On 19 June 2014, James Cook University hosted a Reception for and CPD with the visiting Court of Appeal.   The evening was a most enjoyable way for the University to host the judges, local barristers and solicitors, students, academics and community groups — whilst also fostering its educative role.

Particularly impressive was the CPD. The Bar Association had arranged for a Sunshine Coast Barrister to fly up and speak about technology and advocacy. When that barrister missed his plane, the Northern Supreme Court Judge, Justice David North, did an outstanding job of addressing that topic on very short notice.  The chair for the CPD, President Margaret McMurdo, and the commentator – Far Northern Judge, Justice Ken Henry- were also superb.  It was an impressive display of the decency, reliability, knowledge and adaptability of the Bench — and a good night was had by all!

The speakers received a WWF Orangutan adoption, the book Tears in the Jungle (written by a disabled Australian boy, Daniel Clarke, about our need to care for orangutans) and a bottle of Veuve Clicquot — suitably orange in packaging!

The final CPD in the 2014 JCU-BAQ Series took place on Friday 27 June, when visiting Brisbane Barrister, Dr Max Spry, spoke about appealing stress claims in the industrial jurisdiction.  As always, Dr  Spry did a thorough and valuable presentation, for which JCU and the Townsville community are grateful.

Photograph from the Court of Appeal CPD and Reception:  Justice Henry, President McMurdo, Justice North and Associate Professor Louise Floyd (the JCU host for the evening).

Associate Professor Louise Floyd

Frank Glynn Connolly was one of the great characters of the post-war Bar. Although he was not called until he was 33, he remained in practice for nearly six decades.  In 1949 he was one of 70 practising barristers; today there are 900.  Through these changes, he would remain, in the words of his old friend Sir Gerard Brennan, “true to his vision of the Bar as the defender of individual rights.” He was not only a well-known advocate but a devoted family man, a passionate poet, an abiding Catholic, and a popular colleague and confidant.

Francis (always Frank) was the elder son of Dr Francis Glynn Connolly and Mary Louise Earwaker; born at home at Wombah, in Racecourse Road, Hamilton on 23 January 1916. Frank’s great-grandfather, John Connolly, had emigrated from Ireland in 1842, settled in the Gayndah district and married Mary Glynn. He was educated at St Margaret’s Preparatory School, attached to St Augustine’s Church, next door.  At eleven, he was already a performer — at the 3rd Annual Prize Distribution he played the Sandman, the Wolf, and sang ‘The Ti-Tree’. St Joseph’s College, Gregory Terrace followed.

At the University of Queensland, he was an inter-varsity debater and attained a BA with first class honours in English. In 1938 he went to England to write plays. On the boat he read the work of T S Eliot for the first time and poetry became a life-long passion. He met the great poet and shared some of his poetry with him. Eliot suggested he try prose first but, never defeated nor deflected, Frank continued to write for the rest of his life. As his daughter, Carolyn, recalled, he read deeply and had an extensive library but, for Frank, only two women could write — Jane Austen and Sappho — and a single Australian, Patrick White. Frank’s style was Tennysonian — romantic, idealistic, utterly uncontemporary, often inspired by myth – the Grail, Helen of Troy, Psyche and Cupid.  His great aim was to give his poetry a musical quality and, though he never published his output, a friend of thirty years with whom he shared a love of the art, felt he achieved this.

Any observation on Frank’s facility for language must encompass his mastery of the expletive. Though not ‘in company’ (his much-loved wife found it neither clever nor funny) and never in Court, no one deployed the expletive with such polish, aplomb and profusion as Frank.

Frank returned to Brisbane after his health broke down just before the war.  In January 1941 he enlisted in the Australian Army and served in coastal defence in New Guinea. When the British Army called for volunteers, he transferred to the Durham Light Infantry with whom he fought in India and Malaysia and attained the rank of Captain.

On 29 February 1942 at St Agatha’s Catholic Church, Clayfield, he married Mary Blair De Burgh Persse of Wyambyn, Beaudesert, after eloping — as her Anglican parents and his Catholic parents discussed whether they would be married in her family church or in his cathedral. During the war he wrote his MA thesis, on Eliot, ‘by the light of the moon’.

After the war Frank followed his father into medicine, but after a year’s study he switched to law, following his uncle, Hugh Glynn Connolly, of counsel and later a partner of Suthers Connolly, Townsville (subsequently Connolly, Suthers and Walker). Frank was called to the Bar on 15 February 1949, signing the roll just below his great friend and another memorable character of the criminal Bar, Colin Bennett.

Frank read, at first, in the chambers in the old Old Inns of Court in Adelaide Street of Rex King (later QC). It was King, Frank claimed, who taught him to swear.  In response to a letter from Frank’s mother in May 1948 (promising not to tell Frank that she had written), Mr King wrote, “He has a most engaging and pleasing manner but lacks as yet something of maturity and self-reliance: these qualities I have no doubt will be added unto him and you may be sure that it will be my constant aim to aid nature and the effluxion of time in adding them. He talks well, is industrious and systematic in his work and possesses a genial enthusiasm which, with a little more maturity, should carry him a long way.” This enthusiasm never dimmed.

Every era makes legends of its predecessors but the Bar in the late forties and fifties had more than its share of characters. The outstanding criminal advocate of his time, Dan Casey, had chambers beside King’s. Octavius (Octy) North, (father of the Northern Judge and North, SC) was a colleague and friend; as were Kennedy Allen and Vince Fogarty. Ten months after Frank’s admission, his brilliant irascible cousin, Peter Connolly, was admitted to practice and his career was a source of pride for Frank. The Power family, a formidable legal dynasty in its time, were also cousins.

Frank refused, on religious grounds, to accept divorce briefs, which succoured most of the Junior Bar, but he appeared in maintenance actions.  Frank must have been good copy throughout his career. The Courier-Mail‘s court reporter reported one exchange, “Wife to Mr F Connolly, barrister in Summons Court maintenance action, “I agreed to him sailing on these coastal vessels, but not to him having a girl in every port.”

Frank became a keen defence lawyer; most of his work was criminal. In an affectionate tribute on the fiftieth anniversary of Frank’s admission, James Crowley QC, recounted an early meeting between Dan Casey and Frank, seeking advice in advance of a trial. Casey advised that the first thing was to fully consider all the facts. Frank had done that. “Next, you must know the law thoroughly.” Frank had done that too. “Well if you’ve covered the facts and the law, how can I help you?” “Oh,” replied Frank, “I wanted you to fill me in on the bullshit.”

His practice also encompassed some civil work. For almost thirty years he appeared before the Medical Assessment Tribunal on behalf of the Medical Board. He was also often engaged as counsel in building disputes. But his real area of expertise was crime. Over the decades he represented men charged with rape and women suspected of murder; he defended thousands of Queenslanders from the Gold Coast’s Spiderman burglar to bottom-of-the-harbour’s Brian Maher. As an advocate, he was meticulous, exuberant, and persistent — to the exasperation of his opposing counsel and sometimes his judge. His turn of phrase appealed to juries. Defending Maher, he told the jury that the tax man had had a bad name since Palestine 2000 years ago and that tax evasion had become a national sport. A Crown witness “couldn’t lie straight in bed” and “couldn’t be believed if he sold ice creams in hell”. He had the gift of making his jury laugh. Yet they also grasped the passionate intensity of Frank’s belief in his client.

Frank would go to impressive lengths in pursuit of a defence. He once had a doctor friend take plaster casts of the offending, distended appendages of two clients charged with sexual assault to establish that the offence could not have been performed simultaneously.  Frank took the casts in his case to Court, determined to tender them; only to be dissuaded by his fellow defence counsel.

All his geese were swans and often his interest and concern would not end at their sentencing. He proudly displayed on the walls of his chambers the art of one of his clients who had taken up painting in jail. One of Frank’s celebrated cases was R v Tonkin & Montgomery [1975] Qd R 1, in which he succeeded in having Karen Tonkin’s conviction for murder reduced to manslaughter on the basis of diminished responsibility. And, typically, he stayed in touch with her while she was in Wolston Park. “How is Kaaren?” he would always ask as officers the Public Defender returned from a visit. And his concern continued after her release.

Frank also developed a practice in the Northern Territory and was at least twice offered an appointment to the Supreme Court of the Territory but life on the bench was not for him.

His Faith was, with his family, central to his life. The family motto — En Dieu est tout — was so apposite. A regular worshipper at St Stephen’s Cathedral, he would often arrange for people in strife, referred to him by the clergy, to be granted public defence, or would otherwise have a solicitor friend brief him, with both doing the job pro bono.

The St Vincent de Paul Society, of which he was a dedicated member, was also a source of work he did gratis. He would make weekly lunch time visits to men in various boarding houses around the City, Valley and Spring Hill areas, where he would listen to their plight, arrange for the delivery of any household goods they might need and to hand out vouchers redeemable at a major chain store.  On one occasion the store refused to provide tobacco and papers for a voucher — only food. A furious Frank sought out the manager and blasted him; finishing (minus a few expletives) with, “They might be poor but there’s no need to treat them poorly.”  

In a letter to The Catholic Leader, defending his friend, John Bathersby, Catholic Archbishop of Brisbane, after some reactionary Churchmen complained to Rome about His Grace’s support for the Vatican II innovation – General Absolution, Frank exhibited not just his eloquence, his knowledge of history and love for his Church, but the importance of friendship. He wrote, “I am a Catholic. My mother was an Anglican as was my late beloved wife and I have seen intimately the splendid way of Christian life in that part of our divided Christian Church.” He ended his letter, “But above all, let us respect our pastor. We are blessed with an archbishop of great goodness and wisdom. He is the one endowed by the Spirit of God to be our guide.  It is sad that he should be undermined by those in his care who, like unruly sons, rebel against the guidance of their father.”

Writing to an old friend a few weeks before his 80th birthday, Frank confessed, “Getting a bit slower but still fighting fit. I do a lot of Legal Aid work now – criminal cases. The law is becoming too complicated for the problems of this crazy age. Socrates the greatest Greek philosopher said the law can’t make people behave. It’s a moral problem – how to treat people decently.” And he finishes in characteristic style, “Well, you were always a man of few words. So I’d better stop now. Mary always told me, “You talk too much.” But I told her that was my profession.”

In January 2006, on the eve of his 90th birthday, he retired from criminal trials but for another eight years, he continued to care for his family, practice and defend his Faith, and polish his poetry.

His beloved wife Mary whom he nursed, then visited daily, through a long illness, died in 1995. His eldest daughter, Diana, whom he also cared for during her battle with motor neurone disease, died in 2008. He is survived by two daughters, Carolyn and Marina, and their children, who were with him when he died on 29 June.

Frank Glynn Connolly was a mighty man.

Mark McGinness
2 August 2014

[This is a revised version of the obituary that was published in The Courier-Mail on 1 August 2014 — Ed.]

SUMMARY

This article considers whether legal advice on the law of a foreign jurisdiction is privileged.  This question is particularly pertinent to in-house counsel.  The globalisation of commerce and the growth of multinational companies have seen an increase in the number of in-house counsel whose role may extend into jurisdictions in which they are not admitted.  The Queensland Supreme Court was asked recently in Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 (hereafter Aquila Coal) to consider whether advice provided by a foreign lawyer on Queensland law was privileged in circumstances where the foreign lawyer was not admitted in Australia.  The decision is significant because the court found, no doubt to the relief of many in-house counsel, that privilege can attach to such advice.  This article discusses the decision in Aquila Coal, together with the broader privilege issues that it raises, and considers its implications for the in-house profession.

