped that all of the necessary arrangements will be in place to allow the new regulatory scheme to become fully operational from 1 July 2015. The scheme creates a common legal services market across New South Wales and Victoria for about three quarters of Australia’s legal practitioners, through the implementation of the Legal Profession Uniform Law, Uniform Rules and the work of the new inter-jurisdictional bodies.

Mr Boucher mentioned the announced appointment of former Federal Court Chief Justice Michael Black AC QC as inaugural chair of the Legal Services Council. He mentioned that the office of the Commissioner for Uniform Legal Services Regulation and the Legal Services Council had pivotal roles in overseeing the implementation of the Legal Profession Uniform Law to ensure its consistent

application across participating jurisdictions, New South Wales and Victoria. Mr Boucher mentioned the tight timeframes within which proposed Uniform Rules, including Uniform Legal Practice, Professional Conduct and Continuing Professional Development Rules would need to be finalised in order to have the scheme ready to commence in 2015, and he acknowledged the efforts of the Law Council, the Law Institute of Victoria and the Law Society of New South Wales in this work.

Mr McGarvie and Mr Milne reflected on the activities being undertaken under their auspices to prepare for the shift in arrangements as each of their respective jurisdictions readied for the transition to the Uniform Law scheme.

Mr Hawkins reminded the audience that the Uniform Legal Profession scheme represents a new milestone in legal profession regulatory uniformity across a federated nation. He said that Australia was a global leader in this respect and he highlighted the opportunities that this achievement could provide the Australian legal profession to work together in collegiality and goodwill to achieve efficiencies that would benefit the profession and clients across the state and territories.

The panel session was well-attended and very well-received.

Uniform Law at 2014 CONFERENCE OF REGULATORY OFFICERS

AUG - DEC 2014 41

42 LAW COUNCIL REVIEW

At this time, the former Attorney-General, the Hon. Lionel Murphy QC, remarked:

“The Government has taken this action because it believes that one of the basic causes of inequality of citizens before the law is the absence of adequate and comprehensive legal aid arrangements throughout Australia. This is a problem that will be within the knowledge of every honourable Senator who will on many occasions have had to inform citizens seeking assistance with their legal problems that there is nothing he can do for them; that they will need to go and see a private

solicitor…The ultimate object of the Government is that legal aid be readily and equally available to citizens everywhere in Australia and that aid be extended for advice and assistance of litigation as well as for litigation in all legal categories and in all courts.”

Perhaps one of his lesser known remarks on this theme is taken from his judgment in McInnis v The Queen (1979) 145 CLR 438:

“Where the kind of trial a person receives depends on the amount of money he or she has, there is no equal justice.”

Since 1973, legal aid has come to be regarded as an essential element of the Australian justice system. It is credited not only with ensuring people can be advised and represented in criminal and civil proceedings, it also greases the wheels of justice, enabling the more efficient disposal of cases and reducing the propensity of litigants to appear unrepresented.

From 1973 until 1996, the Commonwealth was the dominant funder of legal assistance services – it covered approximately 55 per cent of total funding of legal aid commissions, compared to State and Territory funding of less than 45 per cent. Since they were

TO PRESENT ADVOCACY

FROM PAST IDEALISM

THE RECENT PASSING OF FORMER PRIME MINISTER GOUGH WHITLAM AC QC GIVES PAUSE TO CONSIDER ONE OF THE ACHIEVEMENTS OF HIS GOVERNMENT

DURING ITS LESS THAN ONE TERM IN POWER: THE ESTABLISHMENT OF THE AUSTRALIAN

LEGAL AID OFFICE IN 1973.

AUG - DEC 2014 43

established, Aboriginal and Torres Strait Islander legal services have been funded almost exclusively by the Commonwealth, while community legal centres derive roughly half their funding from the Commonwealth and two-thirds of the remainder from state or territory Governments (the remaining one-third derives from public purpose funds in New South Wales and Queensland).

In 1996-97, the Federal Government introduced new funding arrangements for legal aid, under which Commonwealth funding would be directed only toward matters arising under Commonwealth laws. For a new conservative Government seeking areas to cut spending and shift responsibility to the States, this was easy pickings. State government policies have the largest impact on demand for legal assistance (particularly in relation to crime) and it was, therefore, a fairly simple proposition that state governments should be responsible for legal need arising as a result of state laws.

Unfortunately, the states did not see it that way. The impact of the new funding arrangements on legal aid commissions was immediate and harsh. Real Commonwealth funding levels dropped from $10.59 per capita to around $7.80 per capita and have never properly recovered; while state government funding was extremely slow to fill the void.

Under the new formula, the Commonwealth’s share of legal assistance funding fell from 55 per cent to 35 per cent of the total. To make matters worse, historically low interest rates over the last 10 years have had a significant impact on public purpose funds, which rely on interest derived from solicitors’ trust accounts and provide a significant, though unreliable, source of additional funding for legal aid.

The consequences of demarcating Commonwealth funding for legal aid commissions have been significant. Current legal aid means testing guidelines admit people at around 55 per cent of the Henderson Poverty Line. In most cases, recipients need to be subsisting on social security payments to be eligible. Legal aid is also entirely unavailable for a range of matters. In family law, legal assistance is heavily restricted, notwithstanding that this is the one area in which Commonwealth funding is prioritised. In a number of jurisdictions those seeking legal aid will be

ineligible if his/her partner or former partner is not represented.

IMPACT OF ADVOCACYIn recent years, there have been several inquiries into access to justice and legal assistance funding, including a 2009 Senate Legal and Constitutional Affairs Committee Inquiry into Access to Justice, a Review of the National Partnership Agreement (NPA) undertaken by The Allen Consulting Group between 2012 and 2014 and the New South Wales Law and Justice Foundation’s Legal Australia-Wide (LAW) Survey.

Each inquiry has revealed an extensive unmet legal need in the community and a persistent failure to capture Government attention in relation to the parlous state of legal assistance sector funding.

There has been little recognition of the urgent need for an all-of-government, cooperative approach to Commonwealth/State Government funding decisions.

Funding decisions are a prerogative of Government and are based on a range of factors, including the policy priorities of the Government of the day and the perceived value to taxpayers and the community which can be achieved. It is very easy to perceive legal aid funding as charity – money for criminals and lawyers with little return in terms of votes. It is much harder to perceive legal aid as an investment, with substantial longer-term benefits for the entire community.

THE ECONOMIC VALUE OF LEGAL AIDIn 2009, National Legal Aid and the Law Council of Australia commissioned PricewaterhouseCoopers (PWC) to prepare a report on the “Economic Value of Legal Aid” and a subsequent report on “Legal Aid – the Current Challenges and Opportunities of Co-operative Federalism”.

In its analysis, PWC found that for every dollar invested in legal aid, there is a return of between $1.60 and $2.35 in improved efficiency of the justice system. Note that this analysis did not attempt to quantify other “downstream” savings, such as the cost to other community services from unmet legal need or poor outcomes for individuals under the justice system.

PWC also highlighted the oddity of the funding model which has existed since 1996, which effectively pits different levels of Government against each other, and does not allow for the articulation of a ‘bigger picture’, for example, through national objectives. The Report compared this to funding partnerships in other areas, including under the NPA on delivery of health services, or the NPA on homelessness, which articulate a national approach, reduce administrative complexity and outline objectives agreed to by all levels of Government.

It is noteworthy that these findings are reflected in numerous studies internationally, including in the United Kingdom, New Zealand, Canada and the United States. However, until recently, the findings have failed to capture the attention of the bean-counters – those with the capacity to model the return on the investment and identify the economic case to give legal assistance funding greater priority.

THE PRODUCTIVITY COMMISSION INQUIRY INTO ACCESS TO JUSTICE ARRANGEMENTSIn 2013, members of the Law Council’s Access to Justice Committee approached the former Attorney-General, Mark Dreyfus QC, to seek his support for a reference to the Productivity Commission to inquire into the economic value of legal aid. The purpose in doing so was to bring the Government’s chief, independent economic policy adviser into the picture and lend its weight to the fact that the costs associated with failing to invest in legal assistance are very high, both for the justice system and the tax payer. As once quipped by the former Chief Justice Murray Gleeson AC QC:

“The expense which governments incur in funding legal aid is obvious and measurable. What is not so obvious, and not so easily measurable, but what is real and substantial, is the cost of the delay, disruption and inefficiency, which results from absence or denial of legal representation. Much of that cost is also borne, directly or indirectly, by governments. Providing legal aid is costly. So is not providing legal aid.”1

1 Chief Justice Murray Gleeson, State of Judica-ture (speech delivered at the Australian Legal Convention, Canberra, 10 October 1999).

44 LAW COUNCIL REVIEW

The terms of reference from the Commonwealth Treasury outlined that the inquiry would examine almost every aspect of the civil justice system, including the factors driving legal costs, the economic and social impacts of those costs, alternative justice mechanisms, the adequacy of professional regulation of lawyers, data collection, and public and private funding models for litigation.

The Law Council commenced its response to this inquiry, as it often does, by forming a national working group to assist in responding and preparing submissions. The first submission made by the highly productive and engaged Working Group, immediately after the release of the Productivity Commission’s Issues Paper, outlined suggested focus areas for the Commission. These included:

• The importance of understanding the illogicality of attempting to examine the civil law system in isolation from the criminal justice system, in an inquiry into access to justice arrangements;

• Funding of the legal assistance sector, including the funding model; and

• The economic value of legal aid.

The Law Council’s comprehensive submission to the Productivity Commission inquiry was an exercise in truly national cooperation and coordination among legal associations. Numbering more than 140 pages, the document was developed by the 12-member Working Group, the Law Council Directors, Executive and three Secretariat staff with input from relevant Section and Advisory Committees, Working Groups and the Law Council’s Constituent Bodies, a number of which made extensive contributions in their own right. A detailed article on the Law Council’s submission was featured in Issue 10 of the Law Council Review.

The Law Council also submitted a subsequent addendum based on responses received from its Constituent Bodies relating primarily to legal costs, lawyers‘ fees and other matters.

The almost 900-page Draft Report released by the Productivity Commission in April 2014 raised a number of concerning draft recommendations, for example in relation to:

• More professional regulation and costs disclosure;

• Court fees based on full cost recovery;

• Extension of limited licences to lay advocates;

• Removal of contingency fees;

• Excessive regulation of litigation funders; and

• Legal assistance sector funding.

However, the Draft Report did highlight the possibility of more legal assistance sector funding, regulation of private funding for litigation and limited scope retainers for court processes. The Productivity Commission noted that “More resources and more efficient and effective practices by legal assistance providers are required to better meet the legal needs of disadvantaged Australians.”

Editor’s Note: The Productivity Commission’s Final Report was tabled on Wednesday, 3 December 2014. An in-depth analysis of the Final Report will be made in the March 2015 edition of Law Council Review.

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46 LAW COUNCIL REVIEW

T he Law Council accepts there’s a legitimate need for certain law enforcement and intelligence agencies

to access telecommunications data in the possession of telecommunication and internet service providers, for the purpose of carrying out their statutory functions.

Any laws requiring data retention beyond the business needs of an organisation must be reasonable, necessary and proportionate to a legitimate purpose. The Law Council does not support a mandatory data retention scheme because:

a. the purpose of mandatory data retention is unclear;

b. blanket mandatory data retention has not been demonstrated as reasonable, necessary or proportionate by the government;

c. the government should explore less restrictive alternatives that will meet legitimate counter-terrorism purposes;

d. the nature and scope of the data to be retained is unclear, uncertain and subject to change by the Executive; and

e. it does not provide safeguards or restrictions for civil or for non-law enforcement purposes.

DATA RETENTION: Law Council does not support mandatory data retention

The Law Council of Australia believes access to telecommunications data by law enforcement and intelligence agencies must be governed by a robust legislative regime to ensure that data security is safeguarded and access is:

a. only permitted when the public interest outweighs the individual’s right to privacy;

b. limited to those particular agencies that can demonstrate a legitimate need for access;

c. is subject to strict safeguards to guard against unjustified intrusion to individual rights including privacy, and protects against unauthorized use or disclosure of such information;

d. only accessible by warrant unless strictly necessary to provide emergency access; and

e. prescribed in legislation not regulation.

The Law Council has concerns about mandatory telecommunications data retention proposals in general. They can significantly impact the privacy of all Australians, not just suspected criminals or people of national security interest.

ON 29 NOVEMBER 2014 LAW COUNCIL OF AUSTRALIA DIRECTORS ADOPTED A POLICY POSITION OPPOSING THE MANDATORY TELECOMMUNICATIONS DATA RETENTION SCHEME IN THE TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) AMENDMENT (DATA RETENTION) BILL 2014.

AUG - DEC 2014 47

MORE INFORMATION IS NEEDEDThe Law Council has asked both the Attorney-General’s Department and parliamentary committees looking into mandatory data retention proposals to obtain technical advice on a range of important matters, such as:

• the cost of establishing an Australian data retention regime;

• how securely and efficiently such a regime can store data and convert it into a form that law enforcement, intelligence officers and courts can search, access and understand;

• the potential for such a regime to be circumvented (and rendered ineffective) by:

– organised and/or sophisticated criminal organisations

– foreign intelligence services

– hackers

– terrorists

– insider threats

– the privacy risks associated with storing such vast amounts of personal data; and

– issues associated with disclosing such data.

The Law Council believes that before any Australian Government pursues a mandatory data retention proposal, some questions need to be answered. Why does the current regime need to be expanded? How would it operate? How much will it cost taxpayers and the telecommunications industry? What telecommunications data will be retained, and how will it be used to meet identified intelligence and law enforcement objectives?

In light of the recent European experience, the Law Council also believes specific safeguards should be developed to isolate and identify the nature of the telecommunications data being retained. A nexus needs to be established between the use of such data and an identified intelligence and law enforcement objectives. It should include a warrant process that is, at a minimum, as robust as the existing processes under the Telecommunications (Interception and Access) Act 1979. Strict limits need to be imposed on secondary disclosure of the retained data. It needs to include specific oversight and reporting requirements.

Controls also need to be put in place to ensure any data obtained or retained is destroyed appropriately.

SUPPORT FOR INTELLIGENCE COMMITTEE’S RECOMMENDATIONSThe Law Council also considers that any such proposal should comply with the recommendations outlined in the Parliamentary Joint Committee on Intelligence and Security’s (PJCIS) Report of the Inquiry into Potential Reforms of Australia’s National Security Legislation (24 June 2013).

In the report, the PJCIS recommends that:

• any mandatory data retention regime must apply only to metadata, not content;

• Internet browsing data be explicitly excluded;

• any information that can’t be separated from data be treated as content, and require a warrant for lawful access;

• data encryption be mandatory to ensure secure storage;

• data retained under a new regime should be retained for no more than two years unless existing provisions allow agencies to retain data for a longer time;

• the government reimburse providers for any costs incurred;

• a robust, mandatory data breach notification scheme be established;

• an independent audit function within an appropriate agency to make sure telecommunications service providers communications don’t store content be established; and

• the ombudsmen and the Inspector-General of Intelligence and Security oversee agencies’ access to telecommunications data.

POSSIBLE AMENDMENT TO THE TELECOMMUNICATIONS ACTThe Law Council also supports the PJCIS’ recommendations regarding telecommunications security, partly intended to help mitigate risks around stored data. One recommendation is to amend the Telecommunications Act 1997 and create a telecommunications security framework.

Under this new framework, the telecommunications industry would be obligated to protect not only the infrastructure from unauthorised interference, but also any information held on it or passing across it. They would be required to provide the Government with information to help assess national security risks to telecommunications infrastructure. Powers of direction and a penalty regime would also be put in place to encourage compliance.

Another PJCIS recommendation (which the Law Council agrees with) is for the Government to release a Regulation Impact Statement to address a number of issues. How will the proposed regime interact with the legal obligations already imposed on corporations? How will it work with existing corporate governance where decisions made overseas drive a provider’s activities? Could service providers who have acted in good faith under the requirements of the proposed framework be indemnified from civil action? And could the proposed requirements have an impact on marketplace competition, creating barriers for lower-cost providers and decreasing market competition on pricing as a result?

The Law Council understands the need for some telecommunications data to be retained so certain law enforcement and intelligence agencies can fulfil their duties. But there needs to be a balance between the need to know and the right to privacy.

The G20 was established at a meeting of finance ministers in the wake of 1999 Asian financial crisis. The G20 became a heads of government meeting in 2008 that responded to the global financial crisis - a phenomenon largely attributed by some to be the product of corporate excesses and the total collapse of ethical conduct in the financial services industry.

The two day Summit brought together international leaders from professions, government and academia, as well as faith-based, transparency, governance and ethics organisations to examine the global integrity problem. G20 nations have been beset for many years by the consequences of a lack of integrity in their financial systems and financial institutions – wide-spread money laundering in the 1990s, the HIH collapse in Australia, the Lehman Brothers collapse, the Freddy Mac and Fannie Mae failures and the ENRON scandal in the US, and the bail out the Royal Bank of Scotland in the UK to name a few.

