President’s Report – October

Presidents-Report

As members may be aware, a Special Council Meeting was held on Tuesday, 8 September 2015, following the resignation of former President Matthew Keogh in August. I was honoured and delighted to be elected President of the Society at the Special Council Meeting. I look forward to representing the legal profession in Western Australia and continuing to work on behalf of the Society’s members.

Alain Musikanth has stepped into the role of Senior Vice-President. At the same meeting Hayley Cormann was elected Vice-President and Marie Botsis was elected Treasurer.

Council Elections

The forthcoming elections for the Society Council provide an opportunity for members to give back, not only to the legal profession, but also to the wider community. The Council sets the strategic direction for the Society, ensures good governance and acts as the voice of the legal profession (with the assistance of its Committees) through submissions and dialogue with the courts and government.

Nomination forms will be sent out in early October. Nominations close Thursday, 22 October 2015. I encourage all members to consider nominating for a position on the Council.

2015 Society AGM

The 2015 Annual General Meeting of the Law Society of Western Australia will be held on Tuesday, 27 October 2015 at Level 36, QV1 Building, 250 St Georges Terrace, Perth commencing at 5.15pm.

Parliamentary Counsel’s Office Proposals to Modernise Processes for Publishing Western Australian Legislation

The Acting Parliamentary Counsel, advised the Society, in a letter dated 17 July 2015, of proposals being developed by the Parliamentary Counsel’s Office (PCO) to modernise certain aspects of the processes for publishing Western Australian legislation. The proposals involve three components:

  1. replacing the current requirement to publish subsidiary legislation in full in the Government Gazette with publication on the WA legislation website www.legislation.wa.gov.au;
  2. giving WA legislation compilations prepared by the PCO in electronic form the same status that statutory reprints in printed form now have; and
  3. extending the powers available under the Reprints Act 1984 to the preparation in the PCO of all electronic versions of WA legislation.

The Society approves of the proposal for legislation compilations prepared by the PCO in electronic form to have statutory status. This will allow the legal profession and much of the wider community to have access to up-to-date legislation at any point in time, from an authoritative source.

The Society has noted that hard copy reprints would cease under the PCO proposals, with users able to print their own copies or order commercially printed and bound versions. The Society is conscious that not all users have printers or access to the internet. For those who are otherwise unable to access a copy of legislation, the Society considers that hard copies should be made available at a reasonable cost.

As a further enhancement of the PCO’s proposal, the Society believes it would be very useful to the legal profession if the PCO could make available ‘marked up’ versions of the Acts. These would show all amendments made, and in respect of each amendment, a notation showing the full name and reference to the Amending Act and the date of commencement of the amendment.

Corporations and Markets Advisory Committee

The Commonwealth Government announced in the 2014-2015 Budget that the Corporations and Markets Advisory Committee (CAMAC) would be abolished. At a 2014 meeting between the Society and the WA Attorney General, it was raised that the proposed abolition of CAMAC had highlighted matters which could usefully be addressed in the context of the renewal of the Corporations Agreement in 2016. It was decided by the Society that the issue of the renewal of the Corporations Agreement would best be progressed by convening a Working Group to prepare a submission to the Attorney General.

The Society approved a draft letter to the Attorney General prepared by the Working Group stating that the Society is generally supportive of the referral of powers being renewed. However, the Society would like to see more clarity in the new Corporations Agreement around processes regarding changes to the Corporations legislation and the appointment of Commissioners to the Australian Securities and Investments Commission (ASIC).

Law Council of Australia – Investor State Dispute Settlements

At a meeting on 27 June 2015, the Law Council of Australia Directors considered a paper prepared by Dr Gordon Hughes setting out a proposed Law Council policy position on ISDS (Investor-State Dispute Settlement) clauses in Free Trade Agreements and international investment treaties. After discussion, Law Council Directors resolved to defer consideration of the matter to the September meeting.

An ISDS clause in a Free Trade Agreement or International Investment Treaty provides foreign investors with an opportunity to seek compensation from the host government if the government acts in a manner which adversely impacts upon investment decisions taken in reliance upon the treaty. The objective of an ISDS clause is to provide a measure of certainty and reassurance to foreign investors. Critics are concerned that such provisions potentially constrain the government’s ability to legislate in respect of public interest issues which may not have been apparent at the time of entering into the treaty. Critics also have concerns about a dispute resolution process which bypasses national courts and which is conducted in closed session.

At a meeting in August, the Society Council agreed to support the Law Council of Australia adopting the following policy position:

The Law Council considers that the inclusion of ISDS clauses in Free Trade Agreements does not constitute an insurmountable threat to Australia’s sovereignty or the rule of law but must nevertheless be considered on a case by case basis so as to ensure that the authority of the Australian legislature and Australian courts is not unduly compromised.

It is Council’s view that this position allows for the proper consideration of each Agreement and the widest possible consideration of such clauses without constraining any review to only those issues which presently concern the critics referred to above.

Society Construction and Infrastructure Committee

Council has approved the establishment of a Construction and Infrastructure Committee. Michael Hollingdale, Laurie James, James Healy, Melanie Cave, Chris Ryder, Scott Ellis, Elizabeth Cubbitt, Basil Georgiou, and Rob Shaw are to be appointed as members of the Committee. Michael Hollingdale is to be appointed Convenor of the Committee, for a term expiring on 31 December 2019. Terms of Reference are to be developed by the new Committee and will be submitted to Council for approval in due course.

Joint Letter to Candidates for Canning By-Election

The Society continues to be concerned about the level of legal assistance funding and the effect this has on access to justice. A joint letter on behalf of the Law Council of Australia and the Society was sent to all candidates for the Canning by-election. The letter asked candidates to commit to providing increased legal assistance funding in general, but particularly in the electorate of Canning.