INTRODUCTION

The proliferation in recent decades of multinational companies has witnessed the growth in global businesses whose operations span many jurisdictions. Those businesses frequently have permanent in-house legal capabilities.  Indeed, their in-house lawyers may themselves be based throughout a number of the jurisdictions in which the business operates.  From time to time, those lawyers may be asked to advise on legal issues concerning a jurisdiction in which they have not been admitted to practice. Is such advice protected by privilege?

In Aquila Coal, the Supreme Court of Queensland had to consider whether privilege attached to legal advice provided by an in-house counsel who was advising on Queensland law but who had not been admitted in Queensland, or indeed in any other jurisdiction in Australia.  Rather, the in-house counsel had been admitted in a foreign jurisdiction, namely New York. In short, the court found that privilege could attach to such advice.

This article discusses the decision in Aquila Coal and its implications.  It does so by reference to the three situations in which the application of privilege may arise when foreign law is involved, namely:

(a)    first, when a foreign lawyer advises on Australian law;

(b)    second, when an Australian lawyer advises on foreign law; and

(c)    third, when a foreign lawyer advises on foreign law.

The impact of the uniform evidence legislation on the application of privilege in these situations is also considered.

However, before discussing these issues, the test and rationale for the doctrine of legal professional privilege, together with the principles which have developed governing its application to in-house counsel, are revisited.

THE TEST AND RATIONALE FOR PRIVILEGE

It is well established that legal professional privilege is a substantive and fundamental common law right: Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission (2002) 

213 CLR 543¹.  It allows a party to withhold the disclosure of communications which are properly the subject of a claim to privilege.  The ability to withhold the disclosure of communications extends beyond adversarial proceedings and includes such matters as the ability to resist disclosure pursuant to a search warrant: Baker v Campbell (1983) 153 CLR 52.

The test of whether a communication or document is subject to legal professional privilege is whether the communication was made or the document was prepared for the dominant purpose of obtaining or providing legal advice (ie legal advice privilege) or to conduct or aid in the conduct of litigation in reasonable prospect (ie litigation privilege): Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at [2] and [61] per Gleeson CJ, Gaudron  and Gummow JJ.

Barwick CJ in Grant v Downs (1976) 135 CLR 674 put it like this (at 677):

Having considered the decisions, the writings and the various aspects of the public interest which claim attention, I have come to the conclusion that the Court should state the relevant principle as follows: a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.

The dominant purpose is a reference to the “ruling, prevailing, or most influential purpose”:
Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416.

The underlying rationale for legal advice privilege is perhaps best explained in a frequently cited passage by Mason J, as his Honour then was, Stephen and Murphy JJ in Grant v Downs (at 685):

The rationale of this head of privilege, according to traditional doctrine is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline.  This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor.  The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available.

In terms of procedure, where a party makes a valid claim to privilege over a document, that document need not be disclosed².   Typically, claims to privilege are made in the list of documents provided to the other party during disclosure, which, depending on the rules, may need to be verified by affidavit or, if a claim to privilege is challenged, may then need to be verified by affidavit.³.

If a party remains unsatisfied with the other party’s claims to privilege it may bring an application seeking disclosure of those documents.⁴ In such an application, the onus of establishing that the documents are privileged lies with the party asserting privilege: Grant v Downs (at 689); see also AWB v Cole (No 5) [2006] FCA 1234 at [44](1). During the course of the application, the court may inspect the documents to determine whether they attract privilege. Indeed, the High Court has stated that courts have exercised this power too sparingly in the past: Grant v Downs (at 689). This can be achieved, in a practical sense, by handing a confidential folder containing the documents to the judge, but not to the party contesting the privilege claim.

Cross-examination may be permitted during the application in order to determine the dominant purpose for which a document was created: Seven Network Ltd v News Ltd [2005] FCA 142 at [3].  Put another way, in determining whether a document was created for the dominant purpose of legal advice or anticipated litigation, it may be necessary to consider the state of mind of the person creating the document and to examine a number of diverse purposes and to balance them to resolve the question: Esso (at [73]).

Many of the cases dealing with privilege concern in-house counsel. This may be due to the special relationship that in-house counsel occupy. That is, an in-house counsel is both legal adviser and employee. For this reason, a significant amount of jurisprudence has developed addressing the position of in-house counsel.

THE POSITION OF IN-HOUSE COUNSEL

The starting point in any discussion on the application of privilege to in-house counsel is the High Court’s decision in Waterford v Commonwealth of Australia (1987) 163 CLR 54. That case concerned whether privilege attached to confidential communications between government agencies and their salaried legal officers that were undertaken for the purpose of seeking or giving legal advice.

In short, the High Court found that privilege could attach to such communications. Central to the court’s reasoning in Waterford were two factors: first, whether the salaried lawyers were independent of their employer, and secondly, whether the lawyers were competent. In upholding the privilege claim, Brennan J, as his Honour then was, stated (at 70):

If the purpose of the privilege is to be fulfilled, the legal adviser must be competent and independent. Competent, in order that the legal advice be sound and the conduct of litigation be efficient; independent, in order that the personal loyalties, duties or interests of the adviser should not influence the legal advice which he gives or the fairness of his conduct of litigation on behalf of his client. If a legal adviser is incompetent to advise or to conduct litigation or if he is unable to be professionally detached in giving advice or in conducting litigation, there is an unacceptable risk that the purpose for which privilege is granted will be subverted. As to competence, there is much to be said for the view that admission to practice as a barrister or solicitor is the sufficient and necessary condition for attracting the privilege, but the question was not argued and need not be decided.

Similarly, Mason J, as his Honour then was, and Wilson J stated (at 62):

Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment.

More recent decisions have developed these principles insofar as they apply to in-house counsel.

Thus, in Seven Network Ltd v News Ltd, Tamberlin J stated (at [4]-[5]):

The dominant purpose test has particular importance in relation to the position of in-house counsel because they may be in a closer relationship to the management than outside counsel and therefore more exposed to participation in commercial aspects of an enterprise. The courts recognise that being a lawyer employed by an enterprise does not of itself entail a level of independence. Each employment will depend on the way in which the position is structured and executed. For example, some enterprises may treat the in-house adviser as concerned solely in advising and dealing with legal problems. As a matter of commercial reality, however, both internal and external legal advisers will often be involved in expressing views and acting on commercial issues.

The authorities recognise that in order to attract privilege the legal adviser should have an appropriate degree of independence so as to ensure that the protection of legal professional privilege is not conferred too widely.

Thus, Tamberlin J was also concerned with determining whether the in-house counsel had “an appropriate degree of independence” before privilege could attach. It is clear from the above comments that Tamberlin J was also cognisant of the difficulties that can arise where an in-house counsel’s role may extend into commercial matters. In this regard, his Honour’s conclusion was significant (at [38]):

I am cognisant of the fact that there is no bright line separating the role of an employed legal counsel as a lawyer advising in-house and his participation in commercial decisions. In other words, it is often practically impossible to segregate commercial activities from purely “legal” functions. The two will often be intertwined and privilege should not be denied simply on the basis of some commercial involvement.  In the present case, however, I am persuaded that [the in-house counsel] was actively engaged in the commercial decisions to such an extent that significant weight must be given to this participation.  In many circumstances where in-house counsel are employed there will be considerable overlap between commercial participation and legal functions and opinions.  As can be seen from the specific rulings below, I am not persuaded that in this proceeding [the in-house counsel] was acting in a legal context or role in relation to a number of the documents in respect of which privilege was claimed.  Nor am I persuaded that the privilege claims were based on an independent and impartial legal appraisal.

Thus, Tamberlin J was of the opinion that the in-house counsel had crossed the rubicon and was not acting in a legal role in relation to a number of the documents over which privilege had been claimed.  Each case, of course, turns on its own facts.  For this reason, his Honour’s remark that “privilege should not be denied simply on the basis of some commercial involvement” is noteworthy.

In Telstra Corp Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445, Graham J set out a test for when an in-house lawyer lacks the necessary measure of independence (at [35]-[36]):

In my opinion an in-house lawyer will lack the requisite measure of independence if his or her advice is at risk of being compromised by virtue of the nature of his employment relationship with his employer.  On the other hand, if the personal loyalties, duties and interests of the in-house lawyer do not influence the professional legal advice which he gives, the requirement for independence will be satisfied.

In the case presently before the Court, there is no evidence, as I have earlier remarked, going to the independence of the internal legal advisers involved in the communications said to have been brought into existence for the dominant purpose of providing or receiving legal advice.  There is nothing to indicate from the description of the six documents with which the Court is presently concerned that they must be documents for which privilege is properly claimed.  Different considerations may apply if, say, the documents in question were opinions expressed by identified senior counsel where one might start off with the premise that by its nature the document would have privilege attaching to it.  This is not such a case.

Thus, Graham J considered that the requirement for independence would be satisfied provided that the personal loyalties, duties and interests of an in-house lawyer do not influence the lawyer’s advice. Resolving this question, however, is not a straight forward matter for a court.

In Australian Hospital Care (Pindara) Pty Ltd v Duggan (No 2) [1999] VSC 131, Gillard J discussed the burden of proof in relation to a claim for privilege by an in-house counsel:

In my opinion once the client swears the affidavit of documents claiming legal professional privilege in a way which leads the court to the conclusion that the claim is properly made, then the prima facie position is that the legal adviser was acting independently at the relevant time.

It follows that if any other party to the litigation disputes the claim for legal professional privilege then it has the evidentiary burden of establishing facts which prima facie rebut the presumption.

…

If the party opposing the claim for privilege does establish facts which rebut the prima facie presumption then in the end result the party claiming the privilege must establish the propriety and validity of the claim.

The court may, after considering the issues, reach the conclusion that the lawyer was acting independently and accordingly the privilege is upheld, or that the lawyer was not acting independently and accordingly there is no privilege, or the court may reach a position where it is in doubt.  If the latter stage is reached then the court should inspect the documents to determine the propriety and validity of the claim.

… the mere fact that the legal adviser is an employee of the client or that his duties may involve performing non-legal work do not establish that at the relevant time he was not acting independently.  It is recognised that employees will perform non-legal work and it is an essential element of the establishment of the privilege that at the relevant time the employee was performing legal work.  The fact of employment is relevant but the weight to be attached to that fact in considering independence will depend on all the circumstances.⁵

Thus, Gillard J considered that the fact of employment does not result in a lack of independence. Like Tamberlin J in Seven Network Ltd v News Ltd Gillard J also found that simply because the in-house counsel’s duties involve non-legal work does not mean that the in-house counsel’s legal work is not privileged.

However, legal advice privilege can only ever attach when legal advice is actually given or requested by an in-house counsel.  With modern communications, in-house counsel are no doubt the recipients of emails that are sent to others within the business, but which are copied to the in-house counsel.  Simply copying an email to an in-house counsel will not be sufficient to attract privilege unless that is done for the dominant purpose of seeking legal advice, or to conduct or aid in the conduct of actual or anticipated litigation. In this context, Katzmann J stated in Dye v Cth Securities Ltd (No 5) [2010] FCA 950 (at [50]):

The email appears to have been copied to [the in-house counsel] for the purpose of keeping him informed of the status of the applicant’s complaints and so that he was aware of what Mr Carroll was doing about them, not for the dominant purpose of seeking his legal advice or to conduct or aid in the conduct of litigation in reasonable prospect.