In response, G20 nations have reached for the regulation solution – ever more regulatory requirements and new agencies to administer the regulatory medicine. However, more

GLOBAL INTEGRITY – A regulatory challenge or an ethical leadership issue?

regulation has not solved the integrity problems of our financial institutions and financial systems – the recent HSBC money-laundering scandal for example occurred in the face of one of the world’s most comprehensive anti-money laundering financial reporting and risk control frameworks.

A recurrent theme running through the two days of the conference was that the current collection of G20 responses to the Global Financial Crisis (GFC) and other reform programs have failed to build integrity. Instead the reform agenda has created an environment of negative regulation based upon prescription, proscription and criminalisation, in which compliance by the regulated community and surveillance by the state are the dominant objectives of regulation. An industry and culture of regulatory compliance has taken the place of organisational and business judgments about integrity.

It was argued at the Summit that this approach will not help build integrity systems within developing economies. These economies are facing the multiple challenges of corruption, poor legal frameworks, weak

The Griffith University in Queensland recently hosted the Global Integrity Summit to examine the ethics and integrity of the G20 agenda.

regulatory agencies, unsophisticated tax regimes, a lack of infrastructure, an absence of transparency and accountability and exposure to developmental exploitation.

A different approach is needed. There is a growing global call for new approaches that focus less on regulatory prescription and control and more on outcomes and partnerships that build systems and institutions of integrity, ethical leadership and behaviours - on adding what has been described by Christine Lagarde of the IMF in the context of financial stability as the “systematic ethical dimension”

The legal profession is an integrity institution. Our purpose, role, relationships and contributions to society are both defined and at the same time governed by the framework of ethical principles and professional obligations that characterises the legal profession as a profession. A good example of the leadership role of the profession in integrity building is the work the Law Council of Australia is doing as a member of the South Pacific Lawyers’ Association, especially the work on developing of a model code of professional conduct for lawyers of South Pacific nations.

48 LAW COUNCIL REVIEW

2015

CPD IMMIGRATION LAW CONFERENCEMelbourne 20-21 March

The Annual CPD Immigration Law Conference, presented

by the Migration Law Committee, will be held on

Friday 20 and Saturday 21 March 2015 at Melbourne Park Hyatt

1 Parliament Square, off Parliament Place, Melbourne.

A welcome function will take place on Thursday 19 March 2015

at the Immigration Museum, 400 Flinders Street, Melbourne.

The Conference Dinner will be held on Friday evening with the winner of the

John Gibson AM Young Lawyer Award announced for 2015.

View photos from the 2014 CPD Immigration Law Conference

Find out more about the Law Council of Australia Migration Law Committee and view recent

submissions on the Migration Law Committee page.

Register now or contact ils@lawcouncil.asn.au for more information.

For more information on sponsorship opportunities contact Conference Organising Committee members Melissa Haag, melissa@hwlawyers.com.au or

Valerie Pereira, valerie@dagamapereira.com.au

Property Exchange Australia Ltd (PEXA) began its pilot rollout of the second release of the national electronic conveyancing system (NECS) to selected lawyers and conveyancers in metropolitan Sydney and Wollongong last month, with Bendigo and Geelong scheduled to begin transacting early next year.

The first release of PEXA is already live in New South Wales, Victoria, Queensland and Western Australia with 10 banks currently using the platform. This second release to property lawyers and conveyancers extends the functionality to include the ability to lodge and withdraw caveats and complete electronic property transfers, including online lodgement and financial settlement.

NECS enables a conveyancing transaction to be settled electronically. The PEXA platform facilitates the preparation of the transfer of title document, payment of stamp duty, payment of the balance of the purchase money, the lodgement and registration of the transfer and title documentation at the relevant land registry, and disbursement of the proceeds of settlement.

From February 2015, the PEXA roll-out will extend to all Victorian and New South Wales practitioners.

Queensland and Western Australian practitioners are scheduled to begin transacting in PEXA from May 2015.

It is envisaged that practitioners in South Australia, Tasmania and the Northern Territory will all be invited to join PEXA across the third and fourth quarters of 2015.

Further information about the rollout of the PEXA platform and the ways in which lawyers may access the platform is available here.

THE LAW COUNCIL OF AUSTRALIA’S INVOLVEMENTThe Law Council has been involved in consultation in relation to NECS since 2005. A large part of the Law Council’s input into the development of NECS has been through the Law Council’s NECS Committee.

In July 2013, the Law Council agreed to participate in the Electronic Conveyancing Group (ECG), which comprises the Law Council, the Australian Bankers’ Association and the Australian Institute of Conveyancers working collaboratively in consultations with PEXA and the Australian Registrars’ National Electronic Conveyancing Council (ARNECC), the regulatory body for NECS.

The Law Council’s approach in all consultation to date is firmly based on the view that lawyers using the system (Subscribers) should not be exposed to any greater risk or liability than occurs in the current paper environment.

CONSULTATION WITH PEXAThe Law Council has been involved in consultation with PEXA in two main ways, providing feedback on design matters relating to the development of the e-conveyancing platform and providing feedback on the documentation that Subscribers must execute in order to utilise the PEXA platform. The primary document that Subscribers need to sign is the Participation Agreement which incorporates a number of other documents such as the Service Charter, the Pricing Policy, the Subscriber Security Policy and the Standard Operating Environment Requirements.

ELECTRONIC CONVEYANCING FOR TRANSFERS OF LAND – IT IS HERE!

50 LAW COUNCIL REVIEW

AUG - DEC 2014 51

The Law Council recently provided feedback on the draft Participation Agreement from the NECS Committee, the Business Law Section e-commerce Committee, the Business Law Section Privacy Committee and the Large Law Firm Group. While the majority of amendments requested by the Law Council to the documentation were made by PEXA, not all requested amendments were made. Lawyers should of course carefully review the Participation Agreement and the other incorporated documentation before completing PEXA’s on-boarding processes.

CONSULTATION WITH ARNECCThe Law Council has been involved in consultation with ARNECC as it refines and finalises the regulatory framework for NECS. The regulatory framework is largely in place and consists of:

• the Electronic Conveyancing National Law, the principal legislation which has been developed and enacted in all participating States and Territories;

• the Model Operating Requirements which set out the requirements relating to the operation of an Electronic Lodgment Network Operator (ELNO), which were last revised in March 2014 (these essentially apply to PEXA); and

• the Model Participation Rules which set out the rules for Subscribers, which were last revised in March 2014. In NECS a Subscriber is a firm rather than an individual (except, obviously, in the case of a sole practitioner).

Each participating jurisdiction adopts the Operating Requirements and Participation Rules having regard to their own system readiness, the timing of the PEXA roll-out in that jurisdiction and their own process of adoption.

Further refinements of the framework are continuing. At the time of writing, ARNECC was still considering whether the Model Participation Rules should be amended to delete the insurance requirement for Subscriber Agents (which are essentially entities offering verification of identification services). The Law Council through the ECG has opposed this proposal on the basis that the process of verification of identity must be as robust, professional and effective in mitigating fraud as possible and this is promoted by mandating that all Subscriber Agents be required to maintain insurance against liability for negligence or fraud.

PREPARATION FOR ELECTRONIC CONVEYANCING Apart from understanding the regulatory framework and the PEXA documentation, significant preparation work will need to be done by practitioners wishing to participate in NECS.

Arrangements will need to be made for verification of identity of Subscribers, obtaining digital certificates, registering the firm’s trust account with PEXA and ascribing the various roles amongst staff to operate the PEXA system. Most importantly, a Subscriber will need to identify a responsible individual to manage the issue, maintenance and revocation of the firm’s digital credentials for use with NECS. This is a vital role as the misuse of a firm’s digital credentials may leave the firm liable for the consequences.

FURTHER INFORMATIONThe regulatory framework: www.arnecc.gov.au

Visit www.pexa.com.au for more information.

52 LAW COUNCIL REVIEW

Law Council welcomes appointment of inaugural Chair of the Legal Services CouncilThe Law Council of Australia welcomes the appointment of former Federal Court Chief Justice Michael Black AC QC as the inaugural chair of the Legal Services Council.

The Legal Services Council will play a key role in the new uniform legal services scheme and will oversee the implementation of the Legal Profession Uniform Law to ensure its consistent application across participating jurisdictions, which at this stage include New South Wales and Victoria.

Mr Black was appointed Chief Justice of the Federal Court of Australia in 1991 and held the position for almost 20 years. Prior to his appointment as Chief Justice he practised at the Victorian Bar.

During his time as Chief Justice, the Court consolidated its position as the national intermediate appellate court and had, as well as his judicial duties, statutory responsibility for the administration of the Court.

Under his guidance and control, the Federal Court introduced many innovations in procedural change, including the specialist panel system, the introduction of the Docket System and the ‘Rocket-Docket’ System.

Mr Black is recognised for his responsive and innovative approach to procedural change and for his outstanding administrative skills.

Mr Black was also responsible for leading and directing the creation of the Victorian Bar Readers’ Course and in doing so has influenced the legal education of barristers for over 30 years.

His consultative nature combined with his broad background and extensive experience at the Bar and the Federal Court bench, will prove invaluable in his role with the Council.

Mr Black has a strong reputation in the legal profession and will fulfil this new role with great effectiveness.

The Law Council also welcomes the announcement of the appointment of the four members of the Legal Services Council: Mr Steven Stevens, Mr Brett Walker SC, Ms Fiona Bennett and Ms Kim Boettcher.

Under the uniform scheme the Law Council is responsible for recommending a person from a participating jurisdiction to be a member of the Council and we congratulate the Law Council’s nominee, Mr Steve Stevens, on his appointment.

Mr Stevens is the former President of the Law Institute of Victoria, former Director of the Law Council of Australia, Chair of the Law Council’s Professional Ethics Committee and is the elected legal practitioner representative on the Victorian Legal Services Board.

The Law Council also congratulates Mr Brett Walker SC, former President of the Law Council of Australia, former President of the New South Wales Bar Association, former Chair of the Law Council’s National Criminal Law Liaison Committee and current Chair of the Law Council’s Constitutional Law Committee on his appointment.

Mr Stevens and Mr Walker will bring to the Legal Services Council a wealth of experience and knowledge which will provide detailed insight and direction for the Council.

TOP NEWS OF THE QUARTER

The Law Council also congratulates Ms Bennett and Ms Boettcher on their appointment to the Council.

Ms Bennett’s experience as a member and Chair of the Victorian Legal Services Board will be vital to the work of the Council.

Ms Boettcher’s contribution and experience in corporate governance, consumer advocacy and practice in both the UK and Australia will also provide exceptional guidance to the Legal Services Council.

The Law Council is expected to be a key body involved in providing suggestions and comments on Uniform Rules and Guidelines to the Legal Services Council and to the Commissioner for Uniform Legal Services Regulation, Mr Dale Boucher.

The Law Council supports the development of a consistent approach to regulation of the legal profession across Australia and looks forward to working with the Legal Services Council as the Australian legal profession moves towards a consistent and integrated system of regulation.

AUG - NOV 2014 53

Law Council says Indigenous imprisonment is a national crisisThe Law Council of Australia’s Indigenous Legal Issues Committee and Indigenous Imprisonment Working Group are concerned about the alarming Aboriginal and Torres Strait Islander imprisonment rates.

Law Council of Australia President-elect, Mr Duncan McConnel, said Indigenous imprisonment rates have doubled since the time of the Royal Commission into Aboriginal Deaths in Custody.

“Now, around 1 in 4 deaths in custody is Indigenous, up from 1 in 7 at the time of the 1991 Royal Commission into Aboriginal Deaths in Custody.”

Mr McConnel said the release of the Productivity Commission Report on Overcoming Indigenous Disadvantage last week shows that while some improvement is being made in relation to employment, education and health, the rate of Indigenous imprisonment is growing at an alarming rate.

“Indigenous youths are now locked-up at 24 times the rate of non-Indigenous youths and the incarceration rate for Indigenous women has increased by 74% since the year 2000.

“This is a national crisis, requiring a national response and leadership from the Federal Government.

“In August last year the Law Council welcomed the Federal Government’s commitment to developing a series of justice targets aimed at addressing disproportionately high imprisonment rates of Indigenous Australians as an important and positive commitment.

“The recent announcement by Senator Scullion that the Federal Government is no longer considering justice targets in response to what can only be called a national emergency, is unexplained and unacceptable.

“It appears to go against the Minister’s own advice on this issue.

“The Government’s change of position comes in the wake of cuts to legal assistance services for Aboriginal and Torres Strait Islander peoples,” Mr McConnel said.

In December last year, the Federal Government announced $13.4 million in cuts to Indigenous legal services and has now also refused to guarantee ongoing funding for Family Violence Prevention Legal Services, the only legal services dedicated to assisting Aboriginal victims of family violence – mostly women and children.

“What we are now seeing is a reduction in legal aid funding for Aboriginal people, while legal need continues to increase year to year,” Mr McConnel said.

This growing legal need was highlighted in the Law Council’s recent Federal Budget submission which referred to evidence from the Director of the New South Wales Bureau of Crime Statistics and Research, Dr Don Weatherburn PSM, that Indigenous Australians are now nearly 18 times more likely to be imprisoned than other Australians.

Dr Weatherburn attended the Law Council’s Indigenous Legal Issues Committee meeting today and said the high rates of imprisonment are detrimental to entire communities and have a far reaching economic impact, with Dr Weatherburn estimating it is costing Australian tax-payers more than $795 million per annum just to maintain the current level of Indigenous imprisonment.

The Law Council believes Indigenous imprisonment rates are also being impacted by the expanded take-up of minimum mandatory sentencing regimes.

“The Law Council has recently released a Mandatory Sentencing Policy and Discussion Paper to draw attention to the effects of mandatory sentencing regimes.

“The Law Council considers that mandatory sentencing potentially results in harsh and disproportionate sentences where the punishment may not fit the crime.

“There are already many reported examples where mandatory sentencing has applied with apparently unjust results – such as a 15 year old Aboriginal boy receiving a 20 day mandatory sentence for stealing pencils and stationery.

“The Law Council’s Mandatory Sentencing Policy and Discussion Paper are intended to call on governments to explore alternatives to mandatory sentencing terms of imprisonment such as justice reinvestment strategies and diversionary non-custodial options.

“Evidence suggests such programs can be more effective in reducing crime, improving rehabilitation outcomes for offenders and providing pathways to training and employment outside prison.

“These programs have the potential to deliver long term, sustainable outcomes for the community and are consistent with Australia’s commitment to the rule of law.

“The Law Council is calling on the Federal, State and Territory Governments to place Indigenous imprisonment on the agenda of the Council of Australian Governments and to develop a sustainable and achievable strategy for lowering the rate of Aboriginal and Torres Strait Islander imprisonment,” Mr McConnel concluded.

54 LAW COUNCIL REVIEW

Law Council supports Malaysian Bar’s ‘Walk for Peace and Freedom’The Law Council of Australia joins with LAWASIA in supporting the Malaysian Bar’s resolution at its Extraordinary General Meeting of 19 September to host a peaceful public protest by its members against the continued use of the Sedition Act 1948.

Law Council of Australia President, Mr Michael Colbran QC, said the Law Council shares the concerns of the Malaysian Bar and others in the international legal community that the continued use of sedition laws in Malaysia is stifling freedom of speech and expression.

Law Council of Australia President-elect, Mr Duncan McConnel, will travel to Malaysia this week to act as an Observer in the ‘Walk for Peace and Freedom’ which is taking place on 16 October.

The Law Society of England and Wales and the Union Internationale des Advocats, also deeply troubled by the use of the Sedition Act in Malaysia, have requested that the Law Council’s Observer, Mr McConnel, represent them at the ‘Walk for Peace and Freedom’.

The Law Council is strongly supportive of the Malaysian Bar’s efforts to advocate for the repeal of the Sedition Act, and its call for the withdrawal of criminal charges against all persons currently facing persecution.

“The Law Council is deeply concerned by reports that the Sedition Act is being used in such a way that those who are viewed as critical of the Government are subject to investigation and prosecution under its powers.

“The Law Council has been keeping a watching brief on this issue and is alarmed by

reports that a number of those that have been prosecuted under the Sedition Act are members of the Malaysian legal community.

“Lawyers must be free to represent their clients without interference and to advocate fearlessly for the practical acceptance and application of the Rule of Law.

“Such advocacy is not in opposition to the authority of any government to make law, but rather strengthens that authority.

“If citizens and organisations can question laws that appear to infringe basic rights and liberties – whatever those rights may be within a legal jurisdiction – then the system has greater integrity, which strengthens respect for the system.

“It is this focus on the system – the rule of law – that necessitates independence: independence from Government and political interference and independence from public sentiment,” Mr Colbran said.

The Council also notes that the United Nations Basic Principles on the Role of Lawyers indicates at Article 23 that lawyers “have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights…”

The Law Council encourages political discussions to focus on the merits and technical application of the law rather than attacking those whose duty it is to uphold the rule of law and advocate within the law.