President’s Report – October

As members may be aware, a Special Council Meeting was held on Tuesday, 8 September 2015, following the resignation of former President Matthew Keogh in August. I was honoured and delighted to be elected President of the Society at the Special Council Meeting. I look forward to representing the legal profession in Western Australia and continuing to work on behalf of the Society’s members.

Alain Musikanth has stepped into the role of Senior Vice-President. At the same meeting Hayley Cormann was elected Vice-President and Marie Botsis was elected Treasurer.

Council Elections

The forthcoming elections for the Society Council provide an opportunity for members to give back, not only to the legal profession, but also to the wider community. The Council sets the strategic direction for the Society, ensures good governance and acts as the voice of the legal profession (with the assistance of its Committees) through submissions and dialogue with the courts and government.

Nomination forms will be sent out in early October. Nominations close Thursday, 22 October 2015. I encourage all members to consider nominating for a position on the Council.

2015 Society AGM

The 2015 Annual General Meeting of the Law Society of Western Australia will be held on Tuesday, 27 October 2015 at Level 36, QV1 Building, 250 St Georges Terrace, Perth commencing at 5.15pm.

Parliamentary Counsel’s Office Proposals to Modernise Processes for Publishing Western Australian Legislation

The Acting Parliamentary Counsel, advised the Society, in a letter dated 17 July 2015, of proposals being developed by the Parliamentary Counsel’s Office (PCO) to modernise certain aspects of the processes for publishing Western Australian legislation. The proposals involve three components:

  1. replacing the current requirement to publish subsidiary legislation in full in the Government Gazette with publication on the WA legislation website www.legislation.wa.gov.au;
  2. giving WA legislation compilations prepared by the PCO in electronic form the same status that statutory reprints in printed form now have; and
  3. extending the powers available under the Reprints Act 1984 to the preparation in the PCO of all electronic versions of WA legislation.

The Society approves of the proposal for legislation compilations prepared by the PCO in electronic form to have statutory status. This will allow the legal profession and much of the wider community to have access to up-to-date legislation at any point in time, from an authoritative source.

The Society has noted that hard copy reprints would cease under the PCO proposals, with users able to print their own copies or order commercially printed and bound versions. The Society is conscious that not all users have printers or access to the internet. For those who are otherwise unable to access a copy of legislation, the Society considers that hard copies should be made available at a reasonable cost.

As a further enhancement of the PCO’s proposal, the Society believes it would be very useful to the legal profession if the PCO could make available ‘marked up’ versions of the Acts. These would show all amendments made, and in respect of each amendment, a notation showing the full name and reference to the Amending Act and the date of commencement of the amendment.

Corporations and Markets Advisory Committee

The Commonwealth Government announced in the 2014-2015 Budget that the Corporations and Markets Advisory Committee (CAMAC) would be abolished. At a 2014 meeting between the Society and the WA Attorney General, it was raised that the proposed abolition of CAMAC had highlighted matters which could usefully be addressed in the context of the renewal of the Corporations Agreement in 2016. It was decided by the Society that the issue of the renewal of the Corporations Agreement would best be progressed by convening a Working Group to prepare a submission to the Attorney General.

The Society approved a draft letter to the Attorney General prepared by the Working Group stating that the Society is generally supportive of the referral of powers being renewed. However, the Society would like to see more clarity in the new Corporations Agreement around processes regarding changes to the Corporations legislation and the appointment of Commissioners to the Australian Securities and Investments Commission (ASIC).

Law Council of Australia – Investor State Dispute Settlements

At a meeting on 27 June 2015, the Law Council of Australia Directors considered a paper prepared by Dr Gordon Hughes setting out a proposed Law Council policy position on ISDS (Investor-State Dispute Settlement) clauses in Free Trade Agreements and international investment treaties. After discussion, Law Council Directors resolved to defer consideration of the matter to the September meeting.

An ISDS clause in a Free Trade Agreement or International Investment Treaty provides foreign investors with an opportunity to seek compensation from the host government if the government acts in a manner which adversely impacts upon investment decisions taken in reliance upon the treaty. The objective of an ISDS clause is to provide a measure of certainty and reassurance to foreign investors. Critics are concerned that such provisions potentially constrain the government’s ability to legislate in respect of public interest issues which may not have been apparent at the time of entering into the treaty. Critics also have concerns about a dispute resolution process which bypasses national courts and which is conducted in closed session.

At a meeting in August, the Society Council agreed to support the Law Council of Australia adopting the following policy position:

The Law Council considers that the inclusion of ISDS clauses in Free Trade Agreements does not constitute an insurmountable threat to Australia’s sovereignty or the rule of law but must nevertheless be considered on a case by case basis so as to ensure that the authority of the Australian legislature and Australian courts is not unduly compromised.

It is Council’s view that this position allows for the proper consideration of each Agreement and the widest possible consideration of such clauses without constraining any review to only those issues which presently concern the critics referred to above.

Society Construction and Infrastructure Committee

Council has approved the establishment of a Construction and Infrastructure Committee. Michael Hollingdale, Laurie James, James Healy, Melanie Cave, Chris Ryder, Scott Ellis, Elizabeth Cubbitt, Basil Georgiou, and Rob Shaw are to be appointed as members of the Committee. Michael Hollingdale is to be appointed Convenor of the Committee, for a term expiring on 31 December 2019. Terms of Reference are to be developed by the new Committee and will be submitted to Council for approval in due course.

Joint Letter to Candidates for Canning By-Election

The Society continues to be concerned about the level of legal assistance funding and the effect this has on access to justice. A joint letter on behalf of the Law Council of Australia and the Society was sent to all candidates for the Canning by-election. The letter asked candidates to commit to providing increased legal assistance funding in general, but particularly in the electorate of Canning.