Nonetheless, the overriding principle remains that communications involving in-house counsel are capable of attracting privilege, provided the other requirements for a privilege claim are established.  Put another way, whilst a court may look at the position of in-house counsel more closely, “there is no doubt that legal professional privilege may attach to communications with a lawyer who is a salaried employee”: GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146 per Holmes J (as her Honour then was) at [14].

How then do these principles operate when questions of foreign law are involved?  It is worth noting at the outset that the principles discussed below apply equally to any legal advisers.  However, it is likely that in-house counsel will encounter these issues more frequently than lawyers in private practice.

FIRST SITUATION: FOREIGN LAWYER ADVISING ON AUSTRALIAN LAW

Turning then to the first situation in which questions of foreign law may arise — when a foreign lawyer advises on Australian law.

This was the situation which confronted Boddice J in Aquila Coal.  In that case, Aquila Coal had entered into a joint venture agreement with the defendant, Bowen Central Coal Pty Ltd (BCC), for the development of a proposed mine in central Queensland.   The application before the court concerned Aquila Coal’s claim that certain documents over which BCC claimed privilege were not in fact privileged and should be disclosed.

A preliminary issue for determination was a submission by Aquila Coal that documents created by BCC’s in-house counsel were incapable of attracting privilege.  This was because the in-house counsel had never been admitted as a lawyer in Australia. Instead, BCC’s in-house counsel had been admitted in a foreign jurisdiction, in this case New York.  Thus, the question for the court was whether advice provided by a foreign lawyer on questions of Australian law could attract privilege.

Central to Aquila Coal’s argument was the Queensland Court of Appeal’s decision in Glengallan Investments Pty Ltd v Arthur Anderson [2002] 1 Qd R 233.  In that case, the court was required to determine whether privilege could attach to advice provided by partners at Arthur Anderson who held law degrees, but were not admitted to practice.  The Court of Appeal found that the advice was not privileged because privilege “can only attach where a lawyer admitted to practice is involved”: (at 245).  However, the court was silent as to whether admission to practice in Australia was required, or whether it was sufficient to be admitted in a foreign jurisdiction.

In seeking to uphold its claim to privilege, BCC relied upon McLelland J’s decision in Ritz Hotel Ltd v Charles of the Ritz Ltd [No 4] (1987) 14 NSWLR 100.  That case concerned a claim for privilege by an in-house counsel who was a member of the New York State Bar.  In upholding the claim to privilege, McLelland J stated (at 101-102):

The author of the document, Mr Morrazzo, is a qualified lawyer and member of the Bar of the State of New York and the Federal District Court for the Southern and Eastern Districts of New York.  He is an expert of trade mark law.  He is employed by Revlon Inc, the parent company of the second defendant, in what is called its Law Department, which consists of a group of attorneys and their support staff, whose function is to provide legal advice and counsel to the management of Revlon Inc and its subsidiaries. …

I am satisfied that the sole purpose of the bringing into existence of this memorandum was to provide legal advice on these matters to Revlon Inc in connection with the proposed acquisition, that in doing so Mr Morrazzo was acting in his capacity as a professional legal adviser to the company, and that the memorandum was of a confidential nature.

It was submitted that because many of the trade marks were registered in foreign countries and that the litigation (or much of it) was in foreign courts, Mr Morrazzo was not competent to give legal advice in relation to such matters, notwithstanding his legal qualifications in the United States.

I do not consider that legal professional privilege is as limited as this submission would suggest. … it seems to me that legal professional privilege is not confined to legal advice concerning or based on the law of a particular jurisdiction in which the giver of the advice has his formal qualification.  For instance, I have no doubt that legal advice by a lawyer qualified in New South Wales on matters involving the law of, for example, Victoria or the United Kingdom, would, in appropriate circumstances, attract legal professional privilege. Similarly, and  particularly in a field with such international ramifications as trade mark law, I see no reason why legal advice from a lawyer qualified in New York, concerning trade marks and trade mark litigation in another country, would not, in appropriate circumstances attract legal professional privilege.

Whilst Charles of the Ritz was no doubt of assistance in seeking to uphold BCC’s claim to privilege, the ratio of that decision is not clear.  Whilst it is clear that the in-house counsel in that case was qualified in New York, it is unclear from the judgment which country’s laws the in-house counsel was advising on.  Further, the advice concerned trade mark law, a field with “international ramifications”.  Does it make a difference if the advice concerns issues that do not have international ramifications?

Charles of the Ritz was referred to, without disapproval, by Holmes J (as her Honour then was), in GSA Industries (Aust) Pty Ltd.  Again, that case concerned the position of in-house counsel. Her Honour’s comments are significant:

There is no amplification in the material submitted on behalf of the respondent as to what the position of legal counsel entails, and it is not asserted that Mr Moratti is admitted to practise as barrister or solicitor.

There is no doubt that legal professional privilege may attach to communications with a lawyer who is a salaried employee. The question was considered in The Attorney-General for the Northern Territory of Australia v Kearney and answered in the affirmative, at least in relation to government employees, in Waterford v The Commonwealth of Australia. In Ritz Hotel Ltd v Charles of the Ritz Ltd McLelland J concluded that a company employee who was a qualified lawyer and a member of the New York State Bar, was acting as a professional legal adviser whose communications were capable of attracting legal professional privilege. It is to be noted, however, that the lawyer in that case was admitted to practice, albeit in another jurisdiction.

…

Whether admission to practise be relevant to independence or to competence, it is clear, in this State at least, that privilege exists only in respect of legal advisers admitted as barrister or solicitor: Glengallan Investments Pty Ltd v Arthur Andersen.  Having regard to that authority, and the absence of any evidence that Mr Moratti was an admitted practitioner, I conclude, inevitably, that his communications, whether involving legal advice or not, could not attract privilege as the communications of a legal practitioner.⁷

In Aquila Coal, Boddice J had to consider the application of the above principles to BCC’s claims to privilege.  Usefully, his Honour summarised the position governing the application of privilege to in-house counsel as follows:

Where the legal advisers are employees of the party to the litigation, legal professional privilege may still attach, provided the claim relates to a qualified lawyer acting in the capacity of an independent professional legal adviser. Independence is crucial, as an important feature of inhouse lawyers is that at some point the chain of authority will result in a person who is not a lawyer holding authority, directly or indirectly, over the inhouse lawyer. The relevant question for consideration is whether the advice given is, in truth, independent.

In the case of inhouse lawyers, there is no presumption of a lack of independence.⁸

Thus, again, independence is critical and the court does not start with a presumption that an in-house counsel lacks independence.  Ultimately, his Honour concluded that “the authorities relied upon by [Aquila Coal] do not support a finding that legal professional privilege cannot attach to the advice given by [BCC’s] inhouse lawyers or to the instructions provided to those inhouse lawyers, simply because [BCC’s] general counsel was not admitted as a legal practitioner in Australia”: (at [22]).  The essence of his Honour’s reasoning is found in the following passages:

A conclusion that legal professional privilege can attach to the documents in question, notwithstanding that the defendant’s general counsel is not admitted as a legal practitioner in Australia, is consistent with the purpose of, and rationale behind, the doctrine of legal professional privilege.

Legal professional privilege is the privilege of the client, not the lawyers. It exists even where the client erroneously believed the legal adviser was entitled to give the advice. It would be contrary to the notion of the privilege being that of the client that the client should lose the privilege merely by reason that the legal adviser, who is admitted elsewhere, is not admitted in Australia.⁹

In reaching this finding, his Honour also dealt with a submission by Aquila Coal that (1) the restrictions on the in-house counsel practicing law contained in the Legal Profession Act 2007 (Qld) (the LPA) and (2) the in-house counsel’s lack of a practising certificate, both supported a conclusion that privilege should not apply. His Honour stated:

The provisions of the Legal Profession Act 2007 (Qld) (and their corresponding equivalents in the other jurisdictions in Australia) also do not support such a finding.  That Act provides for the regulation of legal practitioners.  It does not purport to regulate the availability of legal professional privilege.  Further, the lack of a current practising certificate, whilst a very relevant factor in determining whether legal professional privilege exists in respect of advice given by inhouse legal representatives, is not determinative of the existence of privilege.¹⁰

Thus, his Honour did not consider the provisions of the LPA were relevant in determining whether privilege applied, nor was his Honour persuaded to reject the privilege claim by reason of the absence of a practising certificate.  Putting this aside, it is nonetheless important for any lawyer to abide by the practising requirements contained in the LPA, given the potential ramifications for that lawyer of not doing so.

In summary, legal advice privilege can still attach to advice provided by a foreign lawyer on questions involving Australian law, provided that the foreign lawyer is admitted in a foreign jurisdiction and displays the necessary degree of independence from the business.¹¹ Similarly, litigation privilege can also attach to documents created by that lawyer for the dominant purpose of conducting or in aid of litigation in Australia, again, provided that those same conditions apply.

What then of the converse situation?  That is, where an in-house counsel admitted to practice in Australia advises on foreign law?

SECOND SITUATION: AUSTRALIAN LAWYER ADVISING ON FOREIGN LAW

The second situation in which questions of foreign law may arise is where an Australian lawyer advises on questions involving foreign law.  It is this situation which is perhaps of most significance to in-house counsel who are admitted in Australia, but not admitted in the foreign jurisdiction.

Take the following example. A general counsel works in Australia for a British-based oil and gas company. The general counsel has been admitted in Australia, but not elsewhere.  The general counsel reports to the global head of legal in London and is responsible for the legal function of the company’s operations in Australia, New Zealand and South East Asia.  The general counsel advises on a contract governed by Singaporean law. Is such advice privileged?

Again, in order for privilege to apply, the necessary pre-conditions discussed above would need to be met.  That is, the general counsel would need, at the least, to be admitted in Australia.  The advice would also need to be confidential and provided by the general counsel acting in the capacity of an independent professional legal adviser.  Beyond that, there does not appear to be any authorities concerning whether advice by an Australian lawyer on foreign law can attract privilege.

In principle, if the decision in Aquila Coal is followed, such advice may also be privileged.  Applying his Honour Boddice J’s reasoning, such a finding would be consistent with the purpose of and rationale behind the doctrine of legal professional privilege.  That is, it would be contrary to the doctrine of privilege that privilege should be lost merely by reason that the general counsel, whilst admitted in Australia, is not admitted in the foreign jurisdiction in respect of which the advice is given, namely Singapore.¹²

However, a respectable argument exists that such advice is not privileged. It is this.  The in-house counsel’s employer must know, or, at the least, ought to know, that the in-house counsel is not admitted in Singapore.  It is not a case of a lay client mistakenly believing that a solicitor was admitted to practice, in which case, privilege can still apply: see Grofam v ANZ (1993) 45 FCR 445.  In Grofam, the Full Federal Court reached this view because “legal professional privilege is essentially concerned with the protection of the client” (at 456).

