Prospects for Law Graduates – is it as hard as graduates are saying to land a legal job?

If you are a law student or law graduate you would no doubt have heard about the difficulties of landing a graduate job. It is anecdotally acknowledged that this is the hardest time since the recession in the early 1990s for law graduates. Lawyers Weekly have reported on the difficult legal recruitment market in numerous articles. In recent years, even the mainstream media have commented on the difficulties law students face in finding employment in the law after they graduate. But is this speculation actually true?

In July 2014 the Law Society of New South Wales established a working group to investigate and report on the employment prospects for law graduates. The resulting report titled “Future Prospects of Law Graduates: Report and Recommendations” was released this week and can be found at https://www.lawsociety.com.au/community/forlawstudents/LawGraduatesReport/index.htm  

The most shocking thing about the report is that the data analysed appears to show that NSW law graduates are not exceeding new entrants into the legal profession, suggesting there is not an oversupply of law graduates.

Data used to determine if there is a law graduate oversupply

The working group established a model to track the movement of NSW law students through the system. The model assumes that the Class of 2013 were admitted in 2014 and commenced practicing as lawyers in 2015. If we take the Class of 2013, the model shows there were 2,555 law graduates that year. 2,267 went on to be admitted. 2,970 new practising certificates were issued to lawyers who were admitted within the last 12 months. From this data it appears there were sufficient opportunities for law graduates to obtain employment as a lawyer and that graduates are not exceeding demand.

It is interesting to note the reduced number of law graduates from NSW universities in 2012. The number dropped from 2,245 in 2011 to 1,945 in 2012. I was at university at the time and knew several people who delayed their graduation because of the perceived terrible graduate job market. If enough students delayed their graduation by under loading subjects, this would explain the increase in graduates in 2013 and the perceived oversupply of graduates in 2014 and 2015. However, the data used by the working group shows that even for the 2103 cohort, there were sufficient legal opportunities. 

(Table taken from page 10 of the report)

It is acknowledged in the report there are several issues with this model. I also add my own observations:

·   1. Not everyone follows the pattern of graduating one year, being admitted the next and starting practice the year after. A substantial amount of graduates would be admitted and obtain a practising certificate the year after graduation. A substantial number of graduates may go through the process at a slower rate.

·    2. It is assumed that a graduate would not obtain a practising certificate unless they were working as a lawyer due to the expense of obtaining the practising certificate. It is assumed new practising certificates issued equates to graduates converted to employed lawyers.

·   3. The figures show practising certificates issued to solicitors admitted for one year or less. Not all practising certificate holders will have recently graduated.

·    4. Quite a few graduates from interstate come to NSW to work and this practising certificate figure could include non-NSW graduates. The admission figures could also include non-NSW students who study College of Law in NSW with an eye to being admitted and being employed in NSW.

Common complaint: JD students have flooded the market

A common complaint among undergraduate law students is that the introduction of JD courses in NSW has “flooded” the current legal market and that JD students have “stolen” jobs traditionally taken by undergraduates. The working group’s data also debunks this myth, as JD students were included in the above table and the data suggests there were sufficient legal jobs for all graduates from NSW law schools. The table below shows all the accredited law degrees in NSW.

(table taken from page 12 of the Report)

The proliferation of JD courses in the past 10 years is apparent. However, the number of students the JD courses have added to the total number of law graduates is less than 350. This is less than the increase in the number of law undergraduates the past few years. The report includes a useful table showing the increase in student numbers. The worst culprits for the increase in student numbers appears to be the University of Sydney and University of Western Sydney undergraduate courses.

(table taken from page 13 of the Report)

Then why is there anxiety about graduate prospects?

I am not 100% convinced by the data used by the working group. The difficulties of law graduates finding employment seems real. However, if there are sufficient graduate law jobs than what has caused all the anxiety?

The working group found that there was significant anxiety amongst the legal profession about the lack of employment opportunities for law graduates. The level of anxiety among law students themselves was found to be very high. Even if employment prospects are high, obtaining a graduate job can be stressful, so it is difficult to tell if the level of stress among law students has increased in the last few years due to increasing difficulty of obtaining a graduate job or if law students have always found it stressful obtaining a graduate job. Again, more data is needed.