Together with LAWASIA, the Law Council calls on Malaysian authorities to ensure that Malaysian lawyers are able to carry out their mandated duty through actions including the ‘Walk for Peace and Freedom’, without fear of reprisals from those elements of Malaysian society who oppose their views.

TOP NEWS OF THE QUARTER

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NATIONAL NEWS

AUG - DEC 2014 57

AUSTRALIAN CAPITAL TERRITORY ACT Law Society

A new councilFollowing the recent election we have a new Council. There are six new faces around the table — you can read their profiles in the December edition of Ethos.

Angus Bucknall has come onto the Executive Committee as the Council representative.

We extend our thanks to those people who have served but are no longer councillors, and to those who stood unsuccessfully. The Law Society benefits from the willingness of so many members being prepared to participate.

I wish to thank Kay Barralet in particular for her hard work on the Council and executive over a long period, most recently as vice president.

Dinner danceMembers enjoyed an evening of good food, good company and dancing at Old Parliament House where the Society’s annual dinner dance was held.

We have decided to acknowledge those people who have been in practice for 40 years with a pin to mark the achievement. Several of the +40s were present at the dinner. Their contribution to the profession over a sustained period of time is to be congratulated.

Justice John Burns presented the Young Lawyer of the Year Award to Dr Jessica Kennedy, and I was pleased to present the President’s Medal to Richard Faulks, managing partner at Sneddon Hall & Gallop.

Notable achievementsAt the September members’ lunch we applauded the ongoing assistance provided to the Society by our Secretary Louise Vardanega by giving her honorary membership. Louise’s contribution to the Law Society has been outstanding over a long period, beginning in 1976. She was a member of the Complaints Committee and the Administrative Law Committee. She has been a member of the Council continuously since October 1991 — more than 22 years. During that time, she has served as Secretary of the

Society for 20 years. Through a combination of calm good sense and expert advice, she has played a central role in the stability of the Society and its effectiveness as a regulator of the professional conduct of its members, to the benefit of the profession and the community in general.

Deputy Chief Justice of the Family Court John Faulks has celebrated his 20 year anniversary on the bench. His Honour has accepted an invitation to be our guest at the December Christmas Members’ lunch.

Richardson OrationIn conjunction with ACLA, the Law Society hosted the annual Richardson Oration at the National Portrait Gallery. We were fortunate to hear Justice Steven Gageler of the High Court speak on the topic of impact of technology, particularly the availability of judgments and information on the development of the law in Australia. You can read his speech in the December edition of Ethos.

National Legal Profession — Uniform lawDianne O’Hara and I met with Dale Boucher, the new Federal Commissioner for Uniform Legal Services regulation. Mr Boucher indicated that it is anticipated that the uniform law as enacted in Victoria and NSW will become operational as at 1 June 2015. The law will regulate the legal profession in both States, including as concerns the issue of practising certificates, complaints process, discipline, auditing of trust accounts and billing matters.

Former Chief Justice of the Federal Court the Hon. Michael Black AC QC has been named as the inaugural chair of the Legal Services Council. The Council will oversee the implementation of the Uniform Law to ensure consistency across participating jurisdictions.

The Law Society of Western Australia has recommended to their government that WA join the national profession.

Locally, the Society has expressed our support for a national profession but continues to have concern regarding the cost of joining. The ACT Government has advised that any expense will not be met out of general revenue but rather by the profession. This effectively means increased practising certificate fees.

We have suggested that we take a ‘wait and see’ approach and review our position after the model law has been operating interstate for six months.

National Solicitors Conduct RulesThe question of whether to adopt the national conduct rules is on the agenda for the Council to determine early in 2015. A meeting to discuss the benefits and shortfalls was held at the Society on 30 November at which time a variety of views were aired. The consensus was supportive of adopting the national rules but with clear local guidelines being provided to members indicating how the rules would be interpreted.

Design work for new Supreme CourtAlong with councillor Phil Schubert and CEO Dianne O’Hara, I have met with the team responsible for providing the design brief to the consortiums bidding to build the new Supreme Court building.

The design concept includes, among other things, a single entry to the court complex, the inclusion of a ceremonial court and removable docks in the court rooms.

A temporary court structure to house the Supreme Court will be built adjacent to the Magistrates Court building.

Committee name changesTwo of our committees have changed their names.

To reflect that the committee membership is not only drawn from the ranks of government departments there has been a slight change so that the relevant committee is now the Government Law Committee.

Indicating the broader remit of the committee, the Access to Justice Committee expands to be the Access to Justice & Human Rights Committee.

Justice Reform projectI attended the first meeting of the Justice Reform Strategy (JRS) Advisory Group on 12 November. We were advised the key drivers of the JRS are the increase in prisoner numbers despite a decrease in the crime rate, the Attorney-General’s personal interest in framing sentencing policy, and Corrective Services work regarding administration of sentences and new options that are available in other jurisdictions.

The first order of business is to consider a replacement for periodic detention. The project will review programs operating interstate and overseas and available literature dealing with sentencing offenders. Specific consideration will be given to the problems of alcohol and drug use, mental health issues, disability and developmental issues as they impact in the criminal justice

58 LAW COUNCIL REVIEW

NATIONAL NEWS

NEW SOUTH WALESThe Law Society of New South Wales

environment. The overrepresentation of Aboriginal and Torres Strait Islander people offenders will also be addressed.

A new project officerWe are pleased that Jacqueline Gartland has joined the Law Society as our new Project Officer. Jacqueline has experience in policy and research and has already settled in well. Jacqueline fills the vacancy left by Chase Deans when he resigned. We wish Chase all the best as he commences work as a lawyer.

National Golden GavelCongratulations to the Young Lawyers Committee who organised the National Young Lawyers Conference and the National Golden Gavel competition at Parliament House. Both events were well attended and successful.

When the dust settled at the Golden Gavel the grand prize was claimed by Jamie Cooke from Norton Rose Fulbright, a Scotsman masquerading as a West Australian, but our own champion Soraya Saikal won the people’s choice by acclamation.

The ACT Bar Association launched the ‘Scholarship for Women Practising at the Bar’ on Thursday, 6 November 2014.

The aim of the scholarship is to strengthen the representation and to facilitate the retention of female barristers at the ACT Bar.  

The ACT Bar Association is committed to promoting the interests of female barristers and to promote equality and equal opportunity at the Bar.  

Presentation of the Scholarship was made by the Hon. Chief Justice Helen Murrell of the Supreme Court of the ACT.  

ACT Bar Association

The scholarship was awarded to Ms Heidi Robinson who has recently joined the ACT Bar.  

Ms Robinson joined the Bar in August 2014 after successfully completing the New South Wales Bar Practice Course.  

She previously practised with the ACT Government Solicitor where she led the employment and industrial relations practice group.  

Ms Robinson’s other experience includes corporate law and commercial litigation in private firms and as Director of Industrial Relations in the ACT Government Senior Executive Service.  

The ACT Bar Association acknowledges that more needs be done for women in the legal profession, particularly for working mums and to this end, the ACT Bar is grateful to the generosity of Michael Miller of MLC Advice (Canberra) for their sponsorship. 

For more information about the scholarship, please contact ceo@actbar.com.au.

Law Society launches 2015 State Election Policy PlatformThe Law Society of New South Wales has launched its 2015 State Election Policy Platform seeking support for key legal rights and law reform ahead of the 2015 election.

The Law Society’s 2015 New South Wales State Election Policy Platform sets out eight areas in which changes should be made to the

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QUEENSLAND Queensland Law Society

benefit of the New South Wales community, along the themes of Balance. Rights. Justice. They include:

• A balanced criminal justice system: the Law Society of New South Wales is calling on all parties to reject mandatory sentencing and repeal laws which impose minimum terms of imprisonment; stop knee-jerk amendments to the law of bail; and take urgent action to reduce the disproportionately high number of Indigenous people in New South Wales prisons.

• Protecting rights: the Law Society of New South Wales is calling on all parties to restore fair compensation to injured workers in New South Wales; maintain fair entitlements for people injured in motor accidents; repeal consorting laws which criminalise non-criminal behaviour; and improve outcomes for Indigenous children in the care and protection system.

• Access to justice: the Law Society of New South Wales is calling on all parties to ensure adequate funding for courts, legal aid and the office of the Director of Public Prosecutions; and give people the right to choose to have legal representation in courts and tribunals.

Recognition for New South Wales solicitorsLieutenant Commander Shannon Richards has been awarded the 2014 Law Society of New South Wales’ President’s Medal for his commitment to national service in the Royal Australian Navy. The military lawyer is also co-founder of KidsXpress, a Sydney-based children’s charity.

Sydney solicitor, Harry Freedman, has also been recognised for his pro bono work, receiving the Law Society of New South Wales’ President’s Award at the 2014 Justice Awards in Sydney.

New App for Law Society Jour-nalIn September the Law Society of New South Wales launched a new App for its monthly Law Society Journal (LSJ), allowing readers access to the publication anywhere, anytime.

Law Society of New South Wales members have responded well to the new App, which is available on iPhone and Android and includes all issues since June 2014.

The App also allows members to store every issue of the magazine on their mobile device and provides interactive content such as videos and podcasts which is not possible via the print version of the LSJ.

G20’s best laid plansBy the time of publication, Brisbane’s hosting duties for the G20 Leaders’ Summit have come and gone. However at the time of writing, the event is a near but unpredictable future event. Queensland Law Society’s focus in the lead up has been to:

• support Brisbane community legal centre Caxton Legal’s Independent Legal Observers Project;

• work with Queensland Courts to inform members of Brisbane CBD court arrangements for the week of the summit;

• coordinate a private practitioner referral list for people arrested during G20; and

• educate the community about the special G20 (Safety and Security) Act 2013 provisions.

The Society has excellent working relationships with key G20 preparation stakeholders including Caxton Legal, Queensland Courts, Queensland Police Service, Legal Aid Queensland, Bar Association of Queensland and Department of Justice and Attorney-General. Working together, these organisations have established comprehensive preparation plans and activity protocols for the legal profession, community and security agencies. While it is impossible to predict outcomes of an event of the scale and import of G20, it is hoped Brisbane benefits from the coordinated efforts of the legal profession, courts and police with a largely peaceful event that offers a positive template for the next host, Turkey, in 2015.

Law students face future struggleQueensland currently has a situation where students vastly outnumber the positions on offer and other states have a similar dilemma.

In 1993, 21 years ago, The Courier-Mail reported there were 29,165 lawyers in Australia and 17,108 law students. There was roughly 1 lawyer for every 640 Australians.

In 2014 there are approximately 67,000 lawyers in Australia – an increase in the last

20 years of about 230 per cent, and 36,000 law students in Australia – an increase of about 210 per cent. There is roughly 1 lawyer for every 399 Australians.

Anecdotal evidence, primarily through our Early Career Lawyers Committee, states there are not enough positions for all. The reason for the discrepancy between law student numbers and the positions available arises from the changing legal profession landscape in terms of business management, client expectations and service delivery.

There is a widely held view that legal profession growth has peaked and that we will not see the continued growth in the profession in terms of solicitor numbers and revenue. The economic climate, changing legal fee and business structures together with service offering changes have reduced the need for graduates. The profession is changing while tertiary placements are based on historical sustained growth of the legal profession.

In this current state of flux, Queensland Law Society offers a number of support services to law students and has this year embarked on an open dialogue with universities on this issue.

Queensland Law Society supports law students seeking employment through our graduate employment and vacation clerkship guidelines, annual Legal Careers Expo and attendance at university open days. We expect the need for these support services and advice to continue to increase for at least the next two years.

The Society has initiated regular meetings, to occur at least twice yearly, between Queensland Law Society and Queensland universities’ law deans to discuss this and other issues. These dialogues have revealed law schools are starting to adapt to the changing landscape, for instance increasing course focus on practice specialisation. The Society will continue to work with the profession and universities on this issue.

For more information on this issue please email president@qls.com.au.

Competition review reveals need for major changeCurrent Australian laws fall short of fundamental competition legislation principles such as use of clear and concise language, allowing for as much choice and freedom as possible in the market and only prohibiting conduct that would result in a clear and substantial lessening of competition without any compensating benefit.

Queensland Law Society is pleased that the Federal government has undertaken a competition policy review, submissions for

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VICTORIA The Victorian Bar

which closed in November, with a final report expected March 2015. It is hoped the final report will, among other recommended changes:

• introduce a competition ‘effects test’ for the misuse of market power provision so the law captures conduct which has a substantial market impact and not depend upon intent;

• include clear language to make it easier for businesses to understand  their compliance obligations, and for courts to determine if anti-competitive practices have taken place;

• repeal the inappropriate provisions on price signalling and make third line forcing subject to a competition test.

The Society also supports additional funding for the Australian Competition and Consumer Commission (ACCC). The ACCC has recently suffered budget cuts yet is expected to sustain its current workload. This cannot continue and in fact, Queensland Law Society advocates for the ACCC to have enforcement powers in all aspects of the Australian Consumer Law. A single regulator would reduce red tape, duplication and costs and improve efficiency. We await the outcome of the review.

Eastern elections give voice to professionQueensland Law Society has prepared a ‘Call to Parties’ paper to Queensland political parties and current independent representatives. The paper was developed in consultation with the Society’s policy committees that comprise 300 members from across the state. Issues and responses will be published in the February edition of Proctor. Queensland’s election must be held by Saturday 20 June 2015, with the latest possible date for the writ to be issued that dissolves parliament being Monday 27 April 2015. It is unlikely to be held on the same day as New South Wales’ state election – 28 March 2015. With Victoria having just held its election, it is an important time for Eastern states to ensure the profession’s voice is heard, and receive political commitment to and action on, critical issues.

2014 Victorian Bar Chairman’s round upIn a rapidly changing legal services market, a crucial role of the Victorian Bar Council is to assist our members to demonstrate their value and standing in the profession, and to make a good business case for briefing barristers. This has been the focus of my efforts in my year as chairman.

I began the year meeting with major law firms to seek their views about the role of the Bar and the profession generally, using that feedback to shape a program with the Bar Council and the Bar Associations to foster engagement with solicitors in Melbourne and regional Victoria, corporate counsel, government solicitors and area specialists. This included networking and CPD events and attending meetings of the regional and suburban law associations and the President’s Dinner in March with guests Justice Jack Rush and the Victorian Attorney-General Robert Clark. We rounded out the year with the first ‘whole of legal profession CPD conference in Victoria with the Law Institute of Victoria and the judiciary in October. It was a great success.

The Bar has also developed stronger ties with in house counsel of major corporations and also with the major accounting firms to provide greater appreciation of the value and skill the Bar brings.

Throughout the year we have collaborated with the Clerks, Common Law, Commercial Family Law and Criminal Law Bar Associations to host events featuring leaders in the profession, including Justices and Chief Justices of the Supreme, Federal and Family Courts and eminent in-house counsel and accounting firms.

The Melbourne Commercial Arbitration and Mediation (MCAM) Centre was officially opened at the William Cooper Justice Centre at a function jointly hosted by Attorney-

General Clark, Chief Justice Marilyn Warren AC, the Victorian Bar and the Law Institute of Victoria. Timed to coincide with the 2014 APRAG conference, the Victorian Attorney General said the MCAM Centre was “an important step towards Melbourne becoming a key part of the international arbitration hub in the Asia Pacific region”.

The Bar has also established a new working group to further it’s penetration into International Arbitration in Asia and is working closely with the ABA to increase opportunities for Australian barristers to work in these evolving markets.

Two new on-line business portals are in development – one focussed on direct access and the other on direct briefing – and we have reached outside the profession to develop our relationships with the leading accounting firms.

A crucial initiative this year was the launch in October of the Indictable Crime Certificate (ICC). The ICC is a scheme for the accreditation and quality assurance of barristers undertaking indictable matters. A committee, chaired by the Honourable Geoffrey Eames AM QC, has been appointed to oversee its development and implementation. Other CPD related work has included the publication of a CPD course guide for the 2013-14 CPD year and the formation of Practice Advice Groups, and the development of uniform CPD Rules as part of the Uniform Legal Profession Law

This year saw the reintroduction of QC’s with all Victorian Senior Counsel now having the option to be appointed as Queen’s Counsel if they choose. More than 90% of the Bar who were eligible applied for letters patent to change their title to QC.

The Bar has enjoyed a very close relationship with both the State and Commonwealth Attorneys-General and are very grateful for their support of our Bar and the profession. The Bar is also extremely appreciative for the support we have received from Mark Dreyfus QC MP in his role as Shadow Federal Attorney-General and Martin Pakula MP as Shadow State Attorney-General.

The Victorian Bar now has its own portrait gallery – with the opening of the Peter O’Callaghan QC Portrait Gallery - the collection, with suitable biographies, can now also be found on the Bar’s website.

Finally, I wish to acknowledge the passing this year of one of the Legends of the Bar, Dr John McLaren Emmerson QC. John was made a Bar Legend in 2012 for his friendship and counsel and for his years of service to the Bar.