Turning then to the case at hand — why does an in-house counsel’s employer require any “protection” when it knows, or ought to know, that the in-house counsel is not admitted in Singapore?  Put another way, what public interest exists in maintaining privilege in those circumstances?  Indeed, is there even a relationship of lawyer and client upon which privilege could attach?

Perhaps the most that can be said is that, on the current state of the authorities, doubt exists as to whether privilege attaches to legal advice provided by an Australian lawyer on foreign law.  Whilst the reasoning in Aquila Coal suggests that it does, that case did not decide this point.

For this reason, in-house counsel would no doubt take comfort from a decision in which the ability of privilege to apply in these circumstances is confirmed.

THIRD SITUATION: FOREIGN LAWYER ADVISING ON FOREIGN LAW

The third situation in which questions of foreign law may arise is where a foreign lawyer advises on questions involving foreign law.  Changing the above factual scenario slightly, the British oil and gas company again requires advice on a contract which is governed by Singaporean law.  Instead of providing the advice in-house, the general counsel engages a Singaporean law firm to provide the advice on Singaporean law.  Is such advice privileged from disclosure in proceedings brought in Australia?

This question came before the Full Federal Court in Kennedy v Wallace (2004) 142 FCR 185.  In obiter, Allsop J (as his Honour then was) discussed whether privilege could apply in this situation.  His Honour started by considering the reality of modern commercial life in which the assistance of foreign lawyers may be necessary:

Members of the community may well need to seek the assistance of foreign lawyers. The considerations of the kind that Wilson J spoke of in Baker v Campbell: the multiplicity and complexity of the demands of the modern state on its citizens, the complexity of modern commercial life and the increasing global interrelationships of legal systems, commerce and human intercourse, make treatment of the privilege as a jurisdictionally specific right, in my view, both impractical and contrary to the underlying purpose of the intended protection in a modern society.¹³

Thus, given the realities of the modern world, his Honour considered that privilege should not be restricted to advice on local law. Put another way, Allsop J considered that privilege should not be a “jurisdictionally specific right”. In upholding the claim to privilege, Allsop J also relied on the rationale underpinning the privilege doctrine:

A refusal to recognise foreign lawyer’s advice privilege or narrowly to constrict advice privilege to the precise communication requesting or imparting the advice … would undermine the rationale of the privilege. It would also undermine the administration of justice by enlivening a threat in this jurisdiction to the confidentiality of communications which would otherwise be protected in other places.

…

The above conclusion as to the place of foreign lawyers undermines, from a legal perspective, any view which may be taken to have been expressed by the primary judge that the claim for privilege must fail for lack of connection between the advice and the administration of justice in Australia because it was advice of a foreign lawyer.¹⁴

In short, his Honour considered there was “no basis for viewing foreign lawyers and foreign legal advisers differently to Australian lawyers and legal advice”.¹⁵

Interestingly, his Honour left open the question of whether advice on foreign law by a foreign lawyer could be privileged in Australia in circumstances in which the advice was not privileged under the foreign law. His Honour stated:

Also, nothing I have said should be taken as expressing a view on the existence of privilege in Australia where, under the legal system governing the foreign lawyer, or under the legal system of the state where the advice was given, no privilege would attach.¹⁶

In summary, if Allsop J’s remarks find support elsewhere,¹⁷ there is nothing to prevent advice on foreign law by a foreign lawyer from attracting privilege.

THE IMPACT OF THE UNIFORM EVIDENCE ACT REGIME

The common law position, as set out above, has been modified somewhat in the jurisdictions in which the uniform evidence legislation applies.  For convenience, the provisions of the Commonwealth Act, the Evidence Act 1995 (Cth) (the Evidence Act) are referred to below.

The Evidence Amendment Act 2008 (Cth) made a number of changes to the Evidence Act, including changes with respect to the application of privilege.  These changes implemented the majority of recommendations made in a joint report published by the Australian, NSW and Victorian Law Reform Commissions in February 2006.

Under s 118 of the Evidence Act, privilege can attach to a confidential communication between a client and a “lawyer”.  The 2008 amendments extended the definition of “lawyer” to include foreign lawyers. In particular, a “lawyer” now includes “Australian registered foreign lawyers” and “overseas registered foreign lawyers”: s 117.  An “Australian registered foreign lawyer” is a person registered as a foreign lawyer under the law of one of the States or Territories.¹⁸ An “overseas registered foreign lawyer” is a natural person who is properly registered to engage in legal practice in a foreign country by an entity that has that function.¹⁹ Thus, by these amendments the definition of lawyer includes anyone that is properly registered in a foreign country as a lawyer.

Noticeably, however, the Act is silent as to whether privilege attaches to advice provided by a lawyer on the law of a jurisdiction other than the one in which they are admitted to practice.

Relevantly, the Explanatory Memorandum introducing the new definition of lawyer stated:²⁰

This item also extends the definition of “lawyer” so that it includes a person who is admitted in a foreign jurisdiction.  The rationale of client legal privilege to serve the public interest in the administration of justice and its status as a substantive right means it should not be limited to advice obtained only from Australian lawyers.  This position reflects the reasoning of the Full Federal Court in Kennedy v Wallace (2004) 142 FCR 185.

Thus, privilege should not be restricted to advice from Australian lawyers.  As the Explanatory Memorandum notes, the amendments are said to reflect the common law position in Kennedy v Wallace. Kennedy v Wallace, however, only dealt with the third situation identified above, that is, where a foreign lawyer advises on foreign law.  Thus, s 118 confirms that such advice is privileged.  However, Kennedy v Wallace was not concerned with the first or second situations identified above, that is, where a foreign lawyer advises on Australian law, or an Australian lawyer advises on foreign law.  For that reason, the amendments do not seem to have any application to these two situations.  The common law, as discussed earlier, still applies.  The amendments only impact upon the third situation (ie. foreign lawyer advising on foreign law) and simply reflect the position at common law.  Thus, in summary, the expanded definition of “lawyer” in the Evidence Act does not seem to have changed the common law position that applies in any of the three situations discussed earlier.

Further, it is worth noting that the Evidence Act only applies to privilege claims at trial, and to certain interlocutory processes or document requests pursuant to a court order.²¹ The Evidence Act has no application to non-curial proceedings.

Before concluding, s 119 of the Evidence Act also requires comment. That section is headed “Litigation” and establishes a statutory test for claiming litigation privilege.²²   It extends privilege to confidential communications between a lawyer and a client made for the dominant purpose of providing “professional legal services” with respect to actual, anticipated or pending proceedings in Australia or in an overseas court. Privilege also attaches to confidential communications between a lawyer and another person, as well as the contents of a confidential document, provided the communication was made, or the document was prepared, for that same dominant purpose.  In order for the privilege to apply, it is also necessary that the client “is or may be, or was or might have been” a party to the Australian or overseas proceedings.

The same expanded definition of “lawyer” as set out above applies.  Thus, communications with foreign lawyers acting for clients in proceedings before an overseas court can attract privilege. In particular, the provision of “professional legal services” to such a client is privileged if that was the dominant purpose of the communication. “Professional legal services” is not defined in the legislation. Odgers²³  takes the view that a document prepared for use in such proceedings will be privileged.²⁴

Thus, in short, the effect of the expanded definition of “lawyer” seems to be this.  Privilege may be claimed over communications with foreign lawyers with respect to actual, anticipated or pending proceedings in foreign courts provided that the dominant purpose of the communication was for the provision of “professional legal services”. Similarly, privilege may be claimed over documents prepared for use in such proceedings, again provided that that same dominant purpose is present. In this manner, s 119 provides statutory recognition of litigation privilege to communications with foreign lawyers in relation to foreign proceedings. No doubt this is welcome news for multinational companies who may be involved in a number of cross-border disputes at any one time.

CONCLUSION

The decision in Aquila Coal represents a significant win for the in-house profession.  It confirms that advice on Australian law provided by a lawyer admitted in a foreign jurisdiction can attract privilege.  That is, privilege can still attach to the advice even though the foreign lawyer was not admitted in Australia.

In Aquila Coal, the court grounded its decision by looking to the purpose of, and rationale behind, the doctrine of privilege.  The court reasoned that it would be contrary to the notion of privilege that privilege could be lost by reason of the lawyer being admitted elsewhere, but not in Australia. Adopting that same analysis, advice on foreign law by lawyers admitted in Australia may also attract privilege – provided, of course, that the other requirements for a privilege claim are met.  However, as outlined above, there is a respectable argument to the contrary.  The amendment to the definition of “lawyer” in the Evidence Act does not seem to have changed the position at common law.  Thus, judicial confirmation that privilege can apply to advice on foreign law would no doubt be welcome news for multinational companies and their in-house counsel.

Dan Butler
Barrister at Law, Gerard Brennan Chambers

 

I am grateful to Chris Crawford for comments on an earlier draft of this article.

This article has been reproduced with the kind permission of Thomson Reuters (Professional) Australia Limited (www.thomsonreuters.com.au).  This article was first published in February 2014 by Thomson Reuters in the Australian Business Law Review and should be cited as In house counsel advising on foreign law: is it privileged,? Butler, (2014) 42 ABLR 5.  For all subscription inquiries please phone from Australia: 1300 304 195, from Overseas +61 2 8587 7980 or online at www.thomsonreuters.com.au/catalogue.  The official PDF version of this article can also be purchased separately from Thomson Reuters.

This publication is copyright.  Other than for the purposes of and subject to the conditions prescribed under the Copyright Act (Australia) 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission.  Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited, PO Box 3502, Rozelle, NSW, 2039 or online.

 

1. At [9], [11], [44] and [132].
2. See eg, r 212 of the Uniform Civil Procedure Rules 1999 (Qld); r 21.5 of the Uniform Civil Procedure Rules 2005 (NSW).
3. See r 213 of the Uniform Civil Procedure Rules 1999 (Qld); r 21.4 of the Uniform Civil Procedure Rules 2005 (NSW); r 29.04 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and r 20.17 of the Federal Court Rules (Cth).  Some rules provide that the affidavit must be made by a person who knows the facts giving rise to the claim: see r 213 of the Uniform Civil Procedure Rules 1999 (Qld); r 29.10 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).
4. See eg. R 223 of the Uniform Civil Procedure Rules 1999 (Qld).
5. Australian Hospital Care (Pindora) Pty Ltd v Duggan (No 2) [1999] VSC 131 at [67], [68], [70], [71], [81] and [82].  Relied upon by Boddice J in Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 at [9].
6. Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 at [1].
7. GSA Industries (Aust) Pty Ltd v Constable [2002] 2 Qd R 146 at [13], [14] and [17].
8. Aquila Coal Pty Ltd v Bowen Central Pty Ltd [2013] QSC 82 at [8] and [9].
9. Aquila Coal Pty Ltd v Bowen Central Pty Ltd [2013] QSC 82 at [24] and [25].
10. Aquila Coal Pty Ltd v Bowen Central Pty Ltd [2013] QSC 82 at [23].
11. See also Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529 at 536 (Templeman LJ); referred to in Grofam v ANZ (1993) 45 FCR 445 at 455.
12. Aquila Coal Pty Ltd v Bowen Central Pty Ltd [2013] QSC 82 at [25].
13. Kennedy v Wallace (2004) 142 FCR 185 at [200].
14. Kennedy v Wallace (2004) 142 FCR 185 at [202] and [216].
15. Kennedy v Wallace (2004) 142 FCR 185 at [207].
16. Kennedy v Wallace (2004) 142 FCR 185 at [214].
17. See Australian Crime Commission v Stewart [2012] FCA 29, upheld on appeal: Stewart v Australian Crime Commission (2012) 206 FCR 347.
18. See the definition in the Dictionary and reg 10 of the Evidence Regulations 1995 (Cth).
19. See the definition in the Dictionary.
20. Explanatory Memorandum to the Evidence Amendment Bill 2008 at [174].
21. See Esso v Federal Commissioner of Taxation (1999) 201 CLR 49 and s 131 of the Evidence Act 1995 (Cth).
22. Although the section can also extend to legal advice: see Odgers S, Uniform Evidence Law (100th ed, Thomson Reuters, 2012) at [1.3.10720].
23. Odgers, n 22 at [1.3.10720].
24. Relying upon Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526.