Conclusion

One of the working group’s key recommendations is that more accurate data is obtained to track law students’ graduate destinations both within and outside the legal profession. The last time an in-depth study on the employment of law graduates was done was in 1989 when the Centre for Legal Education published a detailed study on graduate career destinations. The working group also recommended that a national approach be taken, especially given increasing concerns about excessive law student numbers in Victoria and Queensland.

My favourite recommendation is that it is important law students are provided with accurate information about the state of the legal market. Anecdotal evidence and uncertainty does not help law student anxiety. Solid evidence and an in-depth study will not only aid in the transparency of universities taking on more law students but assist in reducing stress associated with obtaining graduate employment. If it the data from the working group’s report is proven correct and there is not an oversupply of law graduates, this will help reduce the stress law students feel about their future.

How to witness an affidavit - a guide for junior lawyers

Recently admitted? You now have the power to witness an affidavit. This is a step-by-step guide for baby lawyers in NSW which integrates practical steps with the relevant sections of the Oaths Act 1900 (NSW). This guide only applies to witnessing affidavits in NSW. The laws are different in every state.

Who can witness an affidavit?

Sections 26 and 27 of the Oaths Act 1900 (NSW) lists those who are authorised to witness affidavits:

1.       If in NSW a Justice of the Peace or an Australian legal practitioner;

2.     If in another state of Australia, anyone authorised to witness an affidavit under the laws of that state. This will include a Justice of the Peace and legal practitioners; and

3.       If outside Australia a notary public having authority to administer oaths in that country or a British or Australian Consular Officer.

Steps to take before signing

Step 1: Check the identity of the deponent

The witness must check the identity of the person making the affidavit. Significant steps were added to the identity checking process in 2012 and are contained in s34 of the Oaths Act 1900 (NSW) and the Oath Regulation 2011 (NSW):

1.       The witness must see the face of the person making the affidavit, and can request the person to remove as much of the face covering as necessary to see the person’s face. The face is “from the top of the forehead to the bottom of the chin, and between (but not including) the ears". The only exemption from this requirement is if the witness is satisfied the person has a special justification for not removing the covering such as a legitimate medical reason.

2.       The witness must be satisfied of the person’s identity. Identification will be satisfied where:

a.       The witness has known the person for at least 12 months; or

b.      The witness has cited an original or certified copy of one of the following identification documents:

·         A current State or Territory drivers licence

·         A Commonwealth passport which is currently valid or which has been expired for less than 2 years

·         A current passport issued by a foreign government recognised by the UN

·         A current Centrelink notice noting name and address of individual

·         A current ATO notice noting name and address of individual

·         Medicare card, Pension Concession card, or any other entitlement card issued by the State or Commonwealth that is currently valid

·         Credit card or account statement from a bank that is less than 1 year old

·         Evidence of enrolment as an elector such as an electoral enrolment card less than 2 years old

·         A student ID card from an educational institution less than 2 years old

Note: If you have not undertaken all these steps in person before the deponent executes the affidavit you cannot witness the affidavit. At some point in your career you may be put under pressure to witness an affidavit that was signed by the client when you were not present in the room. It would be a breach of the Oaths Act 1900 (NSW) and professional misconduct to state you witnessed an affidavit in these circumstances. Do not do it.

Step 2: Check the affidavit is in the correct format

Check the correct form has been used for the type of affidavit and court. Check all the pages are there, and that there have been no alterations or omissions. If for some reason there is a blank space at the end of the deponent’s statement, rule a Z shape across this space so text cannot be added after the affidavit has been signed and witnessed.

Step 3: Check annexures

Check that all annexures are referred to in the body of the Affidavit and that each annexure is clearly marked. Check that the front page of each annexure contains the correct statement. Ie for a one page annexure:

“This is the annexure marked [insert ‘A’, ‘B’, ‘C’ as relevant] referred to in the affidavit of [insert name of deponent], declared before me this [insert date] day of [insert month, year].