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Brian Walters QC awarded Victorian Bar Pro Bono Trophy at 2014 Victorian Bar Pro Bono AwardsBrian Walters QC has been awarded the Victorian Bar Pro Bono Trophy for his consistent pro bono commitment over more than 30 years to environmental law and human rights, at the annual Victorian Bar Pro Bono Awards in October.

Previous recipients of the Trophy have included Julian Burnside AO QC (2010), Debbie Mortimer SC (2011) and Victorian Bar Chairman Will Alstergren QC in 2012. The Awards ceremony featured special guest speaker Ron Merkel QC, well known for his commitment to pro bono and a namesake for one of the Awards. His long established commitment to social justice and human rights has included significant involvement in Indigenous rights, civil liberties and asylum seekers.

Mr Walters has worked for long periods pro bono over the course of his career, on matters ranging from police misconduct at a protest in 2010 at the Beverley Uranium Mine in South Australia, human rights principles relating to the Tyler Cassidy Coronial Inquest, leading the team fighting the deportment of Stefan Nystrom who had lived in Australia since he was 25 days old, defending environmental and peace protestors

(including former leader of the Greens Bob Brown, and Neil Smith aka ‘Hector the Protector’). He has led cases challenging issues ranging from legislation excluding the public from forests, subpoenas to psychologists and counsellors to disclose information in sexual assault cases, and freedom of information.

“Mr Walters is an exemplar of the culture and tradition of pro bono at our Bar.

“While each Award only has one winner, all nominees are representative of a thriving culture of pro bono among barristers. Without our Bar doing our part, access to justice for those who could not otherwise obtain legal help would be denied,” Mr Alstergren said.

Award categories recognise the commitment to pro bono at varying levels of seniority and time at the Bar. Award recipients for 2014 were:

Victorian Bar Pro Bono Trophy: Brian Walters QC for his outstanding pro bono contribution to environmental law and human rights;

Daniel Pollack Readers Award: Joel Silver for Pro Bono assistance to consumers in Banking Law and in volunteer work;

Ron Castan AM QC Award: David Yarrow for Pro Bono assistance in the Muckaty Station litigation in the Northern Territory;

Clockwise from above: Brian Walters QC, David Yarrow, Ron Merkel QC, Fiona Spencer

Susan Crennan AC QC Award: Kristen Walker for Pro Bono assistance in refugee, transgender and environmental issues;

Ron Merkel QC Award: Daniel Aghion for Pro Bono advice and advocacy for homeless people; and

Public Interest/Justice Innovation Award Public Interest/Justice Innovation Award: Jason Pizer QC, Emrys Nekvapil and Fiona Spencer for their work in Bare v Small, assisting an African youth who was the subject of police misconduct.

More than 1000 barristers – just over half of the Victorian Bar are formally a part of the Bar’s Pro Bono Scheme, with many more taking on pro bono work outside the scheme.

“We honour the entire commitment of our Bar to pro bono service and our long tradition of pro bono commitment. Award recipients are indeed representative of the depth of commitment to access to justice in our state by Victoria’s barristers,” Mr Alstergren concluded.

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TASMANIA Law Society of Tasmania

The Society expended considerable time and energy briefing members of the Legislative Council in respect of the Workplaces (Protection from Protesters) Bill 2014. In its original form the legislation was drafted so broadly so as to capture behaviour that could not reasonably be in the contemplation of proponents of the legislation. The Bill also contained mandatory sentencing provisions.

A large number of organisations, including the Society, opposed the Bill. The Society provided a briefing to members of the Legislative Council prior to their consideration of the Bill. lt appears likely that the Bill will be passed, however the Legislative Council has made significant amendments. Restrictions were placed on the groups to whom the legislation will apply. Importantly, the Legislative Council removed the mandatory sentencing provisions from the Bill, whilst at the same time increasing the maximum penalties.

To convince the Upper House to remove mandatory sentencing provisions was a significant victory for the opponents of the Bill. lt is not often a “law and order’’

measure in the form of mandatory sentencing is rejected by Parliament.

The challenges continue. The Sentencing Amendment (Assaults on Police Officers) Bill 2014 will soon be considered by Parliament. The Society remains resolute in its opposition to the mandatory sentencing provisions of that Bill.

The Society has begun its 2014/2015 program of capital works to its building in Hobart. One floor comprising a meeting room and a seminar room is undergoing refurbishment. Some rising damp problems inherent in a building erected in 1876 are also being dealt with.

The second component of works involving the Society’s courtyard including the building of a deck and improved visitor facilities will commence early in the New Year.

The first meeting of the new Council of the Society was held on 18 October 2014. Office bearers were elected at that meeting. The Society congratulates the following:

• Matthew Verney – President;

• David Barclay – Vice-President; and

• Rohan Foon – Treasurer.

The Society has recently been announced as the host of the Conference of Regulatory Officers in 2015. CORO brings together regulators from across Australia and New Zealand including trust account inspectors, admitting authorities, investigation and disciplinary bodies and bodies that issue practising certificates. The Society looks forward to hosting the conference and to seeing as many regulators as possible.

SOUTH AUSTRALIA The Law Society of South Australia

Law Society launches app on age of consent and sexting lawsOn 2 October, the Law Society launched an interactive app that explains South Australian laws relating to age of consent and sexting.

The Law Society of South Australia’s app, “The Naked Truth”, is aimed at educating people, particularly teenagers, about the various laws and potential pitfalls concerning underage sex and electronically sharing explicit material.

The app, which was developed with funding from the Law Foundation of South Australia Inc, contains plain english explanations of laws relating to unlawful sexual intercourse, child pornography, and indecent filming, and also features quizzes, case studies, and a guide to what can be done if unwanted images go viral, as well as a number of other interactive features.

The impetus developing the app from public comments from District Court Judges voicing their concerns about teenagers getting entangled in the criminal justice system for naive but innocent behaviour.

The new app also deals with situations where embarrassing or explicit images get shared among a large network of individuals via social media.

The response to the app has been overwhelmingly positive, with extensive media coverage and a number of agencies assisting in the promotion of the app.

The app is being promoted throughout the networks of the Courts Administration Authority’s education unit, the Department of Communities and Social Inclusion, the Department of Education and Child Development, and the South Australia Branch of the Australian Independent Schools Association, among other organisations.

Features of the app include:

• a plain-english explanation of the laws relating to the offence of ‘unlawful sexual

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WESTERN AUSTRALIA The Law Society of Western Australia

intercourse’ and a summary of offences that can land offenders on the child sex offenders register;

• a summary of the laws that could apply to sexting – namely child pornography and indecent filming laws;

• quizzes on laws that apply to unlawful sexual intercourse and sexting;

• interactive ‘Is it legal?’ feature, explaining the types of offences and penalties for unlawful sexual intercourse for people aged 17 and over, under 17, and in a position of authority;

• an FAQ on age of consent laws;

• an interactive “What if it goes viral?” feature which explores situations where unwanted images are shared on social media;

• an “Anatomy of a selfie” feature which looks at examples of selfies that are acceptable and those that could land you in trouble with the law; and

• examples of real life stories of young people getting caught up in the legal system for engaging in sexting or sexual activity.

The app is available to download on Apple and Android smartphone and tablet devices. Search for “The Naked Truth” in the App Store or Google Play.

National Legal Profession ReformOn 26 August 2014, the Council of the Society unanimously resolved to adopt the Review of the Legal Profession Uniform Law report and to accept the recommendation contained in it which is in the following terms:

That the Law Society of Western Australia recommends to the Attorney-General of Western Australia the adoption of the Uniform Law as a law of Western Australia with the following variations:

• the entrenchment of a Western Australian representative on the national Legal Services Council;

• the continuation of a local regulatory body that is run by representatives of the legal profession and that is independent of government; and

• maintenance of the following aspects Western Australian legal costs regime:

• a legal costs committee with the power to determine costs scales;

• the power of courts to make special costs orders; and

• that costs agreements that are not compliant with disclosure obligations are voidable but not automatically void.

On 2 September 2014, the report and the Society’s recommendation to the Government of Western Australia were presented to the Attorney-General. The Attorney-General is currently considering the report.

The full report is available on the Society’s website.

The Society’s response to the Law Council of Australia re-garding the National Attrition and Re-engagement Study ReportThe Society has made a submission to the Law Council of Australia in response to the National Attrition and Re-engagement Study (NARS) Report which details the Society’s position on gender diversity in the profession and recommends the promotion and facilitation of the adoption of flexible work practices within the profession, as well as the visible monitoring of gender diversity practices.

The Society supports the findings in the NARS Report in relation to role-modelling; mentoring, sponsorship and networking; financial barriers at the Bar; discrimination, sexual harassment and bullying and; empowering women.

2014 20th Anniversary Review of the 1994 Chief Justice’s Gender Bias Taskforce ReportThe Society congratulates the Women Lawyers of Western Australia on the release of the 2014 20th Anniversary Review of the 1994 Chief Justice’s Gender Bias Taskforce Report, which is available to view on their website.

The findings are clear and extremely concerning. Despite advances over time, the Report found that women still face considerable inequality in key areas including:

• accessing law and justice, as well as the court environment;

• succeeding in the legal profession;

• advancing and being appointed to the judiciary;

• as Aboriginal women and girls;

• as victims of crime, particularly as victims of sexual assault and domestic violence;

• in obtaining protection from violence through restraining orders;

• under civil laws, in education, the workplace, as care providers and as law makers;

• under the criminal law; and

• as offenders under the justice system

The 2014 Review Report sets out a clear and measurable path for positive change to address current inequalities and makes 197 recommendations covering nine broad areas under the law and justice. Eradicating inequality and achieving true gender equality will benefit not only the legal profession but the broader Western Australian community.

Vale - The Hon. David Malcolm AC CitWA KCSJ QCOn Monday, 20 October 2014 it was with great sadness that the Society learnt of the passing of the Honourable David Malcolm AC CitWA KCSJ QC. David was a giant of the Western Australian legal profession and an outstanding Australian. He will be remembered as a person of enormous intellect, energy, innovation and humanity who made an extraordinary contribution to the administration of justice and to the community of Western Australia.

2015 President AnnouncedAustralian Young Lawyer of the Year 2009, Mr Matthew Keogh, has been elected unopposed as the 2015 President of the Law Society of Western Australia. At age 33, Mr Keogh will be the youngest ever President of the Society, since it was founded in 1927.

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NORTHERN TERRITORY Law Society of Northern Territory

Preparations are well under way for the ‘Start at the Top’ Family Law Conference to be held in Darwin on 22-23 January 2015. The Society gratefully acknowledges the support of the Federal Circuit Court in making judicial officers available for this event. This year’s program covers a range of topics designed to provide participants with a practical overview, and highly specialised and topical issues in Family Law. Presentations and discussions will be led by a selection of Judicial officers, Barristers, Family Consultant and experienced solicitors.

The Law Society Northern Territory has also been busy in recent months in preparations for moves to larger premises. The new office location at Level 3, 9 Cavenagh Street, Darwin

brings the Society closer to members in a number of ways. Importantly the Society will be fitting out the premises to enable training to be conducted on the Society’s premises. It is hoped to increase opportunities for members to use Society facilities with meeting rooms soon to be available. The premises are closer to the Local Court building, Northern Territory Legal Aid Commission and Anti-discrimination Commission. We look forward to seeing members at these premises.

The Society Annual General Meeting also yielded a new Council with local barrister Tass Liveris assuming the Presidency. The AGM saw enthusiastic participation with in excess of 200 people participating in person or by proxy.

The Society also welcomes the introduction of the Northern Territory Civil and Administrative Appeals Tribunal (NTCAT) and the appointment of acting chairperson Mr Richard Bruxner. NTCAT jurisdiction will grow over time with the Society anticipating many positive flow-on effects.

The Society has also participated in the review of judicial appointments expressing a desire to ensure independence and transparency. The Society looks forward to the report of the Review panel.

The Society continues to remain concerned about cuts to funding for Aboriginal and Torres Strait Islander Legal Services. The Society understands that the intention of the announced funding cut is not to reduce expenditure on the front-line services of these agencies but to reduce expenditure on non-legal work, particularly policy and law reform advocacy. The Society is concerned that despite this stated intention these cuts will significantly reduce front-line legal assistance services and invaluable collateral assistance that these services provide.

The Society is concerned that the decision to cut funding was:

• based on a misunderstanding of funding mechanisms;

• not fully costed nor the impacts fully assessed;

• made without input from the providers or other agencies that will be impacted; and

• based on a false premise that policy and law reform is an expendable function of these agencies that costs more than it saves.

The Society will continue to raise concerns regarding this issue as many stakeholders, including Government and non-government agencies express concern at any reduction in capacity within these organisations.

Are you looking for a career in rural, regional or remote (RRR) Australia?

RRR Law is the first step towards an exciting legal career in rural, regional and remote (RRR) Australia. www.rrrlaw.com.au can link you to job opportunities and has everything practitioners need to know about legal careers in RRR Australia.

If you are looking for a career change or want to kick-start your career in a challenging, rewarding and supportive environment, then visit www.rrrlaw.com.au today.

Looking for a new legal career?

Advertising a legal job?

Is your practice looking to fill job opportunities in rural, regional or remote (RRR) Australia?

At www.rrrlaw.com.au we can help your practice connect with job seekers.

Simply register your details at www.rrrlaw.com.au/jobs to begin uploading your job opportunities.

The service is 100% free and is quick and easy to use.

www.rrrlaw.com.au

Are you looking for a career in rural, regional or remote (RRR) Australia?

RRR Law is the first step towards an exciting legal career in rural, regional and remote (RRR) Australia. www.rrrlaw.com.au can link you to job opportunities and has everything practitioners need to know about legal careers in RRR Australia.

If you are looking for a career change or want to kick-start your career in a challenging, rewarding and supportive environment, then visit www.rrrlaw.com.au today.

Looking for a new legal career?

Advertising a legal job?

Is your practice looking to fill job opportunities in rural, regional or remote (RRR) Australia?

At www.rrrlaw.com.au we can help your practice connect with job seekers.

Simply register your details at www.rrrlaw.com.au/jobs to begin uploading your job opportunities.

The service is 100% free and is quick and easy to use.

RRR Law is an initiative of the Law Council of Australia, funded by the Australian Government as part of a broader project on recruitment and retention of lawyers in RRR areas undertaken by the National Association of Community Legal Centres Inc.

www.rrrlaw.com.au

66 LAW COUNCIL REVIEW

Korea and Australia have shared a friendly history, as Law Council of Australia Treasurer, Ms Leanne Topfer,

was reminded during her visit to Seoul in early October to participate in the inaugural Australia-Korea Services Sector Promotion Forum (SSPF). The SSPF was held on 2 October in Seoul, Korea following the Australia-Korea Business Council and Korea-Australia Business Council Joint meetings (AKBC/KABC). The SSPF organised by the Department of Foreign Affairs and Trade and led by the Australian Trade and Investment Minister, the Hon. Andrew Robb MP.

The Law Council has a long history of friendly relations with the Korean Bar Association which dates back to 1998 when the two peak legal bodies entered into a Memorandum of Understanding, later reaffirmed in 2009, to strengthen legal exchange and friendly cooperation.

The sense of goodwill was felt throughout the Forum which focused on developing business-led, strategic dialogue on the opportunities and challenges for trade in services, including financial services, legal services, film services and Smart Cities. Following the signing of the Korea-Australia

INTERNATIONAL NEWS

Free Trade Agreement in Seoul on 8 April 2014, the SSPF was an important opportunity for Australia and Korean service sectors to meet with counterparts and discuss opportunities and challenges for trade integration and liberalisation.

Ms Topfer reported that at the legal services session, Korean and Australian representatives discussed opportunities for greater cooperation between Australian and Korean law firms arising from increased trade between Australia and Korea and the potential for exchanges of lawyers. Korean participants noted concerns about the impact of the entry of foreign lawyers from Australia, Europe and the United States on the difficult local market for Korean qualified lawyers. Ms Topfer emphasised that Australian law firms pose no threat to domestic law firms practising Korean law. It was also noted by Australian participants that the entry of international and global law practices into Korea should, as it has done elsewhere, increase opportunities for local lawyers, particularly in the areas of litigation and dispute resolution. It was agreed that close collaboration would be beneficial and that further discussions should take place.

Another SSPF is planned to be held in 2015.

MARKET ACCESS TALKS IN SOUTH KOREA

MARKET OPENThe South Korean legal services market will be gradually liberalised through the Foreign Consultant Act in the following phases:

Phase 1 – applicable for the first two years after entry into force of the relevant free trade agreement. Foreign legal consultant offices (FLCOs) are not permitted to employ Korean-qualified lawyers, nor to enter into joint venture arrangements with Korean law firms, nor to share profits with Korean firms.

Phase 2 – applicable after two years from entry into force of the relevant free trade agreement and up to five years from entering into force. FLCOs are permitted to share profits with Korean firms, involving a combination of Korean and foreign laws, providing they follow the certain disclosure and registration requirements.