I had seen the 2002 movie based on the book when it had come out.

But Greene’s novels I had, for some unfathomable reason, allowed to pass me by. 

Greene was one of my parents’ favourite authors, along with AJ Cronin, Somerset Maugham and John Steinbeck. But, until two years ago, I had failed to read a single Greene novel. One wonders why. They are short, easy to read, beautifully written and on subjects that grab my attention. There has been, in recent times, a Graham Greene reading rush among my spouse and at least two of my children. But there it is. I have failed to get aboard.

After my famous trip to Mexico for Seb and Beca’s wedding, my chamber colleague, Robbie, lent me his copy of The Power and the Glory, a novel about an alcoholic priest in the free and sovereign state of Tabasco in the 1930s when being a priest in Tabasco was not good for one’s longevity. That was my introduction to the Greene novel. It should have been enough to have me attacking the whole anthology.

The Quiet American is set in Saigon, post General Lattre and prior to Dien Bien Phu, perhaps, 1952. It commences at its conclusion and is, accordingly, told in retrospect by its British journalist narrator, Fowler.

The Quiet American is a love triangle taking place against the background of a vicious and complicated war. Fowler’s woman, Phuong, which means Phoenix, leaves him for Alden Pyle, the eponymous quiet American. This is happening, however, amid a strange and accidental friendship between the two men: Fowler, the “reporter” who withholds judgement and refuses to commit to position or side and Pyle, the innocent ideologue, who means good to all but blunders into creating a savage mayhem.

Zadie Smith calls the set of relationships a shady triad. Ms. Smith points out that the three characters’ contrasting lives and personalities are balanced, one against another, such that the reader never feels comfortable to make a final judgement upon, or in favour of, any one of the three characters. 

I stumbled upon Zadie Smith’s excellent essay on Greene and The Quiet American. My friend, A., and I often chat in a coffee line or a lift. We seldom chat about books. It was an inspired idea then for A. to ask me what I was reading when I was still only half way through The Quiet American. I told him. He had finished it a few days earlier and it was A. who recommended Ms. Smith’s essay which was the introduction to the edition of the book he was reading.

Ms. Smith emphasises the subtle lines which are used to portray the characters in a Greene novel. She compares Greene’s work to that of Henry James, apparently, a favourite author of Greene’s childhood. Certainly, the reader of The Quiet American cannot trust Fowler’s descriptions of himself. Throughout the novel, Fowler describes himself as a reporter, not a leader writer. He does not take sides. He does not commit to ideas or people. Though eschewing cynicism, he is a reporter who simply calls the action as it happens, without blame or justification.

If the novel is the chronicling of a finding of commitment by Fowler, the reader is no less convinced of the innocence (or quietness) of Pyle by the end of the novel. Is Fowler one who not only fails to know himself but one who gets it wrong even when he is simply calling the action? The unreliable narrator places the novelist and reader at worse than arms’ length. No judgement can be trusted and the reader is left still puzzling, weeks and months after the final page is turned and read.

Perhaps, Ms. Smith’s most useful insight concerns the journalistic style with which Greene relates his novels. Critics should stop denying the journalistic nature of Greene’s novels, she says, but, rather, claim him as the greatest journalist of all time.

I am drawn to Greene’s turn of phrase. I fall in love with the quotable sentences that permeate the book and are capable of turning up in quotation books everywhere.

The innocence thesis is set out early in the book. Pyle is innocent but Fowler, as narrator, is aware of the dangers that innocence brings: “It never occurred to me that there was greater need to protect myself. Innocence always calls mutely for protection when we would be so much wiser to guard ourselves against it: innocence is like a dumb leper who has lost his bell, wandering the world, meaning no harm”.

And on time and revenge: “Time has its revenges, but revenges seem so often sour. Wouldn’t we all do better not trying to understand, accepting the fact that no human being will ever understand another, not a wife a husband, a lover a mistress, nor a parent a child?” What chance does a reader have on that premise?

 Zadie Smith said that, reading the novel again, she was made conscious of all the Pyles of the world and the dangers they pose and the evil they do.

Though I grew up in confronting the Vietnam War, I felt I obtained a better understanding of that (later) conflict and the country, itself, from The Quiet American than I did from any of my reading of the time. 

If, like me, Greene somehow slipped past you, rectify that wrong next chance you get. If you are an old friend, re-visit the pages of this novel, at least. Among all the subtleties and uncertainties of characters and morality, we take plenty away from Mr. Greene’s writing. Maybe, he is, indeed, the great journalist.

Almost uniformly, the Blokes loved The Quirt American. Maybe, they, also, had inherited their appreciation from their parents. And we endured the four point loss in the football game. Maybe, we had learned that life is complex and winning streaks that extend to nine cannot be expected.

One more happy phrase to carry with you through the day: “There was starlight, but no moonlight. Moonlight reminds me of a mortuary and the cold wash of an unshaded globe over a marble slab, but starlight is alive and never still, it is almost as if someone in those vast spaces is trying to communicate a message of good will, for even the names of stars are friendly.”

Even when your team loses. 

Stephen Keim

 

Alternative Dispute Resolution

Another relatively modern trend is alternative dispute resolution. What do you think about that?

Amongst your achievements as President was the instrumental role you played in the construction of the Inns of Court. Persuading so many barristers to agree on that proposal must count as one of your greatest feats of advocacy?

The statue, “Advocacy”, that we see in the foyer of the Inns was sculpted by Mrs Hampson. What was the story behind that?

The statue is of a barrister, a man, a woman and a child. Is the barrister you?

At the time, I didn’t think it was intended by Catharina to be anybody to be honest. More recently, she disclosed that the barrister’s head was inspired by a wax-bronze bust she made of me prior to the making of ‘Advocacy’. I was completely unaware of that until then. Apparently, certain changes were made by Catharina to avoid the possibility of an exact likeness to me and she also said that the woman and child were inspired by the writings of Patrick White.

It conveys a wonderful impression of a barrister — someone who is helping others?

Before we leave the topic of the Inns of Court, it would be remiss of me not to seek your help to solve a mystery. After entering the lift on the ground floor of the Inns, one finds that you travel very quickly to Level 5. The reason of course is that Levels, 1, 2, 3 and 4 seem to have vanished. Can you shed any light on that?

They certainly got lost at some point, but I don’t know how they got lost. I think it was something inspired by the builders. They also had a theory that was current at the time that you shouldn’t have a Level 13 in the building either. And I said, “Won’t that be funny though?” But they didn’t think it was funny at all.

One of the theories that abounds is that, by starting the floor count at 5 instead of 1, the Inns would end up having a higher numbered top floor than the building which then housed the Bar in Sydney. In that way, so the theory goes, the Inns would be seen to be one floor higher. Could that be correct?

How did you prepare for a case? 

What you are describing is of course simply hard work?

Because good preparation is a function of hard work, I expect you worked many long hours over your career?

Did you work much at home?

You always seem to be involved in many other things outside the law. Is it important to a barrister to have outside interests?

Do you think leading a more rounded life might make you a better barrister?

Did you notice any change in the quality of the briefs delivered to you over your years in practice? 

Despite a long and phenomenally successful career, you never accepted judicial appointment. Why not?

Is a good judgment a short judgment?

As long as you make the necessary points in it. And that in itself raises the question again of your discretion as to what the points should be. But it should be a short judgment consistent with covering the points. Now there are a lot of judges who think they’re going to write themselves into immortality by spending pages and pages going on about one point or another.

Unless you’ve got a good writing style to keep the people’s interest up, they won’t read it. They’ll just go right to the end and see which way you’ve decided. That’s all they’re interested in. Even though, when you wrote it, you thought it was going to be fascinating.

All right, let’s turn to judicial appointments generally. The system for appointments remained largely unchanged throughout your whole career. Does it work well or do you think there is a case for an independent body to make appointments in preference to the Executive?

   
How many judges were sitting when you started at the Bar?

Over a career of almost 50 years as a barrister and, for most of those years as leader of the Bar, how did you maintain your motivation?

Do you miss practice?

Is there a future for the Bar?

A number of lectures were given a couple of years ago for the New South Wales Bar Association that are collected in a book entitled, “Rediscovering Rhetoric”. Justices McHugh and Kirby gave two of those lectures and used them to debate whether there had been a “decline in the barrister class”. McHugh was for that notion and Kirby, perhaps not surprisingly, disagreed. Kirby argued that, in years gone by, big cases attracted a great deal of interest from the public. They were closely followed by the press and reported intensely. He maintained that court cases were a form of entertainment whereas now, there are different calls on our time and more instantaneous or attractive forms of entertainment. Do you have a view about that?

You have recently published your sixth novel, Occasions of Sin. Are there any plans afoot to publish your memoirs? 

That presents a bit of a conundrum of course?

Ascot, Brisbane
3 September 2010

 

Photos courtesy of The Supreme Court Library.

 

David Bratchford
Supreme Court Librarian

www.sclqld.org.au

Our vision is to be a leader in legal information service provision for Queensland.  

In order to achieve that we rely on a group of dedicated and expert staff members possessing a unique mix of professional and technical expertise.  Much of our work takes place behind the scenes, but this month I would like to introduce two key librarians who drive the delivery of information services for BAQ members—Carlo Iacono and Brendon Copley.  

Both are talented information professionals with a strong commitment to engaging with you, our customers, to provide relevant and responsive information services.

Carlo Iacono
Principal Librarian Collections & Services

Carlo joined the Supreme Court Library in July this year in the newly created senior position of Principal Librarian Collections & Services.  In this role he oversees the core library functional areas of Information Services, Collection Management and Judgments Services.  

Carlo brings with him over 16 years’ experience in information service provision, mostly in the legal sector.  Four years ago he moved to Australia from the UK to manage the Sydney library of global law firm Allens Linklaters. Last year he moved to Brisbane to take on a much broader management role at Griffith University. In previous roles he has worked (indirectly) for the Duke of Westminster at a boutique London law firm and managed the information function for a leading UK legal knowledge provider (Practical Law Company).
 
Most importantly, he has a keen awareness of and involvement in new directions in librarianship and has a strong commitment to providing a high quality, proactive and responsive service for library users. He is also highly experienced in using Australian, UK and global law and business information sources.

We are excited to be working with Carlo to build our range of information services and particularly our training programs, all of which will be of direct benefit to our BAQ members. 