[witness to sign, witnesses full name, capacity of witness]”

For an annexure of more than one page:

“This and the following [insert number of pages] pages is the annexure marked [insert ‘A’, ‘B’, ‘C’ as relevant] referred to in the affidavit of [insert name of deponent], declared before me this [insert date] day of [insert month, year].

[witness to sign, witnesses full name, capacity of witness]”

Step 4: Check the deponent understands

The deponent must understand the nature and purpose of the affidavit before they take the oath/affirmation. You must also be satisfied the deponent understands the nature of the affidavit. If you do not think the person can understand the nature of the affidavit see s32 of the Oaths Act 1900 (NSW).

Step 5: Warn the deponent

Section 29 of the Oaths Act 1900 (NSW) makes it an offence to wilfully swear a false affidavit. Falsely swearing an affidavit is considered perjury. You must warn the deponent that it is an offence that can lead to imprisonment to swear or affirm a false affidavit and that in making the oath or affirmation they are affirming the contents are true and correct.

The oath/affirmation

Step 6: Deponent selects oath or affirmation

Ask the deponent to choose an oath or an affirmation. In both, the deponent is promising they are telling the truth. The difference is that an oath refers to the God recognised by that person’s religion, whereas the affirmation does not have the religious element. You should remember this from your Admission Ceremony. Instruct the deponent in advance how they are to respond when giving the oath.

If the deponent selects oath:

The deponent may have a copy of their holy book to hold when taking the oath. However, it is not necessary for a holy book to be used in taking the oath. The formal part of the oath then proceeds:

You: “Do you swear that the contents of this affidavit are true and correct to the best of your knowledge and belief?”

Deponent: “I swear that the affidavit is true, so help me God”

The manner and form of taking oaths is set out in detail in Part 2, section 3 to 11A of the Oaths Act 1900 (NSW).

If the deponent selects affirmation:

You: “Do you solemnly and sincerely declare and affirm that the contents of this your affidavit are true and correct to the best of your knowledge and belief?”

Deponent: “I do”

The manner and form of making an affirmation is set out in Part 3, sections 12 to 13 of the Oaths Act 1900 (NSW).

Signing of the jurat, the affidavit and annexures

The jurat is the section at the end of the affidavit which is completed after the oath/affirmation has been taken.

Part of the jurat can be found in Schedule 1 of the Oaths Regulation 2011 (NSW):

Certificate under section 34 (1) (c) of Oaths Act 1900

* Please cross out any text that does not apply

I [insert name of authorised witness], a [insert qualification to be authorised witness], certify the following matters concerning the making of this *statutory declaration/affidavit by the person who made it:

1 *I saw the face of the person or *I did not see the face of the person because the person was wearing a face covering, but I am satisfied that the person had a special justification for not removing the covering.

2 *I have known the person for at least 12 months or *I have confirmed the person’s identity using an identification document and the document I relied on was [describe identification document relied on].

[insert signature of authorised witness]

Date

Step 7: Deponent signs the jurat

Watch as the deponent signs the appropriate part of the jurat.

The signature block will look something like this:

SWORN/AFFIRMED (delete whichever is inapplicable) at (insert name of place):

-----------------------------------                                      -----------------------------------------------

Before me: (witness signs here)                                               (deponent signs here)

                     (solicitor)

Whatever the signature block looks like, the jurat from Schedule 1 of the regulations will be below for the witness to fill out

Step 8: Witness and deponent sign each page of the affidavit

The deponent and witness both sign every page of the affidavit in the bottom right hand corner. The statements on the front of each annexure should be completed and signed by the deponent and witness as this stage.

Step 9: Witness completes jurat

This is the final step, and you should not sign the jurat until all of the above steps are taken. Rule out the options that do not apply before signing.