Phase 3 – applicable after five years from entry into force of the relevant free trade agreement. FLCOs are permitted to enter into joint venture arrangements with Korean firms.

More than 6,000 legal professionals from 130 countries converged in Tokyo on 19-24 October 2014 for

the International Bar Association (IBA) Annual Conference. Across 200 sessions, more than 800 speakers from international organisations shared their insights on current global legal issues. They covered virtually every aspect of law and justice, from the challenges of social media and the digital age in the workplace to pursuing and defending price-fixing and other investigations and claims in an inter-connected financial world.

A delegation from the Law Council of Australia, led by its President, Mr Michael Colbran QC, attended the Conference and took the opportunity to participate in side meetings with representatives from international and regional peak legal professional associations and agencies, including United Arab Emirates government officials and members of the German Bar Association, Japan Federation of Bar Associations and the Korean Bar Association.

BIG IN JAPAN – THE IBA CONFERENCE IN TOKYO

The Australian contingent was strong at the Conference, testament to the many Australians who participate in the IBA’s divisions and committees. Key Australians are noted on page 69 and include Ms Margery Nicoll, Law Council Deputy Secretary-General and Director, International, and incoming Chair of the Bar Issues Commission (BIC) which represents the IBA’s 207 member bar associations, and Mr Stephen Macliver, incoming Chair of the IBA Public and Professional Interest Division.

Mr Russell Miller AM is also the Chair of the BIC International Trade in Legal Services Committee, which launched its Global Cross-Border Legal Services Report on Tuesday 21 October. The Survey seeks to identify the current status of international legal practice and to create an internet-accessible database of the relevant rules in a variety of jurisdictions. The Report provides comprehensive information on cross-border legal services in more than 90 jurisdictions,

IBA member countries and their constituent states and territories.

As has become tradition at IBA Annual Conferences, the Law Council hosted a Reception for Australians and invited international guests. The Reception was held at the Australian Embassy in Tokyo on Thursday 23 October. The Reception was well-attended by Australian Conference delegates, including a number of high profile guests such as the Australian Ambassador Mr Bruce Miller. The Law Council wishes to acknowledge the work of its International Law Section and, in particular, Mr Fred Chilton, for coordinating the evening.

The prominence of Australians within the IBA and the popularity of events such as the Australian Reception emphasise the Law Council’s strong relationship with the IBA, which will expand over the next three years with Sydney set to host the IBA Annual Conference in October 2017.

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UNPRECEDENTED NUMBER OF AUSTRALIANS WITHIN THE IBA

T he Law Council of Australia’s long involvement with the IBA dates back to the early 1980s, when its newly

formed Business Law Section forged a strong relationship with what was then the IBA’s Section on Business Law. The bond was cultivated in those early years by the Chairs of the day, in particular Mr Russell Miller AM, Mr Alan Cameron and Mr Alan Limbury.

Upon the creation of the International Strategy Working Group in 2003, the Law Council began to strategically seek opportunities for Australian lawyers and the Law Council to raise the profile of the Australian legal profession globally. The development of a coordinated approach to international issues has proven to be extremely successful for the Law Council and has greatly enhanced both the reputation and prestige of Australian lawyers on the international stage.

In 2002 to 2004, the IBA underwent a substantial restructure to reflect the concern that the IBA was not properly looking after the needs of its various law society and bar association members (Member Organisations).

The restructure saw the creation of two new Divisions:

• the Legal Practice Division (LPD) which focuses on legal practice for individual lawyers in different areas of law with over 100 specialist committees;

• the Professional & Public Interest Division (PPID) which concentrates on professional and public interest activities of the legal profession throughout the world through its constituent bodies, the Bar Issues Commission (BIC),the Human Rights Institute (HRI) and the Section on Public and Professional Interest (SPPI).

The activities of the IBA’s more than 200 Member Organisations were catered for through the establishment of the BIC.

The goal of the BIC was promoted as providing a forum for Member Organisations to discuss issues of common interest. It now presents programs at annual conferences and Council Meetings and prepares, through its Policy Committee, resolutions on matters of relevance to the Member Organisations for consideration by the IBA Council.

NEVER BEFORE HAVE SO MANY AUSTRALIANS BEEN REPRESENTED WITHIN THE INTERNATIONAL BAR ASSOCIATION (IBA) AS OFFICEHOLDERS, REFLECTING THE LAW COUNCIL OF AUSTRALIA’S 30-YEAR HISTORY WITH THE PEAK GLOBAL BODY.

AUG - DEC 2014 69

UNPRECEDENTED NUMBER OF AUSTRALIANS WITHIN THE IBA

Following this restructuring, it became obvious that the IBA had an increased relevance to the Law Council and that the development of the Bar Issues Commission and its Policy Committee provide a forum in which Australian legal practitioners should be represented. The subjects under discussion are those which have enormous importance for the legal profession.

With the importance of the IBA having been re-established, the Law Council Executive decided that the two nominees called for by the IBA should be the President of the day and in addition a member of the Executive to be responsible for regular attendance and commentary on issues as they arose. This responsibility was given to Mr John Corcoran, Executive Member of the International Law Section and Chairman, Russell Kennedy Lawyers, who has regularly participated in IBA meetings since 2005.

In 2008, Mr Corcoran was elected to the IBA Management Board representing the Member Organisations for a term of four years which concluded in 2012. Mr Corcoran continues to be the primary representative of the Law

Council at the two IBA Council meetings each year and is currently a Council Member of the LPD representing the interests of the BIC, the HRI and the SPPI. Also serving on the LPD Council is Mr Peter Bartlett of Minter Ellison and Mr John Williamson-Noble from Gilbert and Tobin. Mr Bartlett is also a member of the Management Board. From 1 January 2015, Mr Bartlett will be the Assistant Tresurer on the LPD Executive, the Council, the Management Board, Audit Committee, Risk Management and other Committees.

Ms Margery Nicoll, the Law Council’s Deputy Secretary-General and Director, International, was invited by the IBA to be a founding member of its Policy Committee. From this position, Ms Nicoll was invited to become an Officer-at-Large of the BIC. In 2010, she was appointed Vice-Chair of the BIC. She currently serves as:

• Senior Vice-Chair of the BIC (finish 31 December 2014);

• Chair of the BIC Policy Committee (finish 31 December 2014); and

• Officer of the PPID Steering Group (finish 31 December 2014).

CURRENT STRUCTURE OF THE IBA

From January 1 2015, Ms Nicoll will become the Chair of the BIC until the end of 2016 and will join the Management Board.

Other notable officeholders include:

• Mr Stephen Macliver of Sparke Helmore, incoming Chair of the SPPI. Mr Macliver is also a member of the Management Board;

• Former Justice of the High Court of Australia, Michael Kirby, member of the HRI Council until 31 October 2016.

Australians also serve on an additional 24 IBA committees, forums and Sections within the LPD and the PPID including His Honour Justice Martin Daubney of the Queensland Supreme Court who heads up the IBA’s judicial forum.

With the IBA Annual Conference bringing an estimated 6000 lawyers to Sydney in October 2017, the Law Council will be heavily involved in planning the event, thereby strengthening existing ties with the peak international legal professional association.

INTERNATIONAL NEWS

The three-day event commenced with a cocktail function that saw the usual flurry of business card exchange where

lawyers, judges and legal academics from countries and cultures as far removed from one another as Switzerland and Myanmar met to share mutual interests and experiences.

The Conference work program had a primarily business law focus that appealed to commercially-oriented practitioners, coupled with plenary and work sessions that encouraged delegates to contemplate the role that the profession plays in the more general aspects of corporate social responsibility and human rights in the Asia Pacific region.

This combination is a hallmark of LAWASIA events and in Bangkok, it was very well-received. Added to this mix were sessions on issues for bar associations, an examination of

discriminatory laws and anti-corruption measures in the region.

His Excellency, Professor Atthaniti Disatha-amnarj, His Majesty, the King of Thailand’s Privy Councillor for legal affairs, welcomed delegates to Thailand during an opening ceremony that also included addresses by LAWASIA President Mr Isomi Suzuki (Japan) and Mr Dej-Udom Krairit, President, Lawyers Council of Thailand.

Notably, His Excellency Professor Sansern Kraichitti, one of the Thai delegates at the inaugural LAWASIA Conference in 1966 arranged by the Law Council of Australia in Canberra, attended the opening session and recalled early LAWASIA days to delegates.

Other sessions covered environmental law, foreign direct investment opportunities in ASEAN, data protection, family law, franchising and the ASEAN economic community, surprises in cross-border mergers and acquisitions, taxation law, regulating Asia in banking and finance as well as intellectual property and other topics of current interest. Given the advent of the ASEAN Economic Community, much of the discussion in work

sessions centred around this aspect.

LAWASIA was honoured by the attendance of the Chief Justice of the

Australia Federal Court, the Hon. James Allsop AO. It was equally

privileged to have contribution from the Hon. Thomas Bathurst AC,

Chief Justice of New South Wales, who led discussion in a

session focused on improved resolution of

environmental

LAWASIA’s 27th Conference, held in Bangkok on 3-6 October 2014, ensured an opportunity for a truly international exchange of legal views, information and experiences.

IN B

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70 LAW COUNCIL REVIEW

AUG - DEC 2014 71

disputes by judicial specialisation, arranged and also addressed by the Chief Judge of the Land and Environment Court of New South Wales, the Hon. Justice Brian Preston SC. Justice Julie Ward from the NSW Supreme Court shared her views in a paper presented at the session on discriminatory laws.

The President of the Law Council, Mr Michael Colbran QC, was among the panellists in the session that focused on bar issues, joined by bar representatives from the Maldives, Malaysia and Germany.

Dr Sriprapha Petcharamesree from Thailand’s Mahidol University and the ASEAN Inter-governmental Commission on Human Rights delivered the first Conference plenary address, chaired by the Hon. Chief Justice Bathurst, with her paper considering whether there was any possibility of establishing a human rights based corporate social responsibility approach to economic development in ASEAN. Senior Advocate from India, Mr Kottayan Katankot Venugopal, delivered the annual G.L Sanghi address on the topic Poverty as an Assault on Human Rights, following and dovetailing into Dr Petcharamesree’s presentation

A high point for all delegates was the opportunity to hear the Hon. Michael Kirby, former Australia High Court judge and, more recently, Chair of the United Nations Commission of Inquiry into Human Rights Abuses in the Democratic Peoples’ Republic of Korea, speak about his report and reactions to it, culminating in his call to the Asia and Pacific legal community to take achievable steps to see that conditions in the DPRK could and would change.

The title of Mr Kirby’s address, UN Commission Report DPRK – A Special Challenge For Asia’s Lawyers left the audience in no doubt of where responsibilities to take up this challenge lay. His remarks earned him a well-deserved standing ovation.

No LAWASIA Conference is complete without social occasions and delegates ended a

dinner cruise along Bangkok’s Chao Phraya River with an energetic bout of Bollywood and Gangnam-style dancing. The Conference dinner the following evening saw cultural performances of traditional Thai Khon drama and a recital by renowned Thai jazz musician, Metawat Sapsanyakorn.

As in all its events, this LAWASIA Conference was inclusive of views primarily from the Asia Pacific region but also included speakers from the UK, the US and Europe. With an attendance of 250 professionals from 23 countries and territories, it ensured that today’s global legal landscape was well-covered in the Conference discussion.

At the closing ceremony, Sydney was announced as the venue for the 28th LAWASIA Conference, to be held from 6-9 November 2015. A stimulating program of both national and international relevance is being planned.

LAWASIA COUNCIL MEETINGImmediately preceding the Conference, LAWASIA held its annual Council meeting which saw attendance of bar leaders from some 17 jurisdictions of the Economic and Social Commission for Asia and the Pacific (ESCAP) region.

Among the issues debated was professional mobility of lawyers in Asia and the Pacific, with discussion prompted as an initiative of the Law Council. Its President, Mr Colbran, and Chair of the International Law Section Dr Gordon Hughes promoted this discourse as a mechanism to work towards a regionally-agreed set of aspirational principles representing an agreed position of the peak legal bodies of the ESCAP region that would equally inform regulators and legislators of the profession’s views.

The Council meeting was also an opportunity for bar leaders to develop their understanding of a number of matters of concern arising in various jurisdictions, including judicial appointments in India, repeal of the Sedition Act in Malaysia and threats to independence of the judiciary and the Bar in Sri Lanka.

LAWASIA INTERNATIONAL MOOT COMPETITIONNow an integral part of the overall Conference experience, the annual LAWASIA International Moot Competition proceeded in Bangkok concurrently with the Conference, and hosted by the Faculty of Law at Chulalongkorn University. It has become tradition for the final round to form a part of the Conference program, for the interest of Conference delegates.

LAWASIA Moot Committee Chair Mr Raphael Tay and his voluntary team produced another excellent competition with awards presented during the Conference closing ceremony. Singapore Management University emerged as LAWASIA Champion Oralist team, with one of its members, Mr Mohammad Muzhaffar Bin Omar, taking out the Best Oralist award. Runner-up was the team from the Chinese University of Hong Kong and the Best Memorial award went to INTI University, Malaysia. The Best Endeavour prize was won by Hidayatulah National Law University, Raipur, India and Australia’s Monash University was given the Spirit of LAWASIA prize, an award that recognises the LAWASIA spirit and values of fellowship, scholarship, and amity.

In addition to congratulating the awardees, moot organisers were generous in their thanks to a large panel of judges, many of whom were Conference delegates who took time out of their Conference schedule to support the mooting endeavours of the region’s law students in this capacity.

Clockwise from top: LAWASIA Council,

The Hon Michael Kirby AC CMG,

Chief Justice Bathurst

INTERNATIONAL NEWS

72 LAW COUNCIL REVIEW

On Wednesday 24 September 2014, the Law Council of Australia’s London Chapter hosted a lecture by the

Honorable Michael Kirby AC CMG. The event took place at Linklaters, and was co-hosted by the UK Chapter of the Anglo Australasian Lawyers Society.

London’s Australian legal community, including Australian High Commissioner to the United Kingdom, Mr Alexander Downer AC, extended a very warm welcome to Mr Kirby, as did a number of British supporters, including Justice of the Supreme Court of England and Wales, Lord Mance, and one of the UK Patrons of the Anglo Australasian Lawyers Society, Court of Appeal Justice and Head of International Judicial Relations for England and Wales, Lady Justice Arden.

Mr Kirby’s lecture entitled ‘From the High Court of Australia to Human Rights in North Korea’, focused on the creation, operation and findings of the UN Commission of Inquiry established in 2013 to investigate human rights violations in the Democratic People’s Republic of Korea (North Korea), with a view to ensuring full accountability of those responsible. A former Australian High Court Justice, Mr Kirby was appointed by the President of the UN Human Rights Council to chair this three-person commission in May 2013. On 17 February 2014, after months of intensive evidence gathering, the Commission of Inquiry released its report, documenting the overwhelming evidence of systematic, widespread and grave human rights abuses perpetrated on a grand scale by a ‘totalitarian state’ against the people of North Korea.

FROM THE HIGH COURT OF AUSTRALIA TO HUMAN RIGHTS IN NORTH KOREA:

A Conversation with the Honourable Michael Kirby AC CMG

It was of particular interest to those attending the lecture to receive Mr Kirby’s insights into the Commission of Inquiry’s commitment to transparency and openness, as well as the Commission’s importation of general common law traditions into its investigative and reporting processes. Mr Kirby emphasized the importance to the Commission members of maintaining principles of procedural fairness and due process. In this respect, Mr Kirby’s common law judicial background was influential as the Commission was highly aware of the need for reliable testimony, obtained in an appropriate manner. Accordingly, the Commission conducted public hearings in Seoul, Tokyo, London and Washington DC. In keeping with the common law traditions, witnesses were affirmed, led through their statements, and asked non-leading questions. These public hearings were attended by members of the press and the hearing was recorded and uploaded to the internet. The Commission further invited members of the North Korean leadership to attend the hearings, to provide their own

evidence, and to ask question witnesses. These invitations were refused.

Mr Kirby also shared his observations and aspirations concerning the response of the international community to the Commission’s findings. Mr Kirby identified a number of very important benefits which emerged from the Commission’s work. One of the benefits was the development of a methodological approach for similar commissions of inquiry, using the common law traditions to inform processes and the widespread dissemination of evidence concerning North Korea’s human rights violations.

Those who attended Mr Kirby’s lecture were privileged to receive insights into the processes of the United Nation Commission of inquiry and into the circumstances of life in the Democratic People’s Republic of Korea. We will follow with keen interest the ongoing response of the international community to the findings of the UN Commission of Inquiry into North Korea, and we will take particular interest in Mr Kirby’s role in this process.

In addition to thanking Mr Kirby for a fascinating and informative evening, particular thanks must go to Linklaters for hosting the event, and for providing the reception following the lecture. Gratitude must also be expressed to Ms Anne Bodley, Convenor of the Law Council of Australia’s London Chapter, and Mr James Drake QC, Chair of the UK Chapter of the Anglo Australasian Lawyers Society, as well as Linklaters Partner, Ms Nicole Kar, and Deputy Convenor of the Law Council of Australia’s London Chapter, Ms Verity Doyle, for their efforts in organizing this fantastic event.