Brendon Copley
Information Services Librarian

Brendon is a familiar face for many of you who have used our Brisbane library in recent years.  He has over 14 years experience in law libraries, including roles at the Supreme Court of Western Australia Law Library and a top-tier Brisbane law firm. 

Since 2008 Brendon has led our Information Services team, ensuring a high level of responsiveness to research requests, as well as managing document delivery and reference services for our customers.

Brendon has developed a high level of expertise in Queensland, federal and international sources of law and has a keen interest in assisting users with historical research, both legal and non-legal.
He also has a strong commitment to user education, especially one-on-one training in the use of databases and search methodologies.

As we strive for continuous improvement across all service areas of the library, we welcome feedback and suggestions from you, our customers.  Your frank comments will help us to further develop and customize our services to meet your existing and emerging information needs.  Please send us an email or, if you are in Brisbane, drop in to see us.

For more information about our Information Services, email reference@sclqld.org.au or telephone us on (07) 3247 4373.
 

Cedric Edward Keid Hampson AO, RFD, QC was born in 1933, the eldest of three children. He attended St Joseph’s College, Gregory Terrace and, thereafter, graduated from the University of Queensland with Bachelor Degrees in Arts and Law.

In recognition of his leadership, academic success and skill on the rugby field, he was awarded the Rhodes Scholarship for Queensland in 1955, subsequently reading for a Bachelor of Civil Law at Magdalen College, Oxford.

Mr Hampson was called to the Bar in 1957 and commenced practice in 1959. He quickly established a prodigious practice and took Silk in 1971. His career spanned almost five decades and, for the lion’s share of that time, he was the unassailable leader of our branch of the profession. He retired from practice in 2006 after 35 years as a Silk.

Throughout his time as a barrister, Mr Hampson was known not only for his dominant presence but, equally, for the consistently high standards of excellence he set in every facet of his practice.

Among his many accomplishments, Mr Hampson was President of the Bar Association for two separate terms separated by over a decade (1978-1981 and 1995-1996), the first Chairman of Barristers Chambers Ltd, the First Chairman of the Management Committee of the Bar Practice Centre, Chairman of the Incorporated Council of Law Reporting and, from 1976 to 1978, the Honorary Air Aide-de-camp to Her Majesty the Queen.

During his terms as President, Mr Hampson introduced a number of innovations to the Queensland Bar. Alongside his major achievement – the construction of the Inns of Court – he also oversaw the designing of the Association’s Crest, the publication of Annual Reports for the first time and the establishment, in 1980, of Bar News.

In a biographical note published in the April 2001 edition of Bar News,¹ Tony Morris QC had this to say:

In addition to his many interest outside the law, Mr Hampson is a published author, having recently published his sixth novel, Occasions of Sin.² He retired from practice in 2006 after 49 years at the Bar and, when Hearsay recently stopped by to catch up, Mr Hampson was relishing the additional time he now has to spend with his wife, prominent Dutch-born sculptor, Catharina, as well as his four children and ten grandchildren.

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What follows is the transcript of a conversation that took place between Mr Hampson QC and Martin Burns SC on 3 September 2010.

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After finishing your schooling at Gregory Terrace, you attended the University of Queensland. How many undergraduates were there in your year?

What was the campus like in those days?

What would you get up to when you were not hard at work studying?

Who were your lecturers?

Magdalen College, University of Oxford

You recently attended a photo shoot at the Federal Court where you and others who attended Magdalen College were assembled. How was it that you came to do the BCL there?

You mention Paddy Donovan. Was he the first to go to Magdalen College from Queensland?

You spoke the other day with great fondness about your time at the College. It was obviously a great influence in your life? 

Going over there must have been a big step for a young man to take?

So you went there by ship?

So I take it that, once you arrived, there could be no thought of returning until after the course was completed?

Who were the tutors when you were there?

Sir Rupert Cross was blind was he not?

Did you play any sport when you were in England?

Did you have any family in the law before you started? 

No, I didn’t, although I lived at Ashgrove down the street from Brian O’Sullivan and Len Draney. Doug McGill was around the corner. So within less than half a mile lived three practising barristers.

When you commenced practice in 1959, the Bar was relatively small?

Where did you go into chambers?

Did you receive good support after you commenced?

Who were the luminaries at the Bar in the early days?

What made Dan Casey so good?

First of all, he was an impressive fellow, really. If you saw him walking along the street, you wouldn’t think much of him. He always wore a three-piece dark suit and a hat, jaw jutting out and probably a cigarette hanging out of his mouth. But he had an austere air about him.

But then when he got into Court, he was quite a different fellow and even Judges wanted to stay on his right side. He just was the centre of power in the Court. He had a very good knowledge of the law. I wouldn’t say he was a great lawyer, but he was extremely good in the presentation of a criminal case, the way he would cross-examine, take objections and all that kind of thing. He was not exactly long-winded – I wouldn’t say that – but he was never short. You got the whole story, every sensible point would be made quite well.

 Who do you recall practising in civil?

What about juniors?

When you started out did you set out with the objective of taking a brief in anything that was offered to you?

Is that something that you continued until your retirement?

And that of course included criminal matters?

Over your career, who were the advocates of note? 

What makes a good advocate?

Does courtesy as an advocate still have a place?

 

You mentioned written submissions. What do you think of the relatively modern trend towards written, as opposed to oral, advocacy?

What then do you think about the trend towards specialisation where some barristers appear to set themselves up as experts in one particular area?

Click here to continue.

Footnotes

1. The full biographical note is reproduced on the Lex Scripta website –     http://www.lexscripta.com/articles/hampson.html.
2. For the full catalogue of Mr Hampson’s publications, go to –     http://www.cedrichampson.com/books.html

“What is your role as a prosecutor? Do you see it as prosecuting the last crime or preventing the next one?” was the question Professor George Kelling asked a gathering of attorneys in Washington DC.  While it was a somewhat rhetorical question, it made me think that far too often we have concentrated on the former and ignored the latter.  

Professor Kelling was speaking at the National Association of Attorneys General Symposium on Crime Reduction.  It was held in conjunction with the National District Attorneys Association.  In my role as a Vice-President of the International Association of Prosecutors, I was invited to join 80 other prosecutors, District Attorneys and Attorneys-General.

The information gathered through the presentations is too voluminous to relay in a paper such as this, however I have assembled what I consider to be the main areas touched upon and where there may be some lessons for us in Australia.

Broken Windows

Professor Kelling is the co-author of The Broken Windows Theory.  He postulates that a broken window is symbolic of a community that is apathetic; a community that doesn’t care about itself or about its citizens. However if the window is fixed almost immediately it shows that the community is engaged and paying attention and has civic pride. The longer the time taken to fix the window is directly proportional to the state of the community.

Professor Kelling said that while law enforcement generally concentrates on the “bigger” crimes it is the smaller “quality of life” crimes that truly concern a community.  Broken Windows Theory was applied in New York City around 1991.  The theory came about due to a study that showed that frequent foot patrols by police led to a decrease in crime.  It appeared that the police were dealing with small matters when they were on foot patrol and “nipped them in the bud” before they became more serious. It was an important and necessary step in order to encourage the people to take public order seriously.
 
The essence of the Theory is that police need to work with the community (including street people). The focus is not on arrest; it is on education and warning individuals. Arrest is used only as a last resort.  This approach requires a great deal of discretion on the part of the police since the primary focus is not on arrests. The police implementing the Theory had to learn to use their discretion widely and wisely. 

For those who had visited New York City in the 1980s and early 1990s, there is no doubt that it was a very dangerous place.  This was what made Crocodile Dundee’s 1986 exclamation of “eight million people all wanting to live together; New York must be the friendliest place in the world” such an amusing observation.  In 1990, there were over 2200 murders in New York.

The attention was initially focused on the subway.  From my own experience in New York in the very early 1990s the subway was somewhere you avoided at all costs.   Robberies were common place, homeless people lived there, panhandlers were in your face begging for money and eye contact with another human being was simply not done. The few times I ventured there, persons jumped turnstiles and exits were vandalised allowing entry without charge.  This ‘window’ was well and truly broken. 

In utilising Broken Windows Theory, the head of the Transit Police, Bill Bratten, began enforcing the laws dealing with minor offences such as fare evasion. Police rode the subway trains and did not ignore any offending behaviour no matter how minor.  But they did it with discretion.  This was not zero tolerance but rather, zero apathy.  Many people who were routinely breaking the law had just “given up”.  But when these people were stopped by police and when the community began to see that everyone who was breaking the law was being stopped by police, it gave the community a sense that the police “cared and took pride in our community”.

It didn’t mean that everyone was automatically prosecuted.  A great majority just needed to be “shocked back to reality” and once spoken to by police would never engage in that behaviour again.  The standards of the community were being lifted.  It was not acceptable to ride the subway without paying.  Therefore, it was not acceptable to aggressively beg for money there, to sleep there or to commit crime there.

In 1993 there were a quarter of a million fine defaulters. It stands to reason that if you’re the type of person who is going off to commit a crime, you’re not the type to stop and pay your train fare. It was found that 90% of fine defaulters were more serious criminals. By cracking down on this minor petty crime, police were starting to catch people who were involved in far more serious crimes as well.  

Police started to build up an information data base and this intelligence was used to track and target criminals.  In the long run, this was able to prevent more serious crimes from occurring. Whilst implementing the Theory strengthens communities, police were also finding out who the real criminals are.

For crime to decrease, community attitudes need to change, just as it did in New York.  To successfully change the community’s attitude it is vital that you make it public what you intend to do, to get the public ‘on side’.  If the public are not ‘on side’, the results will simply not follow. 

Bill Bratten is Police Commissioner of New York once again.  He proudly told us that in 2013 there were 338 murders in New York City (and that this had fallen every year since 1990 when 2200 murders were recorded).  He told us something that I already knew from personal experience and that is that it is safe to walk the streets of New York at any time of day.

Police and the Public

Buoyed by the success of Broken Windows Theory, law enforcement kept the vigilance but lost the discretion aspects. Crime still continued to drop. But the decline in crime does not mean that the community has trust in the police and the courts.

In the aftermath of the WTC tragedy, the police instituted a policy of “Stop, Question and Frisk”.  This was an admirable and necessary policy at the time but ultimately it has been abused by police.  In the three years between 2009 and 2012, 2.4 million people were stopped and frisked. This resulted in 150,000 arrests. 24.7% of those arrests were dismissed before arraignment. Of those that did end up on court, half of them were acquitted. Of those convicted only 1.5% received actual jail time and 0.1% were for a violent crime. The Stop, Question and Frisk policy had become a waste of time as well as alienating a large proportion of the community. 
There is only a very small group in the community that actually offend (about 5-6%), so law enforcement authorities need to use the community to assist as a resource to help confront this group. New studies show that people look for fair treatment at the hands of the police and the Courts. Fair means being listened to. The elements of feeling fairly treated are:-

•    having neutral authorities;

•    feeling respected; and

•    feeling that the motives of the police are sincere and caring. 

It is vital that people have trust in these agencies because when they do they comply with the law, they co-operate and report crime and give information because they accept the police to be arbiters of conflict.

At the time, the police did not address these issues and instead, they were still primarily trying to reduce crime by the stop and frisk policies. By engaging in this behaviour, law enforcement deviated from Broken Window Theory and it was no longer being authentically implemented.  It had a significant effect on the levels of trust in the police, particularly in young men who were being stopped. The police were seen as less legitimate, less respected and there were constant claims of harassment.