Mr Michael Kirby and London Chapter Convenor, Ms Anne Bodley, with attendees at the event.

AUG - NOV 2014 73

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The Criminal Law and Human Rights Division’s work involves advocacy and policy development concerning national criminal law issues and both national and international human rights issues. The Division receives valuable assistance from Constituent Bodies and Law Council Committees in undertaking this work.

Some important recent developments for the Division include the inquiries by the Parliamentary Joint Committee on Intelligence and Security (the PJCIS) into the National Security Legislation Amendment Bill (No. 1) 2014 and the Crimes Legislation Amendment (Foreign Fighters) Bill 2014; and ongoing advocacy with respect to asylum seekers.

Submission on the National Security Legislation Amendment Bill (No. 1) 2014 On 16 July 2014 the Commonwealth Government introduced the National Security Legislation Amendment Bill (No. 1) 2014 (the NSLA Bill) into the Senate. The Bill was subsequently passed by both houses on 1 October 2014. The NSLA Bill included a number of measures to expand the powers of intelligence agencies and enable increased cooperation between Australia’s intelligence community.

The Law Council appeared before the PJCIS’s hearing on 18 August 2014 following its submission on the NSLA Bill on 6 August 2014. The Law Council raised a number of issues with the Bill, including:

• the proposed special intelligence operations scheme which provides for criminal and civil immunity for ASIO officers and other human sources who become involved in criminal activity during the course of an undercover operation;

• proposed new offences (and increased penalties for existing offences) concerning unauthorised disclosure or unauthorised dealings with intelligence information;

• certain features of proposals regarding ASIO’s warrant powers including the ability of ASIO to access an innocent third-party’s computer or an entire computer network or to disrupt such systems to target a suspect; and

• amendments which will expand the powers of the Australian Secret Intelligence Service to collect intelligence on Australian persons overseas without Ministerial authorization and based on a request by ASIO.

The Law Council submitted that the NSLA Bill not be passed in its current form. If this recommendation was not accepted, the Law Council recommended that the Bill could be enhanced by increasing its number of safeguards to protect against undue interference with fundamental rights and freedoms, including fair trial rights, the right to privacy and freedom of expression.

The PCJIS made several recommendations relating to the Bill, including some which accorded with the Law Council’s submissions such as strengthening the authorisation process for a special intelligence operation and its oversight mechanisms, providing an exception for the proposed offence of unauthorised disclosure of a special intelligence operation where such a disclosure was made in the course of seeking legal advice.

The NSLA Bill was subsequently amended, passed in both houses and received Royal Assent on 2 October 2014.

DIVISION OVERVIEWS

The Criminal Law and Human Rights Division’s work involves advocacy and policy development

concerning national criminal law issues and both

national and international human rights issues. The Division receives valuable

assistance from constituent bodies and Law Council

committees in undertaking this work.

CRIMINAL LAW & HUMAN RIGHTS

DIVISION

AUG - DEC 2014 75

Submission on the Crimes Legislation Amendment (Foreign Fighters) Bill 2014The Law Council of Australia appeared before the Parliamentary Joint Committee on Intelligence and Security hearing on 3 October 2014 following its submission on the Counter-terrorism Legislation Amendment (Foreign Fighters) Bill 2014.

Led by a member of its National Criminal Law Committee member, Mr Phillip Boulten SC, the Law Council recommended several amendments to the Bill to ensure its likely effectiveness and adequate protection of the rule of law and the rights and freedoms of Australians.

The Parliamentary Joint Committee made 37 recommendations – 19 of which either partially or fully adopted a number of the Law Council’s recommendations relating to the Bill, including:

• ensuring that information obtained from a foreign country under torture or duress, directly or indirectly, will not be admissible in an Australian court;

• clarifying the meaning of the terms ‘encourage’, ‘promotion’ and ‘advocacy’ with regard to the proposed ‘advocacy of terrorism’ offences;

• introducing certain safeguards in respect of Customs’ expanded detention powers;

• reducing the proposed extension of sunset clauses for a range of ASIO and AFP powers;

• replacing the definition of ‘subverting society’ by a cross-reference to the conduct contained in the definition of ‘terrorist act’ in the Criminal Code;

• requiring that a control order can only be based on a foreign conviction where the conduct giving rise to the conviction would constitute a terrorism related offence in Australia; and

• ensuring that powers to cancel an individual’s welfare payments are subject to certain criteria and ongoing review.

Ongoing advocacy with respect to asylum seekersOn 5 September 2014 the Law Council appeared before the Senate Legal and Constitutional Affairs Legislation Committee (the Committee) to give evidence at a Hearing into its Inquiry into the Migration Amendment (Protection and Other Measures) Bill 2014 (the Bill). The key amendments to the Migration Act 1958 (Cth) that are proposed by the Bill relate to the process and procedures that apply to the assessment of protection visas; the threshold test for when Australia’s non-refoulment (or non-return) obligations under the International Covenant on Civil and Political Rights or the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment are invoked (known as complementary protection) and the operation if the Migration Review Tribunal and Refugee Review Tribunal.

The Law Council was represented at the hearing by Carina Ford, a migration law expert and member of the International Law Section’s Migration Law Committee.  At the hearing, the Law Council raised concerns that the proposed changes, though designed to promote efficiency in the protection visa system, may in fact give rise to unfairness and uncertainty and risk breaching Australia’s relevant international obligations to provide protection for those genuinely fleeing persecution or other forms of serious harm. It also took Questions on Notice relating to the issue of the proposed retrospective application of the Bill; and whether or how the harsher impacts of retrospectivity could be addressed without undermining the primary rationale of the Bill. These questions formed part of the Law Council’s supplementary submission.

On 6 September 2014, the Directors of the Law Council of Australia approved the Law Council’s Asylum Seeker Policy. The Policy was prepared at the direction of the Law Council’s Executive. It has been developed in close consultation with the Law Council’s National Human Rights Committee, its Constituent Bodies and other expert Committees. The Policy reflects a consolidation of the Law Council’s existing positions on laws and policies concerning asylum seekers and builds upon the Law Council’s existing Rule of Law Principles and Principles Applying to the Detention of Asylum Seekers.  The Policy is a statement of key principles relating to asylum seekers. It will provide the Law Council with a framework to guide its future advocacy on legislation and policy concerning asylum seekers. The Policy is designed to be a statement of key

principles and will provide a framework to guide the Law Council’s future advocacy on legislation and policy concerning asylum seekers. The Criminal Law and Human Rights Division looks forward to utilising this Policy in its ongoing advocacy in this area.

On 30 October 2013, the Law Council provided a submission to the Committee on the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) (Caseload Bill). The Caseload Bill amends the Migration Act 1958 (Cth), the Migration Regulations 1994 (Cth); the Maritime Powers Act 2013 (Cth), the Immigration (Guardianship of Children) Act 1946 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Law Council has several concerns with the Caseload Bill, including: the extension of powers to stop asylum seeker boats at sea, including the restriction of the court’s capacity to invalidate government actions at sea and the suspension of Australia’s international obligations; changes to the description of ‘refugee’ and the replacement of definitions from the Convention relating to the Status of Refugees; changes which are likely to result in the contravention of the principle of non-refoulement; the reintroduction of the Temporary Protection Visa and the creation of the Safe Haven Enterprise Visa; the creation of a new system of ‘fast-track processing’ of protection claims and a new fast-track review process which excludes some applicants from review altogether, require claims to be referred to the IAA by the Minister, strictly limit the circumstances in which new material can be considered, and remove the right to a review hearing; and changes to the legal identity of babies born in Australia to parents who arrived by sea after 13 August 2012 which make such children subject to transfer to an offshore processing country.

76 LAW COUNCIL REVIEW

DIVISION OVERVIEWS

The Law Council’s CivilJustice Division provides legal policy advice and

engages in advocacy across a broad range of

government portfoliosand legal practice

areas.

CIVIL JUSTICE DIVISION

The Civil Justice Division has continued to work on a number of major projects and inquiries over the second quarter of 2014. Major projects included the next phase of work for the National Attrition and Re-engagement Study (NARS), the Australian Law Reform Commission (ALRC) Inquiry into Equality, Capacity and Disability in Commonwealth Laws and a submission to Federal Treasury in relation to the 2015-16 Federal Budget.

National Attrition and Reengagement Study (NARS)The Civil Justice Division continued to work on the NARS over the last quarter following the launch in March 2014 of the Final Report and Discussion Paper, including reviewing and collating the extensive feedback received through its consultation process with Constituent Bodies concerning the NARS Report, Discussion Paper and initiatives being progressed in various jurisdictions to address the issues identified.

As a result of the feedback collected and the advice of Directors, the Law Council has resolved to explore hosting a one-day symposium inviting representatives from all Constituent Bodies and other relevant experts and cohorts to work through key areas for action identified in the Discussion Paper and identify achievable actions and targets for the Law Council, each Constituent Body and others to undertake. The Law Council oversees this event including representatives from all Constituent Bodies, experts in the fields of diversity and management, representatives from small, medium and large law firms and other relevant cohorts such as young lawyers and lawyers working in rural/regional/remote areas of Australia.

The Law Council will continue working with its Constituent Bodies to develop the symposium and a strategy for the legal profession with a view to driving cultural and systemic changes that improve retention rates among women lawyers and re-engagement of those who have left the profession.

Australian Law Reform Commission (ALRC) Inquiry into Equality, Capacity and Disability in Commonwealth Laws The then Attorney-General, the Honourable Mark Dreyfus QC MP, gave the ALRC the reference to inquire into and examine Commonwealth legal frameworks that deny or diminish the equal recognition of people with disability before the law.

The terms of reference state that the ALRC should have regard to the United Nations Convention on the Rights of Persons with Disability (CRPD), which Australia ratified in July 2008, in conducting the Inquiry.

The Commission released a Discussion Paper in May 2014 which contained a number of proposals that emphasise the will, preferences and rights of persons with disability which marks a paradigm shift away from substituted decision-making models in accordance with the CRPD.   

The Law Council welcomed a number of the Commission’s proposals but raised concerns that these proposals will be ineffective without adequate resources to support the implementation and oversight of these proposals. For example, the Law Council strongly suggested that the Commission examine the impact of chronic underfunding of legal assistance sector services on the ability of people with disabilities to enforce their will, preferences and rights and to ensure that people with disabilities have recourse to legal representation to safeguard their rights which are often violated.     

People with disability are identified by the Legal Australia-Wide (LAW) Survey report by the New South Wales Law and Justice Foundation as being among those with the most significant unmet legal need in the Australian community. The LAW survey found that people with a disability had significantly higher prevalence of legal problems overall, substantial legal problems, multiple legal problems and problems across a broad range of legal areas.

The Law Council recommended that the Commission examine the impact of funding cuts to legal assistance sector services on people with disability.

AUG - DEC 2014 77

INTERNATIONAL DIVISION

The Law Council, as the nation’s peak legal body, represents the Australian legal profession overseas,

and maintains close relationships with legal

professional bodies throughout the world.

2015-16 Federal Budget submissionAt the time of preparing Law Council Review, the Law Council was on the verge of making a submission in relation to the 2015-16 Federal Budget, with a focus on the economic benefits of legal assistance sector funding, federal courts funding and the deleterious impact underfunding of the justice sector over many years has had on economic growth and government debt.

It is important to draw attention to these matters. While the government has identified as its priority reducing the Federal Budget deficit, successive governments have continued to ignore the downstream savings which can be achieved by governments which invest in services that facilitate early intervention and prevention of legal problems. These savings are real, significant and have been identified actuarially in a range of jurisdictions, including Australia, the United States and the United Kingdom.

Most recently, the Productivity Commission has acknowledged these savings in its Report on Access to Justice Arrangements. It has noted that the cost to benefit ratio is weighted heavily in favour of greater investment in legal assistance services. While PricewaterhouseCoopers has identified cost savings in the range of $1.60 to $2.65 for every dollar invested in legal aid, all other relevant studies have estimated that the downstream savings are much higher.

The Budget submission is available on the Law Council website and all practitioners are invited to read and comment on it.

International StrategyThe goals and objectives of the Law Council’s proposed International Strategy for 2015-2016 were approved by the Law Council Directors on  29 November 2014. The Strategy will seek to guide the international activities of the Law Council through its International Division and International Law Section. One of the central goals of the Strategy will be to promote the interests of the Australian legal profession internationally through, for example, expanding practice rights in new and existing markets. Through the Strategy, the Law Council will also seek to promote and uphold the rule of law internationally with particular focus on the Asia-Pacific region.

The Strategy is being developed by an International Strategy Working Group, which will now develop initiatives and actions for consideration by the Directors at its meeting next March.

PILONIn meeting its international obligations set out in the 2014 International Strategy, the Law Council recently attended the Pacific Islands Law Officers’ Network (PILON) Annual Meeting on 11-12 November 2014 where key legal issues in the region are discussed by senior public law officers from up to 17 member countries. Housed within the Law Council Secretariat, the South Pacific Lawyers’ Association (SPLA) earned observer status at the recent Meeting, allowing the SPLA to attend the PILON event each year. These meetings provide the SPLA with a valuable opportunity to liaise directly with senior law officers from member countries and to seek and share information on law and justice initiatives in the region.

The Law Council’s Senior Policy Lawyer and SPLA Administrator, Mr David Naylor, attended the Meeting held in Tarawa Kiribati under the theme ‘Combating Environmental Crime in the Pacific: Issues and Best Practices’ where he presented a paper on the upcoming South Pacific Model Conduct Rules Report (see page 77 for more details).

78 LAW COUNCIL REVIEW

REGULATORY POLICY AND

RESEARCH DIVISIONThe Regulatory Policy and Research Division works to

improve the regulatory environment by promoting

effective and coherent regulation of the Australian

legal profession

Anti-Money Laundering and Counter-Terrorism Financing RegimeThe significant level of assessment review and amendment of Australia’s legislative Anti-Money Laundering and Counter-Terrorism Financing (AML/CTF) scheme seen at the beginning of 2014 continued:

• Financial Action Task Force (FATF) Mutual Evaluation In Country Assessment July- August; and

• AUSTRAC Industry Contribution – Discussion Paper June 2014 and Consultation Paper September 2014.

The Law Council was invited to meet with the FATF’s Mutual Evaluation Assessment Team in July 2014 and agreed to facilitate the FATF Team’s meetings early in August with legal practitioners, specialising in property law and company formation work, respectively. The FATF’s Mutual Evaluation of Australia will feed into the Report of the Statutory Review of the AML/CTF Regime. The Report expected to be tabled in Parliament early in 2015, fuels concerns it will provide the Government with opportunity to re-enliven its longstanding intention to implement Tranche 2 reforms. The Law Council is by no means the only jurisdiction that opposes the AML/CTF

regulation of legal practitioners as reporting entities. Thus, the Law Council has strengthened relations with some of its international counterparts including for example, the American Bar Association’s Taskforce on Gatekeeper Regulation and the New Zealand Law Society.

At present the regulatory aspects of the AML/CTF regime has limited application to the legal profession. Apart from cash transaction reporting obligations for amounts of $10,000 or more, the regime applies to legal practitioners only so far as they are also financial services licensees providing relevant designated services (primarily financial services provided by financial institutions). The question is whether the reach of the regime should be extended by expanding the scope of what constitutes designated services, and the regulation of the providers of those services. The so-called Tranche 2 measures would likely affect much of the legal profession, potentially leading to record-keeping, customer due diligence and reporting obligations, including suspicious matter reporting.

The Law Council presented its concerns for the impact of Tranche 2 on legal practitioners at the Anti-Money-Laundering Summit in Sydney in September 2014. If extended to legal practitioners, Tranche 2 reforms (pursuant to which legal practitioners become reporting entities), would place legal practitioners in an impossible position of conflict. The Law Council advocates there is a need to preserve the independence of the legal profession and legal practitioners’ well established duties to their clients, the court and the public through the existing comprehensive legal profession regulation that gives primacy to the inherent powers of the Supreme Court and the rules of professional conduct.

The Law Council’s view is that the better approach to guarding against the risk that law practices might be unwittingly used for nefarious purposes is through continuing education and practical guidance on risk and risk management strategies designed to mitigate the evolving threat.

As at the date of writing, the Law Council is finalising a submission on the AUSTRAC’s Industry Contribution. The effect of AUSTRAC’s change in charging policy transitions the funding of AUSTRAC from a cost recovery model to an industry contribution that by 2017 will make reporting entities financially responsible for 100 per

cent of AUSTRAC’s budgeted operational expenditure.

Legal Profession Uniform LawLegislation establishing the uniform scheme of legal profession regulation across Victoria and New South Wales has now been enacted with the new scheme due to start in 2015. A common legal services market across New South Wales and Victoria will be achieved through the Legal Profession Uniform Law, Uniform Rules and the work of the new inter-jurisdictional bodies.

In early September the Law Council welcomed the appointment of former head of the Australian Government Solicitor, Dale Boucher, as the inaugural Commissioner for Uniform Legal Services Regulation. This was followed in October by the announcement that former Federal Court Chief Justice the Hon. Michael Black AC QC accepted the role of inaugural chair of the Legal Services Council. The Legal Services Council will play a key role in the uniform legal services scheme, overseeing the implementation of the Legal Profession Uniform Law to ensure its consistent application across the participating jurisdictions, New South Wales and Victoria.

Early in November, the Law Council forwarded to the Commissioner of the Uniform Legal Services Council, drafts of proposed Uniform Rules of Legal Practice, Professional Conduct and Continuing Professional Development approved by the Law Council, Law Institute of Victoria and Law Society of New South Wales.

As reported previously, the Law Council established a Working Group to develop Uniform Legal Practice Rules and Uniform Continuing Professional Development Rules, as well as to assist with the development of other Rules and Guidelines as required. The provision in November of the draft Uniform Rules to the Commissioner marks a new era of regulatory co-operation and is a significant step towards a unified legal profession in the two largest jurisdictions in Australia.

The Law Council has recently released materials for receiving consultation on the proposed Legal Practice Rules, Continuing Professional Development Rules, and Legal Profession Conduct Rules for Solicitors. To provide feedback and to obtain more information about the consultation, please visit the Law Council’s website.

DIVISION OVERVIEWS

AUG – DEC 2014 79

Since the July issue of Law Council Review was published, the Business Law Section (BLS) has lodged 30 submissions on a number of topics including:

• the Federal Government’s Competition Policy Review;

• the Statutory Review of the Personal Property and Securities Act 2009;

• the Federal Court’s and the Federal Circuit Court’s proposed amendments to their bankruptcy rules;

• the interim report of the Financial Services Inquiry; and

• the winding up of the Companies and Markets Advisory Committee (CAMAC).

The BLS has been a strong advocate against the winding up of CAMAC on the basis that the decision has failed to recognise the importance for the Australian economy of the exceptional contribution CAMAC has made over its lifetime to practical, effective corporate and market regulation.

Except where bound by confidentiality, copies of BLS submissions can be accessed through the Law Council’s website.

Since July, BLS representatives have participated in 11 external meetings, including a Senate Economics Public Hearing on the Competition and Consumer Amendment (Misuse of Market Power) Bill 2014 and the Global Integrity Summit.

The BLS has conducted a series of workshops during the second half of 2014, namely:

• Corporations Workshop – 25-27 July;

• Insolvency Law Workshop – 28-30 August;

• Competition and Consumer Workshop – 12-14 September;

• Rising Stars Competition Workshop – 17 & 18 October; and

• Taxation Workshop – 17-19 October.

In addition, the BLS and the Australian Centre for International Commercial Arbitration (ACICA) co-sponsored an International Arbitration Conference in Sydney on 13 November 2014 on “Burning Issues in International Arbitration – an Asia-Pacific Perspective”. The conference was held as part Sydney Arbitration Week.

The BLS has awarded three scholarships this year:

• the Gaire Blunt Scholarship for an essay on competition law;

• the Forstyh/Pose Scholarship for an essay on taxation law; and

• the Santow Scholarship for an essay on corporations law, awarded for the first time this year.

Further information regarding the scholarships and this year’s winners can be found on page 20.

BUSINESS LAW SECTION

SECTION OVERVIEWS

FAMILY LAW SECTION

From 7-10 October 2014, Sydney played host to the 16th Biennial National Family Law Conference, the leading and largest regular legal event held in Australia.

With more than 950 participants, the 2014 Conference offered an outstanding collection of speakers from Australia and overseas and introduced a dynamic format which encouraged the exchange of ideas and increased the level of interaction between presenters and the audience.

The 2014 Conference theme was ‘Family Law – Evolution or Revolution’. With the assistance of the Family Law Section’s National Advisory Board, the Conference Organising Committee developed an extensive professional program with more than 37 sessions presented over three days. With content that comprehensively addressed all aspects of the practice of family law, ranging from a thorough coverage of legal principle and practice management through to the exploration of new and developing areas of the law and associated areas, there was something for delegates of all levels of experience. Delegates were also actively encouraged to consider how the family law system can be improved and the way in which those who interact with the system can foster change.

The Conference began with a ‘Q&A’ style panel facilitated by pre-eminent Australian journalist, Mr Tony Jones. Panel members comprising the Hon. Mark Dreyfus QC MP, Ms Bettina Arndt, Mr Mark Carnegie, the Hon. Acting Judge Jennifer Boland AM, and Dr Mehreen Faruqi MLC, were led by Mr Jones in a lively and engaging discussion about the

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SECTION OVERVIEWS

FEDERAL LITIGATION AND DISPUTE RESOLUTION

SECTION

issues at the forefront of family law in an ever-changing Australian society.

In his State of the Nation address, the Commonwealth Attorney-General, Senator the Hon. George Brandis QC, announced a new reference for the Family Law Council in relation to the intersection of child protection law and family law. In welcoming the announcement, the Family Law Section said that the inquiry will address long-standing issues, but cautioned that any innovative recommendations would not be able to be implemented unless the current funding crisis facing the Family Courts was first addressed.

The Conference provided an opportunity for the heads of jurisdiction, the Hon. Chief Justice Diana Bryant AO, Family Court of Australia and Chief Judge John Pascoe AO CVO, Federal Circuit Court of Australia, to provide their perspectives on the current status and future direction of family law and their respective courts.

Delegates were also fortunate to be addressed by the Hon. Mr Justice Sean Ryan of the High Court of Ireland and President Designate of the new Irish Court of Appeal. Justice Ryan provided a thought-provoking insight into his role as the Chair of the Irish Inquiry into Institutional Child Abuse in that country.

An exciting social program complemented the professional activities and provided delegates with an opportunity to renew old acquaintances and foster new bonds with colleagues.

The Section Executive would like to acknowledge and thank the Local Organising Committee of Michael Kearney SC, Paul Doolan, Glenn Thompson, Jamie Burreket, and Suzanne Delbridge, for their tireless work over the last two to three years.

Work is now under way for the 17th National Family Law Conference which will be held in Melbourne in October 2016. Visit the Family Law Section website for regular updates.

AdvocacyThe Section’s advocacy in recent months has concerned:

• the lack of Australian Government support for the Administrative Review Council, evidenced in a lack of funding, work program and President. These issues have been raised since 2009 in several letters to various Commonwealth Attorneys-General;

• listing difficulties in the Administrative Appeals Tribunal (AAT) caused by the deficit of members in the lead up to the planned 2015 merger of Commonwealth tribunals;

• the definition of ‘the court’ in the Commercial Arbitration Acts following the decision in Subway Systems Australia Pty Ltd v Ireland [2014] VSCA 142; and

• the need to give parties the right to be legally represented before the Fair Work Commission.

Publications and eventsThe Section’s policy communications, continuing professional development events and publication of professional resources in recent months have included:

• the publication of the Section’s expanded and graphically designed flagship publication, the Federal Court Case Management Handbook, which is accessible on the Law Council’s and the Federal Court of Australia’s websites. The original editorial committee John Sheahan QC, the Hon Dr Kevin Lindgren AM QC and Simon Daley PSM coordinated the publication of the Handbook in 2011. Philip Crutchfield QC and Kanaga Dharmananda SC joined the editorial committee for the current revision and will assist with overseeing the ongoing revision and addition of new content. Recent chapters cover representative

proceedings and alternative dispute resolution. Five more chapters are currently being written. The contribution of those who work collaboratively and without remuneration on the Handbook for the benefit of the profession and the legal system continues to be greatly appreciated by the Federal Court of Australia and the Law Council;

• the successful convening of the by-invitation administrative law conference “Administrative Justice and its Availability”, co-hosted with the Federal Court of Australia in August 2014. Keynote speakers included the Hon. James Allsop AO, Chief Justice of the Federal Court of Australia; the Hon. Dennis Davis, Justice of the Western Cape High Court, South Africa; and the Hon. Professor William Gummow AC, a former Justice of the High Court of Australia who is now at the College of Law at the Australian National University and at the Sydney Law School, University of Sydney;

• the CPD event co-hosted jointly with the NSW Law Society in August 2014 entitled ‘Privilege, confidentiality and privacy within the Alternative Dispute Resolution (ADR) forum’. The panellists were the Chief Justice of NSW, the Hon TF Bathurst; Professor Tania Sourdin, Director of the Australian Centre for Justice Innovation at Monash University; Robert Angyal SC, Barrister; Philip Argy, Principal of Argystar.Com and Director of the Mediator Standards Board; Joanne Staugas, partner at Johnson Winter & Slattery (Adelaide); and Mary Walker, barrister and chair of the Sections’ ADR Committee;

• the Section’s Chapter III newsletter, under the editorship of Ian Bloemendal, has been revitalised and is now published four times a year. It is also accessible on the Law Council’s website;

• the publication of case notes of significant judgments concerned with client legal privilege (CLP) by the CLP Committee on the CLP Watch webpage on the Law Council’s website. Barristers Michael Rennie and Stephen Tully drafted the casenotes. [At its October meeting the Section Executive decided to broaden the focus of the CLP Committee and renamed it the Privileges and Immunities Committee]; and

AUG – DEC 2014 81

INTERNATIONAL SECTION

• the second “Hot Topics in Commonwealth Compensation” CPD event on 12 December 2014 hosted by Slater+Gordon in Sydney which included presentations on recent decisions by Thena Kyprianou, Senior Executive Lawyer, Australian Government Solicitor; a former Tribunal-member perspective by Professor Robin Creyke (ANU) and a moot on the AAT’s video film practice direction” by barristers Leo Grey and Matthew Gollan.

Section Executive At the Section’s annual general meeting (AGM) hosted by Herbert Smith Freehills on 24 October 2014, Chris Cunningham was re-elected Chair; John Emmerig Deputy Chair, and Peter Woulfe, Treasurer and eleven Section members were deemed elected:

• Mr Chris Cunningham;

• Mr Ian Bloemendal;

• Dr Natalie Cujes;

• Mr Simon Daley PSM;

• Mr John Emmerig;

• Mr David Gaszner;

• Ms Bronwyn Lincoln;

• Mr Ben Slade;

• Ms Joanne Staugas;

• Mr Ingmar Taylor SC; and

• Mr Peter Woulfe.

At the AGM several members who chose not to stand again were warmly thanked for their contribution:

• Peter Kite SC chaired the Section for six years (2003–09) and served on the Section Executive Committee 1998–2014. He was a Member of the Law Council Futures Working Group and the Law Council’s Working Group on the Review of the Evidence Act 2005. He chaired the Industrial Law Committee 1998–01, represented the Law Council on the Australian Industrial Relations Commission Users Group 1999–2001, and delivered an active CPD/CLE program over many years. Some of the submissions that Peter contributed to responded to the Workplace Relations (More Jobs Better Pay) Bill 1999 and the Workplace Relations Amendment Bill 2000.

• Tom Howe QC was a member of the Section Executive 1999–2014. He chaired the Commonwealth Compensation and Employment Law Committee 2000–08. The Committee’s work during his

chairmanship concerned the Safety Compensation and Rehabilitation Act, Comcare’s impairment guidelines, and the Administrative Review Tribunal in 2000.

• Harry Dixon SC chaired the Industrial Law Committee 2005–09 during which time the Committee actively made representations concerning elements of the proposed Fair Work Act 2009 (Cth). The Committee also delivered many successful CPD seminars events on a range of industrial law matters over several years across the country, in which he presented several papers. He was a member of the Section Executive in 2013–14.

The Summer issue of Chapter III profiled members of the 2014–16 Section Executive.

Policy Development On 1 August 2014, the Migration Law Committee (MLC) provided a submission to the Office of the Migration Agents Registration Authority (OMARA) on the regulatory arrangements for the migration advice industry.

The Law Council notes that the present environment is favourable to deregulation and argued that migration lawyers are subject to unnecessary, inefficient and counter-productive dual regulation. The Law Council further notes that significant overhaul of the OMARA and the regulatory framework for the migration agents is necessary to improve consumer protection. The following points were submitted by the Law Council:

• lawyers holding a current legal practicing certificate should be exempt from the requirement to register as a migration agent in order to provide “immigration assistance”;

• irrespective of whether dual regulation is ceased, all complaints against lawyers be referred by the OMARA to the relevant legal profession regulatory body;

• a tiered registration system, as applied in the United Kingdom, should be implemented;

• additional minimum education and registration requirements should be established for migration agents to improve consumer protection standards in the migration advice industry; and

• if the Government decides not to establish an independent statutory body, the OMARA (or similar body) should continue in its role as the body responsible for registering agents and investigating complaints, which are then referred to another independent body for determination such as the Administrative Appeal Tribunal (which may go some way toward removing the conflict inherent in the regulatory functions of the OMARA and its relationship with the Department).

On 22 October 2014, the MLC made a submission to the Skilled Visa Department of Immigration and Border Protection on Skilled Migration and 400 Series Visa Programmes Discussion Paper. The MLC acknowledged that the Review recognised the interconnected nature and range of the Australian visa program, which includes over 140 individual visa subclasses. The discussion paper, notes that this review will result in the most far reaching transformation of the skilled migration and 400 series visa programmes in the last 20 years and will establish a visa framework that will support Australia’s skilled migration needs for the next 20 years. It is noted that over the past 5 years there have been significant regulatory changes to the following areas of the visa program as follows:

• the subclass 400 series of visas;

• the subclass 600 series of visitor/tourist visas;

• the business skills categories (provision and permanent);

• the “points test” visa subclasses (subclass 189/190 visa subclasses); and

• the employment sponsored subclass 457 and subclass 186/187 visa subclasses.

All submissions are available from the Law Council website. Submissions relating to International Trade and Business Law are also available on the Law Council website and submissions relating to migration law are available on the International Law Section’s webpage.

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SECTION OVERVIEWSKey activitiesOn 18-19 September, the International Law Section hosted its annual event, the International Trade Law Symposium, which encourages open and frank discussion between government, profession and academics on emerging developments in trade law in Australia and internationally. Panellists provided an overview of the recent developments in trade law from their view point and used their expertise to analyse trends and predict forthcoming changes in this area of law. Eminent speakers and panellists debated and discussed International Trade Law issues including:

• Emerging Developments in Trade Law – A Year in Review;

• WTO disputes;

• Current negotiations and recently signed regional and free trade agreements - Australia in the Asian Century;

• Foreign Investment;

• International Arbitration and Dispute Resolution;

• Trade Remedies - Anti Dumping Measures;

• Trade agreements and the private sector – discussion on best practice for industry engagement; and

• Emerging developments in UNCITRAL.

On 24 September 2014, the London Chapter hosted a booked out event at Linklaters with guest speaker the Hon. Michael Kirby AC CMG. The address, entitled From the High Court of Australia to Human Rights in North Korea, focused on the creation, operation and findings of the United Nations Commission of Inquiry established in 2013 to investigate human rights violations in the Democratic People’s Republic of Korea (North Korea), with a view to ensuring full accountability of those responsible.

On 12 November 2014, the New York Chapter hosted a Continuing Legal Education programme, entitled To Live And Die In The U.S.A. A Forum For Australian Expats On Immigration, Tax And Estate Planning at Moses & Singer LLP, The Chrysler Building, New York.

On 18 November 2014, the International Law Section Hong Kong Chapter hosted a luncheon at the Bankers Club, Hong Kong. Mr Mark Steward Executive Director, Enforcement Division of the Securities and Futures Commission (“SFC”) of the Hong Kong SAR, gave the keynote address on Influence and Inspiration: Australia’s and Hong Kong SAR.

Information about upcoming International Law Section events are available online.

LEGAL PRACTICE SECTION

HighlightsThe highlight of recent activities by the Legal Practice Section has been the progress with the Uniform Torrens Title Act (UTTA) project under the leadership of the Chair of the Australian Property Law Group (APLG) and Property Law Reform Alliance (PLRA), Mr Michael James. In December 2014 a revised draft of the UTTA drafted by Emeritus Professor Peter Butt (University of Sydney) with the assistance of Ms Margaret Hole, Chair of the Alliance’s Conveyancing Working Group, is expected to be released after a further stakeholder consultation period on the revised draft. Also in December, the Council of Law Societies (COLS) has been asked to write to the Council of Australian Governments (COAG) voicing support for the UTTA and inviting discussions between the PLRA and COAG.

The aim of the UTTA project is to ensure that a world-class 19th century system is adapted for 21st century technologies and needs, continuing the business regulation reform agenda that started with the Corporations Law and the review of personal property. It is expected to lead to increased productivity, investment and more jobs, by reducing costs and transaction timeframes, and increasing efficiencies for vendors, purchasers, lessors, and lessees. With national markets for property lawyers conveyancing practices are also expected to be streamlined, reducing red tape.