The focus is now on re-building public confidence.  Over the years, the police connection to the community had been lost. But the role of the police must be to motivate and reassure the community that the police are trustworthy and are partners in building a strong economic and social community. In short, that they are there to fix the broken window.  Police should not be a menacing presence but a reassuring presence.

Overall, the use of the Stop, Question and Frisk policy proved to be ineffective as a deterrence because despite it being increasingly implemented, there had been no drastic decline in crime. On the other hand there has been a dramatic reduction in crime with the other strategies which are based on community involvement. .

No doubt, the implementation of this policy has prevented some crime but it its continued application has led to community resentment and distrust for the police.  Now that Commissioner Bratten is back in charge, this policy is exercised far more responsibly and slowly the trust for police is returning to the community.
Police have instead adopted a “guardian” model as opposed to a “warrior” model.  Communication is an important factor.  Police must be seen to be open and transparent.  Here in Queensland, the QPS Facebook page is a great example of how technology can assist in this enterprise.  However, the lesson is there; the public need to have faith and trust in police, prosecutors and, ultimately, the courts.  

Incarceration

There is no doubt that there has been a reduction in crime in the US.  At the same time, incarceration rates as a whole have hit almost record levels.  There is still debate as to whether the two statistics are truly related.  In Texas, the Attorney-General has no doubt that the very high rate of incarceration is directly responsible for the drop in crime.  “We’ve taken the bad guys out of the equation” is his declaration.  In a State like Texas there is little doubt that a “tough on crime” strategy does in fact work for violent crimes by keeping those people off the streets for many years. 

These statistics below were compiled in 2012. Without trying to interpret them too much, there are certain observations that are very thought-provoking.

• one in every 17 white men had served jail time
• one in every 6 Hispanic men had served jail time
• one in every 3 black men had served jail time
• in 2010 there were 7 times the number of black men in prison than white men
• The USA has 5% of the world’s population but 20% of the world’s prisoners. 70% of those are in prison for non-violent crime.
• Research shows that once someone has reached the age of 45 years, then they are less likely to re-offend. My comment is that this may mean that services should be focused more on the younger generation.
• 700 000 prisoners are released every year and at any given time there are 7 million prisoners on parole.
• 43 -45% of prisoners are returned to jail within 2 years on technical parole violations,
• 33% of prisoners go on to be success stories and don’t offend again.  My comment is that we need to look at why this is so and what did we, (or they), do to make them succeed.

Most prisoners don’t stay in prison until they die. At some point they will have served their time and must be released.  It is trite to say that a prisoner’s re-integration into the community is dependent upon getting them into employment.  Employment gives a sense of purpose and prevents crime but most prisoners need intensive assistance and training to do this.  The studies have shown a huge difference between recidivism rates of those who are given extra help (16-20% re-offend) compared with the 43-45% who are given no assistance.  Those same studies have shown that the first 3 months after release are imperative to a prisoner’s chances of not reoffending.  We need to consider the economic and social cost (of rehabilitation as against further incarceration) to government and to society as a whole. We need to help those convicted of non-violent crime and drug offences, to create opportunities for them.

The Bureau of Justice Recidivism (BJA) reports that the weakest area of the criminal justice system is the re-entry into society. “Partners in Progress” theory involves giving grants to create housing and uses task forces to get prisoners to do the “Ready for Rent” programme which aims to teach former prisoners the basics of housekeeping.  Another project that is showing promise is the “Project Accountability Certain Enforcement” (PACE) which is built on the idea that, for trivial reoffending such as a first minor drug offence or minor breach of domestic violence, parole is revoked for just 2 days (instead of 28 days). This shows parolees that there are immediate consequences for their offending but those consequences are not so severe so as to crush the progress that has been made (and also to reflect that the new offending was minor.)  This helps to stop the revolving door of prison for many prisoners. Society needs to ask ‘is there a redemption point of an offender?’

For me, though, the most telling statistic was this.  85% of prisoners were men aged 18-49.  Of this group, 70% had never lived with their biological father and a far greater number had unwed mothers.  How such a statistic is interpreted is not really a matter for me. However, instead of looking at prisoner statistics through the lens of different racial groups perhaps there is a far greater societal problem and that is the breakdown of the family and of positive male role models for boys.  Such a problem transcends race, creed and colour.

Other successes with Broken Windows

Three years ago, the Broken Windows theory was taken to Detroit which was very badly dilapidated and derelict.  Detroit had in effect, developed into two cities. It had a central and vibrant centre and then it also had vast tracks of suburbs outside the central area where people lived in resilient communities but where many houses were abandoned and home invasions were out of control.

The police and District Attorney needed to figure out how to stitch that suburban area back to the urban core but they had little financial resources.  After five months of planning they implemented a 12 month trial based upon the Broken Windows theory. 

Firstly, they had a community ‘buy-in” whereby a press conference was held with the promise to discuss issues that were important to the community.

a) The key was to get the residents themselves to have to lead or drive it; there is a need to spread the responsibility. The key is to engage the public and identify the issues that are of concern to them.

b) The community wrote the principles. The people said they’d had enough but they saw that more arrests equalled failure to address the issues themselves. They said that they would respect the police if the police respected them.

c) They then had to recruit the prosecutor to tackle those issues and engage non-profit organisations to provide services.

d) The citizens were committed to partnering with police to identify suspicious behaviour.

e) The police were committed to disseminating the information to the residents within that community by email etc. In other words, to keep the public notified and engaged.

f) The idea was to get the criminals and their families and the police to start talking to each other.

Secondly the police increased patrols and would ‘pop in’ on known or problematic people just to say ‘hello’. They did this over 1200 times and in doing so gathered a lot of information.

Thirdly they did a lot of ‘intervention’ by performing 530 parole check-ups

a) Although only 40 people were taken into custody over these inspections it had the effect of showing their presence had increased.

b) About 12 people were identified as being the main offenders and these people were targeted.

c) The police would turn up on their doorstep and say “we are here on behalf of the community, we know what you’re up to and we’re going to be watching you… and follow closely every home invasion. BUT, here is the help that you need to address the issues. Call this person on this number and go and get an education / counselling”.

d) Detroit officials learned from the best practices of other systems- for example similar trials showed that in Philadelphia, 5% of the people are committing 60% of the crime. Once identified those people can then be targeted.

Within twelve months there was a 26% decrease in home invasions in that area (as opposed to a 7% decrease in the other areas). The success of this trial has led to a change in department policy as to how to tackle crime.
 
In the 3 years to 2013, Detroit has had the lowest number of murders since 1965.  They are also experiencing the lowest overall crime since 1962. But the most overwhelming feature is that less people are being arrested and instead, given warnings and summonses. In return law enforcement and government are gaining more trust and support.

Juvenile Crime

Housing projects cluster a lot of criminal behaviour into the one location.   In New York there are 600,000 residents in 334 housing projects which are comprised of 180,000 apartments.  96% of these residents are African American or Hispanic.

Generally in the city of New York itself, two-thirds of offences are property related and a third are offences against the person. However in the public housing areas, these ratios are flipped, with two-thirds of offences being committed against the person with only a third property related. This is because there are a lot of gangs or crews with entrenched behaviour.

In 2006, in a housing project named Brownsville, there were numerous robberies, especially “child-on-child” robberies. It was the second worst neighbourhood in the city in terms of ‘real time’ crime.  Many youths were caught up in a gang and had to be a member just to survive in the housing project. They were fighting a lifetime of dysfunction and were (and are) just doing what they can to survive.
The study looked at 106 youths under 17years of age who had a prior conviction for robbery and asked ‘where do the majority of them live?’  Then law enforcement officials went to the families of these youth and told them, “this has to stop and we will help you to stop, but if you don’t (the youth) will go to jail.”

The officials then brought in the resources to look at the underlying issues and put the youth in touch with those resources to address skills, education, and mental health and to give them options and alternatives. The police were only able to do this trial with the assistance of non-profit agencies. The youths themselves didn’t even realise the seriousness or ramifications of what they were doing.

The trial was broken down into 5 parts.

a) Firstly the police did home visits. Even if initially rejected the police would return up to five times. During these visits they met the adults and showed them all the “intel” that they had on the children

b) Secondly if the police saw the youth on the street they would say hello and let it be known that the police were onto them

c) Thirdly, the police would offer support and services to the family and build a rapport with the younger children and the adults.  They worked closely with the families and sometimes this would even extend to financial assistance of buying nappies or food, and even 500 turkeys for families at Thanksgiving to thank them for allowing the police into their lives and being part of the family.  It showed that they really cared and many even broke down in tears at this gesture. The assistance would even extend to, for example, taking the grandmother to the doctor. The police were seen as a team as caring human beings who wanted to help and this was the breakthrough in the relationship.

d) Fourthly, they began liaising with the schools and would be notified by the school; if the child had not turned up for class the police would go to all their known hangouts and track them down.  By then the families were ‘on side’.

e) Fifthly, police used ‘real time crime’ whereby an alert would be put out if a crime had occurred. The same officers with whom the rapport had been developed were waiting at the police station when the youth was brought in. It was important for these juveniles to see consequences but it was also important that they see there is hope.

By the end of the trial police were able to secure 160 jobs for various juveniles (and associates) who had been convicted of robbery.

Officials tried the same experiment in Harlem and focused on pockets of areas.  They identified 658 youths who were responsible for 763 robberies.  They applied the same techniques and statistics show that in 2007, robberies by juveniles was 25% of crime, in 2008 it dropped to 11%, in 2009 to 3% and in 2010 to .1%. The success of these trials requires dealing with the underlying issues.

There is a widely held belief is that a turning point in juvenile development is exposure to military training. Exposing young offenders to military training shows them that if given different opportunities they could make different choices and lead different lives. But we in authority must also listen to their stories and ask them how they came to be making the choices that they are making.

In summary reducing crimes amongst juveniles requires:-

a)    establishing a relationship between police and the families

b)    showing them and providing them with alternative options

c)    acting swiftly when they get into trouble

d)    promoting change  

RICO (The Racketeer Influenced and Corrupt Organizations Act “RICO Act”)

With improvements in technology we now have the time and luxury to deal with other crimes but we need to get ahead of them.  When you take on the job of addressing and solving the problems then you become responsible for the success or failure of that enterprise.  It’s a big responsibility and not many people want to take it on.  But we need to adopt the approach of owning the problem and wanting to do something about it.

This how the RICO legislation came about.  The Racketeer Influenced and Corrupt Organizations Act (“RICO Act”) is a statute which deals with organised crime and gang prosecution.  Forfeiture is a major feature of the Act as well as providing a great weapon in the fight against organised crime.

In the investigation phase, police need to look beyond the individual crime and see if there is a pattern of crime; is it organised? Then they need to prove that there is an organisation that exists. It applies to every organisation and it now also applies to gangs.  RICO allows law enforcement to go after systematic crime.

It’s not enough to take the bad apples out of the barrel because the others will already be infected in some way.  There is a need to ‘take out’ the entire organisation.  One benefit of the legislation is the ability to join others to the organisation and make them also accountable for the acts of that organisation — the underlying theory is to incapacitate them.  However, if you don’t take the money out of the equation then you haven’t finished the job.  Law enforcement needs to catch the money and profits even if it were moved offshore of put into what might seem legitimate investments.