The APLG has active members in the E-conveyancing Working Group led by the National E-Conveyancing Development Ltd (NECDL) which the New South Wales, Queensland and Victorian Governments established to accelerate the development of the National E-conveyancing System (NECS). It also engages with the Australian Registrars’ National Electronic Conveyancing Council (ARNECC), which has developed the Electronic Conveyancing National Law, Model Operating Requirements and Participation Rules. The APLG encourages the NECS to remove anomalies and contribute to the harmonisation of property laws.

Other advocacyOther Section committees have continued to engage with law and policy issues. Recent submissions have provided comments on the:

• Tax and Superannuation Laws Amendment (2014 Measures No. 7) Bill 2014: Providing certainty for superannuation fund mergers; and

• Tax and Superannuation Laws Amendment (2014 Measures No. 7) Bill 2014: Excess non-concessional superannuation contributions tax reforms; and

• to Senate Economic References Committee Inquiry into the need for a National Approach to Retail Leasing Arrangements.

Ms Heather Gray of the Superannuation Group represented the Law Council in October at a workshop on the Government’s proposed Excess Non-concessional Contributions Tax Measure.

Section ExecutiveAt the Annual General Meeting (AGM) on 10 November 2014, the 2014–16 Section Executive was declared. The office bearers deemed elected for 2014–16 are Mr Dennis Bluth (Chair), Mr Philip Jackson (Deputy Chair) and Mr Paul Malliate (Treasurer). Other members of the Section Executive are Mr Mark Cerché, Ms Maureen Peatman, Mr Bill Redpath and Ms Kriss Will. The Section Executive welcomed new member Dr Leonie Kelleher OAM, who was an active member of the Australian Environment and Planning Law Group (AEPLG) during 2013–14.

Mr Damian Scattini, a long-standing Executive member and former Section Chair (2004–06) retired from the Executive after having given a decade of energetic service. In 2003, Damian chaired the Australian Consumer Law Committee and remained a member in 2004. In 2006, Damian was a member of the Tort Law Reform Working Group and member of the former Personal Injury Litigation Committee. In 2007, he was a foundation member of the Section’s reconstituted Personal Injuries and Compensation Committee (PICC), and has remained on that Committee since. The Executive wishes Mr Damian Scattini well and hopes that he will remain active in Section Committees.

After the AGM, members of the Executive represented the Law Council at the 2014 Harvard Club of Victoria (ACV) annual dinner. Those attending heard speeches by Mr Tim Goodwin, constitutional expert and HCV councillor; Ms Tanya Hosch, Joint Campaign

AUG – DEC 2014 83

director for Recognise, the movement to recognise Aboriginal and Torres Strait Islander peoples in Australia’s Constitution and Professor Marilyn Lake FAHA FASSA, Professor in History and ARC Professorial Research Fellow at the University of Melbourne.

Professional development IUCN World Parks Congress

The Law Council and the Section provided modest financial and significant in-kind sponsorship of environmental law events at the IUCN World Parks Congress 12–19 November 2014, Sydney with more than 6,000 people attending the Congress.

The Section-supported Congress event, “The Judiciary and Protected Areas” on Thursday 13 November 2014 was successful with 75 attendees. Presentations were delivered by the Hon. Justice Brian Preston SC, Chief Judge of the New South Wales Land and Environment Court; the Hon. Justice Antonio Benjamin, Justice of the National High Court of Brazil; the Hon. Michael Kirby AC CMG, former High Court of Australia Justice; Professor Luc Lavrysen, a Judge in the Belgian Constitutional Court and President of the European Union Forum Judges for the Environment; and the Hon. Justice Jayne Jagot of the Federal Court of Australia. The Shadow Attorney-General, the Hon. Mark Dreyfus QC MP, moderated the event.

The Chair of the Australian Environment and Planning Law Group (AEPLG), Mr Greg McIntyre SC, spoke in a Congress stream session “Sustainable Harvests: Climate Change and Regulatory Impacts”.

The Section also supported a Congress ‘mock case’ before the International Court of Justice on the legal and scientific issues concerning the protection of the world’s most iconic reefs from human-induced climate change and ocean acidification. The case was heard by Justice Nicola Pain (New South Wales Land and Environment Court), Justice Rachel Pepper (New South Wales Land and

Environment Court) and Associate Professor Tim Stephens (Sydney Law School). The advocates were senior students from the Sydney Law School (Mr Elizabeth Pearson, Mr Eric Shi and Mr John Tsaousidis). Expert evidence was given by Dr Paul Marshall (University of Queensland), a leading expert in applied conservation science and a specialist on the impacts of climate change on coral reefs.

The event was presented by the Australian Centre for Climate and Environmental Law at the Sydney Law School, the University of Sydney Institute for Marine Science, the IUCN World Commission on Environmental Law and the IUCN World Commission for Protected Areas - Marine Specialist Group. The ACT Office of the Commissioner for Sustainability and the Environment also supported the event.

Super Forever

The Superannuation Committee is well advanced with planning its 28th Superannuation Conference to be held in Brisbane 19–20 February 2015. The conference theme is ‘Super Forever’, to capture the current focus on longevity and retirement incomes. The 2015 conference will be opened by the Hon. T.F. Carmody, Chief Justice of the Supreme Court of Queensland.

2015 Mahla Pearlman Oration and Future of Environmental Law Symposium

In recent months, the AEPLG has been planning its 2015 Mahla Pearlman Oration and Future of Environmental Law Symposium which will be held in Sydney on 5 and 6 March 2015. The Symposium will focus on the new environmental federalism under the

Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and the issues that raises for environmental lawyers. The Symposium will honour the contribution of Dr Gerry Bates to environmental law. The keynote speaker will be Dr Allan Hawke AC, who led the independent review of the EPBC Act completed in 2009. Other confirmed speakers include the Hon. Senator Larissa Waters and Adjunct Professor Rob Fowler. The Symposium will again be held at the Langham Hotel in Sydney’s historic Rocks area.

World Masters of Law Firm ManagementTM

The Australian Law Management Group continues to plan for the World Masters of Law Firm ManagementTM which has as its theme for 2015 “Improving client value in the new law paradigm.” The World Masters event showcases the knowledge and expertise of world-acclaimed law firm management experts. In 2015 legal management guru Professor Richard Susskind OBE will headline a stellar line-up of speakers. Ms Pam Woldow, Principal, Edge International, is another keynote speaker. The event will be held at the Intercontinental Hotel, Sydney on 12 March and registrations are open. This exciting one-day seminar, sponsored by Thomson Reuters, attracts chief executive officers, chief financial officers, practice managers, managing partners and other executives from legal and professional service firms.

Below: (l-r): The Hon. Michael Kirby AC CMG, former High Court of Australia Justice and the Shadow Attorney-General, the Hon. Mark Dreyfus QC MP.

Left: (l-r): Associate Professor Tim Stephens, Justice Nicola Pain and the Hon. Justice Rachel Pepper

Above: (l-r): Legal Practice Section AEPLG Chair Greg McIntyre SC, LPS Chair Dennis Bluth, and LPS Exec Members Dr Leonie Kelleher OAM and Paul Malliate.

84 LAW COUNCIL REVIEW

With the support of Centre for Asia-Pacific Pro Bono (CAPPB), Dr Liz Bishop from the Michael Kirby Centre for Public Health and Human Rights, Monash University, has been working with the School of Medicine, Fiji National University (FNU), to develop a program introducing law, ethics and human rights into the medical curriculum.

LAW, HUMAN RIGHTS AND MEDICINE IN FIJI

In a resource-poor setting where the decision for patients is between the available treatment or no treatment, where there

are insufficient sterile gloves in the emergency department of the major hospital, and where the political and economic environment poses challenges, the local context has a significant impact on the nature of the program to be delivered.

To ensure the program developed met these challenges, together with FNU staff, I visited a number of urban, regional and rural health facilities. In one rural community health centre, we asked the permission of the Head Nurse to look around and she happily took us on a tour. As we walked through the entrance, all patient x-ray files were stored in open shelving with the patient’s name clearly marked on the side. In the passage way, many patients had been asked to set health goals for the year and to write them down to remind themselves. Each clearly bore the name of a patient, their health condition, e.g. diabetes, and their intentions, e.g. drink less alcohol. Following this, we went into the treatment room where a young boy accompanied by his mother and siblings was receiving Ventolin, the cleaner was sweeping the floor and two medical students were discussing the family who had most recently been admitted for treatment of dengue fever. We were advised that the cleaner is regularly present during consultations.

The workshops presented to students were interactive and included role play, local case scenarios and de-briefing sessions.Our discussions highlighted that there have been a number of cases of misconduct by doctors but that in the absence of a Code of Conduct for the profession, these can be difficult to prosecute or penalise. We discussed with the Fiji Medical and Dental Council the potential to develop Guidelines or a Code of Conduct for medical professionals and look forward to future opportunities to further this.Other issues of great significance and interest to students included the prevalence of violence against women, development of a registration exam to ensure all new practitioners meet core minimum standards and introducing law and ethics training not only to undergraduates but also to post graduates. Having now developed strong ties, we look forward to working with FNU to achieve these aims.

Dr Liz Bishop

Lecturer, Michael Kirby Centre for Public Health and Human RightsSchool of Public Health and Preventive MedicineMonash University

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WHAT DO HUMAN RIGHTS MEAN TO ME AS A MEDICAL STUDENT IN FIJI?

The CAPPB is housed within the Law Council of Australia Secretariat and seeks to match requests for pro bono assistance from organisations (including governments) in the Asia-Pacific region with appropriate international pro bono legal service providers in Australia. In doing so, the CAPPB aims to support development in the law and justice sector of Asia-Pacific countries.

For information about requesting or providing assistance through the CAPPB, please visit cappb.org or email cappb@lawcouncil.asn.au.

A snapshot of student perspectives on the workshops can be seen from their response to this question:

“As a student ‘rights’ is a major component as we proceed with own education.”

“Human rights are an important thing to consider especially in our workforce, we are to be aware of this issue always when we are in contact with patients. So we are to be alert always of our actions and hence our management should be in the patient’s best interest.”

“I like the discussions on ethical, legal and medical Issues – I learnt a lot about human rights.”

“I like the atmosphere for other people discussed in the session, I like the session because it’s very interactive and free and open, I learnt a lot”

“Human rights – taking a stand against violence against women, learning that although you might feel alone at time when going through violence in a relationship – the society enforces law and it is recognized against as social issues and have put in means to solve for it. This is comforting to know that in Fiji you have support and challenges that you can use to ensure women’s rights are heard and respected.”

“Human rights sense of it gives me a self belonging that I am somewhere.”

“Seeing a doctor walk away after a failed resuscitation and without explaining why he was dead to the waiting wife and daughter. They had the right to find out.”

86 LAW COUNCIL REVIEW

The first ever survey of the needs of legal professional bodies in the South Pacific region was conducted by the South Pacific Lawyers’ Association (SPLA) in 2011. The overarching objective of the Needs Survey was to identify the needs of law societies and bar associations in the South Pacific region so that they can best serve their members.

PACIFIC LEGAL PROFESSION SURVEY

The 2011 survey made a number of recommendations as to how law societies could be better supported, particularly through improved resourcing and law reform measures. Earlier this year, the SPLA Secretariat released a report on Women in Law in the South Pacific, which also featured in Issue 9 of newSPLAsh.

Expanding on its earlier work, the SPLA is now conducting the Pacific Legal Profession Survey 2014. The Survey incorporates questions and recommendations from both the Needs Survey and the Women in Law Survey and will seek to improve research methodologies of these previous Surveys. The 2014 Survey will:

• collect information on legal practice in SPLA member countries including information on the variety of work performed in the Pacific, experience and

accessibility of flexible working arrangements, mentoring services provided by employers and bar associations and opportunities for career progression;

• collect information on the structure and function of legal professional bodies in SPLA member countries;

• collect demographic data on Pacific legal professionals (including statistics of women in the legal profession);

• collect information on CLE, complaints and discipline and pro bono culture;

• identify and monitor trends and divergences in the legal profession across SPLA member countries; and

• identify the challenges and opportunities facing peak legal professional bodies with a view to developing proposals for funding and support.

The data collected will be used to prepare a report on the state of the profession in the South Pacific region, noting key demographic trends since the previous surveys.

The data collected will be used to prepare a Report on the state of the profession in the South Pacific region, noting key demographic trends since the previous surveys.

The Report will be valuable for law societies and bar associations in the region to identify developments within their jurisdiction and for comparative research purposes. It is anticipated that the Report will also be useful to government bodies and other relevant agencies in developing policies affecting the legal profession and the law and justice sector generally.

The Pacific Legal Profession Survey 2014 has been distributed to SPLA members. The final Report is anticipated to be released in 2015.

For more information, please email info@southpacificlawyers.org.

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The South Pacific Model Conduct Rules Project is an initiative of the South Pacific Lawyers’ Association, which is supported by the Law Council of Australia and the Commonwealth Attorney-General’s Department and has been endorsed by the Pacific Islands Law Officers’ Network (PILON). The purpose of the Project is to develop model rules, legislation and regulations which can be adopted with appropriate debate and modification to harmonise regulation of the legal profession in South Pacific countries.

Phase 1 of the Project is almost complete. This phase involves comparative analysis of existing rules in South Pacific countries, preparing a report identifying shortcomings and making recommendations for reform, and identifying model rules of professional conduct and complaints and discipline handling procedures.

In drafting the report, at least three key shortcomings have emerged in the current legislative formulae adopted by most jurisdictions in the region:

• Definitional Issues – terms such as ‘professional misconduct’ are often not defined resulting in interpretative difficulties for regulators;

• Categorisation leaving ‘gap’ – to the extent that ‘conduct’ is defined or categorised, significant gaps remain resulting in large gaps in the regulatory framework;

• Nexus – lack of a clear nexus between findings of misconduct and disciplinary consequences.

Shortcomings in the administration and determination of complaints against legal practitioners include:

• failure in some jurisdictions to properly specify the complaint making process;

• lack of a ‘triage’ system for classifying ‘minor’ complaints which can be dealt with summarily (fine, censure) and ‘major’ complaints;

• absence of express obligation of fairness in administering complaints or conducting disciplinary proceedings;

• lack of adherence to the principle of open justice; and

• no publication of findings, or reasons for findings.

In addition to the preparation of the Phase 1 report into conduct rules and complaints and discipline, resources collected have enabled the creation of tables outlining admission requirements, licensing requirements and costs disclosure requirements in surveyed jurisdictions.

The preliminary findings noted above were reported to the recent meeting of PILON in Kiribati, 11-12 November 2014. Following the completion of the report, the SPLA will engage with PILON and Pacific Islands Forum member countries to promote the findings and recommendations of the report and secure support for the continuation of the Project.

SOUTH PACIFIC MODEL CONDUCT

RULES UPDATE

AUG - DEC 2014

The Law Council Review provides in-depth stories to the profession about issues of national importance and celebrates the achievements and successes of Australian lawyers.

review@lawcouncil.asn.au www.lawcouncil.asn.au

FEBRUARY 20159-15 February - 2015 Superannuation Lawyers’ ConferenceHost: Superannuation Committee, Legal Practice Section, Law Council of AustraliaVenue: Sofitel Brisbane Central, BrisbaneEmail: fedls@lawcouncil.asn.auPhone: +61 2 6246 3722

MARCH 20155 March - Mahla Pearlman AO OrationHost: Legal Practice Section, Law Council of AustraliaVenue: Law Courts Building, Queens Square, SydneyEmail: lps@lawcouncil.asn.auPhone: +61 2 6246 3722

6 March - Future of Environmental Law SymposiumHost: Legal Practice Section, Law Council of AustraliaVenue: The Langham, SydneyEmail: lps@lawcouncil.asn.auPhone: +61 2 6246 3722

12 March - 2015 World Masters of Law Firm Management - Improving Client Value in the New Law ParadigmHost: Legal Practice Section, Law Council of AustraliaVenue: Intercontinental, SydneyEmail: lps@lawcouncil.asn.auPhone: +61 2 6246 3722

15 March - 2015 CPD Migration Law ConferenceHost: Migration aw Committee, International Law SectionVenue: Melbourne Park HyattEmail: ils@lawcouncil.asn.au Phone: +61 2 6246 3788

18-20 March - 4th Asia Pacific Regional Forum Conference: Borderless AsiaHost: International Bar AssociationVenue: Marina Bay Sands, Singapore

20-21 March - QLS Symposium 2015 Host: Queensland Law SocietyVenue: Brisbane Convention and Exhibition CentreEmail: info@qls.com.auPhone: 1300 367 757

APRIL 201512-16 April - 2015 Commonwealth Law Conference Host: Commonwealth Lawyers AssociationVenue: Scottish Exhibition and Convention Centre, GlasgowEmail: registration@happen.co.ukPhone: +44 (0) 20 3397 7695

LIST YOUR EVENT HERE

Do you have an event to add?

Contact the Editor to add your event: review@lawcouncil.asn.au

Law Council Review

• Issue 11 • Aug–Dec 2014

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