The ability to bring down gangs (with tools such as RICO and telephone intercepts) only depends on two things:

• The will or determination to do so
• The resources

RICO has proven to be successful though it may be early to just see the full nature of that success.  RICO was controversial and not fully embraced when it was first enacted.  However, the sky didn’t fall in and the dire predictions of “the end of civilisation as we know it” have failed to materialise. 

Summary

The reasons for a drop in crime are many.  There is certainly an approach that punishment will be meted out if you offend.  While there may be some merit in such an approach, it will not work unless there is a change in attitude in those who would commit crime.  That is where Broken Windows Theory is truly successful as it changes attitudes.  Discretion is a key ingredient.

There are always going to be crimes for which condign punishment cannot be substituted.  Sexual crime by adults against children is one such crime where there can only be zero tolerance.  Most violent crime will also fit this bill.  Incarceration is also the greatest deterrent for white collar crime.  But these crimes do not account for many of the offences to come before the Courts. For the majority of crime the success in reducing the incidence is less about enacting tougher laws and more about changing attitudes and smarter implementation. As these US results show, it can be done if there is a will and there are resources.

The fundamental duty of a government is the safety of its citizens.  It requires all three branches of government to work for the collective benefit.  The Legislature must provide laws that will enable results to be achieved.  The Executive must comply and use those laws properly and with appropriate discretion.  Where problems are identified by one part of the Executive, resources need to be allocated to help solve the problem.  And the judiciary must enforce those laws and be mindful of the trust the community places upon them in this regard.

Whilst the roles of Crown Prosecutors and police in Australia is somewhat different to our US counterparts, there is scope to be proactive rather than simply reacting to whatever is in front of us.  Reducing crime is the responsibility of all of us but instead of looking at this issue only from our “turf”, all facets of the community have to look at this issue holistically.

In effect, we are all part of the solution.

Sal Vasta

Introduction

This short comment is directed to identifying some key issues common to the various Intellectual Property (IP) regimes. In broad terms these are:

• The nature of the IP;
• Title to the IP;
• Infringement;
• Defences, and
• Damages.

Growth of interest in IP

IP laws have gained some interest in recent years. Interest has been in part attributable to products, services or entities, with which members of the public recognise an association.

Some cases which have brought the public’s attention to IP issues are:

• The copyright case involving Men at Work’s iconic song Down Under, and its use of another iconic round, the Kookaburra song;
• The Apple v Samsung litigation regarding the introduction into Australia of the Galaxy tablet computer known as the “Galaxy Tab 10.1”;  
• The challenge to the validity of the Tobacco plain packaging legislation, and
• The liability of internet service providers in respect of sites using their server which offered infringing products.

In the small to medium enterprise (SME) environment particularly, the ease with which commercially sensitive information (which are often copyright works) may be emailed, transported by a memory stick or posted to a cloud network, presents a very real threat to the survival of many businesses.

Nature of IP

Initial consideration should be given to the type of IP, if any, in issue.

Some areas may appear clear enough, such as the subject of granted letters patent or the infringement of a registered trade mark. However, the four main IP areas (patents, trade marks, copyright and designs) have degrees of overlap, and for that reason a mental scanning of the IP involved is essential.

For example:

• A shape (trade) mark for a sports shoe may overlap conceptually with a registered design for the shoe.
• A composite mark of image and word/s may constitute at the same time an artistic work within the meaning of the Copyright Act 1968 (Cth) s 10.
• A T-shirt may have a design which is deceptively similar to your solicitor’s client, but it is being used as a design, not ‘as a trade mark’ or badge of origin: s 120 of the Trade Marks Act. However, the same design may be a copyright infringement.  
• A database of clients may be copyright as a compilation but also give rise to contractual or equitable obligations of confidence.

Drawings accompanying a patent application are copyright, however any reproduction or communication of a literary or artistic work in a prescribed document open for public inspection has a defence under the Patents Act.

Title to the IP

The starting point is generally that the IP rights are given to the creative, that is, the author, the inventor, the designer or registrant of a trade mark.

Having said that, the question must be asked whether the matter which attracts IP rights were created by one person or as a result of a collaboration. Assuming, the simplest situation of a single creative, these ‘prima facie’ positions are then considered in context and subject to three variables which may alter the initial assessment:

• The prima facie position is subject to any agreement to the contrary between the author for example and another party or parties;
• There are in the copyright and designs regimes, identified relationships which may transfer the title.
• In some cases, such as the commissioning of photographs for private or domestic purposes and the painting or drawing of a portrait, the copyright will, in the absence of contrary agreement, move from the person who took the photo or painted the portrait, to the person who commissioned the work/s.

For example, an employee architect completing drawings pursuant to the terms of his or her employment by the architect firm will be the author and owner. However, unless there is an agreement to the contrary, the Copyright Act will intervene to identify the employer as the owner of the copyright in the drawings or plans.

The designs and patent legislation have a similar tiered approach, although an identifiable difference is that, unlike the design legislation, the copyright legislation does not extend that ownership to a matter created by a contractor.

Hence, the client who had a software program written in order to produce a spreadsheet of schedules for his coach transport business could not complain when the author of the work, the programmer, wrote a similar program for his competitor. Generally, payment for those services means the client has a licence (arguably non-exclusive) to use the copyright work for the purpose it was created, but not ownership.

Assignees of the rights are accommodated as are legal personal representatives in the statutory provisions.

Infringement

IP rights have been described as negative rights. French CJ in the Tobacco Packaging case noted that in Pacific Film Laboratories Pty Ltd v Federal Commissioner of Taxation, Windeyer J spoke of the essential nature of a copyright:

“It is not a right in an existing physical thing. It is a negative right, as it has been called, a power to prevent the making of a physical thing by copying.”

The IP statutes preserve the exclusive right rather than grant a right to:

• Exploit the invention and to authorise another person to exploit;
• Use the trade mark and authorise others to use it;
• Do all or any of the acts set out in the provision including reproducing, communicating and publishing;

They have been referred to as negative rights because, for example, the inventor does not need the Patents Act to be able to make, sell or hire the invention as that is a right the inventor has in any event. Similarly, an artist is not prevented from publishing the artistic work and does not acquire such a right by the legislation. It is the exclusivity which the legislations preserve for the term.

Infringement therefore is the unauthorised doing of an act reserved for the owner or their authorised person/s. Following this general statement, each regime has its own idiosyncrasies and tests. In this regard, the starting points are:

• For trade marks, s 120 of the Trade Marks Act;
• For copyright, s 36 of the Copyright Act;
• For designs, s 71 of the Designs Act.

Infringement is not defined in the Patents Act, however the common law identifies this to mean the doing of all of the essential features of any claim in the patent.

Limitations are generally 6 years from the day the infringement occurred. However, the relevant provisions for the rights involved must be considered carefully, as there are variations as to the commencement of the period.

Defences/Cross-claims

In broad terms the response is usually one of three approaches:

• No, I am not doing what has been specifically reserved as your statutory monopoly;
• Yes, I am doing what has been specifically reserved as your statutory monopoly, but I don’t think you are entitled to such a monopoly;
• I don’t think I am doing what you have had exclusively reserved by the rights, but even if it is found that I am, I don’t think you are entitled to such a monopoly;

The majority of IP cases do not simply defend the claim as in the first scenario. Rather they challenge by cross-claim the IP rights seeking revocation of the rights. For example in:

• Copyright, it may be argued the work is not an original work within the meaning of s 32 of the Copyright Act;
• patents, the patent may lack novelty under s 18 of the Patents Act, where there has been a published disclosure of the invention before the filing date of the patent application;
• trade marks, that the respondent may claim it has a prior registered mark substantially identical with, or deceptively similar to the applicant’s mark;

• designs, the respondent may claim that the design is not new and distinctive when compared with the relevant prior designs published before the filing date.

There is an allowance not by way of defence but in terms of relief in the case of innocent infringement. Although there are some specific defences, the general rule is that you identify the rights reserved for the owner and identify if the respondent is doing what was reserved only for the owner.

The Federal Court Rules are very particular that the grounds upon which invalidity of the IP rights are claimed be articulated clearly in a document or as part of the pleading at an early stage of the proceeding.

Damages

Compensatory loss is often problematic in IP cases. The approaches are usually a licence fee approach where an amount which might have been charged to authorise the use is appropriate or loss based on lost sales. In the alternative, there is usually an election for an account of profits.

It should not be problematic where the sale by the respondent might reasonably be considered to be a lost sale to the applicant/plaintiff. For example, the IP owner conducts an eBay store selling cycle parts and uses photographs and detailed descriptions corresponding to those parts in the advertisement offering the products for sale. The respondent allegedly copies the photographs and descriptions on its own eBay online store. As these parties are the only two offering such products with the same photographs and almost identical descriptions, it is indeed arguable that a sale by the respondent/defendant equates to a lost sale by the applicant/plaintiff if infringement is found.

In a design infringement case involving a registered design for a ladies dress, Jessup J was not prepared to find sales to the respondent equated to a lost sale to the applicant.

Regardless however of an assessment of compensatory loss, the patent, copyright, design and trade mark regimes permit an award of additional damages in the nature of punitive damages in certain circumstances. The patent, trade mark and copyright provisions identify an inclusive set of considerations (including flagrancy) relevant to such an assessment. The designs legislation however identifies the flagrancy of the infringement as a matter for consideration in the assessment as well as ‘all other relevant matters’.

An award under these sections is of course discretionary, and its award is not calculated as a proportion of the compensatory damages awarded.

Conclusion

The above is a short overview of the considerations which will arise in cases where IP rights are sought to be enforced. The varied circumstances will usually involve an application of these fundamentals to the circumstances of the case.

The exercise does involve a consideration of infringement. However, as stated, the infringement case falls away if there is a successful challenge to the validity of the rights. It is therefore essential to be aware of the linchpins which may undermine the infringement action.

Dimitrios Eliades
Barrister at Law

Excerpt from the diary of Arthur Feez KC

October 26 Monday 1903

Regular day off. At 11 the High Court met for the first time in Queensland. Unfortunately, [Cowan?] owing to his [—] being moribund had to leave yesterday evening and the court was confined to Griffith and Barton. Blair made a rather stilted address and Rutledge, to our astonishment, followed him. Fan and Ida were there. About 12, I had consultation in a [—ing] case with McGregor and Morris. Club to lunch and at 2 we (the Bar and solicitors) entertained the Judges (Griffith, Barton, Cooper and Real) on the Lucinda. Very pleasant afternoon getting back about 5.40. Home in the 6.5 and read a little but was very tired and turned in early.

Special meeting of Synod for election of Bishop on Wednesday. Informal meeting of Laity Tuesday 7pm.

October 27 Tuesday 1903

Full Court. Pope Cooper sworn in as CJ. Blair congratulated him and then Real made a long rambling speech as to the reason for his [—] in not getting the position. It was very bad luck but luckily he did not make a scene. The rest of the day we were arguing the right of appeal to PC in Colonial Sugar Co v [D—ing]. I was at it most of the day and Woolcock was still arguing when we adjourned. Stayed in town and had tea at the Johnsonian as we had a meeting of the Laity at Protestant Hall at 8. Nothing definite settled though the Laity seem in favour of [Green].

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