Additional items to watch out for

The procedure above applies in most simple circumstances. There are a number of other matters you should be aware of:

1.       Person’s unable to make an oath

Section 32 of the Oaths Act 1900 (NSW) provides a procedure for a person to make a declaration instead of an oath where because of the person’s age, capacity to hear, understand or communicate, they are not competent to take an oath. If you are a junior lawyer and you encounter someone you do not believe is capable of making an oath, always seek help from a more experienced lawyer before proceeding with witnessing the affidavit.

2.       Person’s unable to read English

Section 27A of the Oaths Act 1900 (NSW) provides a procedure for swearing affidavits where the deponent is blind, illiterate or otherwise unable to read written English. The affidavit must be read to the person and a note must be made below the jurat that the affidavit was read, the deponent appeared to understand the affidavit and the deponent signed or marked the affidavit in the presence of the witness.

33 YEARS ON: CODELFA CONSTRUCTION PTY LTD V STATE RAIL AUTHORITY OF NSW [1982] HCA 24 – Does the Codelfa Principle still apply to using extrinsic material in interpretation?

Introduction

All law students who passed the subject Contracts will have grappled with the case Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA 24 (“Codelfa”) when learning the principles of frustration. Lawyers who have practiced will know that Codelfa continues to haunt you in the area of interpretation of contracts. Constructing a contract can involve examining extrinsic material to assist with finding the legal meaning of the words. Codelfa provided a test for when it is appropriate to use extrinsic material as an aide. Two competing interpretations of the test in Codelfa emerged and were adopted in different High Court cases, culminating in 2014 with the case of Electricity Generation Corporation (trading as Verve Energy) v Woodside Energy Ltd [2014] HCA 7.  In this article I attempt to summarise where the law is today. Note that this article focuses on when extrinsic material can be used. It does not cover what type of extrinsic material can be used. However, I may cover this in a future blog post.

Short answer:

Yes, the Codelfa Principle still applies, but has been reinterpreted over time, culminating in the 2014 High Court case of Woodside. Codelfa is now interpreted as supporting the contextual approach to use of extrinsic material in constructing contracts.

Key case: Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA 24

The NSW government contracted with Codelfa Constructions to excavate tunnels for the new Eastern Suburbs train line. When the contract was signed, Codelfa Constructions intended to work 24/7 to achieve timeline targets and receive bonus payments. Both parties assumed that the work would not be subject to injunctions. However, the work created noise and vibrations and local residents successfully obtaining injunctions. Codelfa could only work six days a week and for only two shifts a day.

Codelfa tried to claim compensation from the government for lost profits associated with not being able to work 24/7 and meet time targets in the contract. There was no explicit term in the contract, so Codelfa argued either that there was an implied term or in the alternative that the contract was frustrated. The interpretation put forward by Codelfa hinged on whether or not certain extrinsic material could be used in constructing the contract.

The Codelfa Principle:

The traditional reading of the Codelfa Principle is that extrinsic material evidencing surrounding circumstances can only be used in interpreting a contract where the contract is ambiguous on its face. Where the contract is not ambiguous, the investigation ends with the text of the contract. This is known as the literal approach.

The Codelfa Principle is taken from Mason J’s judgment ((1982) 149 CLR 337 at 352):

 “The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.”

So where is the controversy?

Two possible readings of the Codelfa Principle have been put forward. They differ as to the point in time in the contract interpretation process that extrinsic material can be considered. In Ray Brooks Pty Ltd v NSW Grains Board [2002] NSWSC 1049 Palmer J distinguished the two approaches with the terms “literal approach” and “contextual approach”:

1.      Literal approach: Ambiguity must be identified before extrinsic material can even be looked at. If there is no ambiguity in the clause in question, extrinsic material must not be examined. To me this seems the obvious intention of Mason J in the above extract and was favoured in the years immediately after Codelfa.

2.      Contextual approach: Extrinsic material can be used at any point in the interpretation process including to determine if ambiguity exists.

The interpretation outcome for a contract between the literal and contextual approaches can be huge.

Cases supporting the “contextual approach”

1.      Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 185 ALR 152 (“Maggbury”)

In this High Court case, Gleeson CJ, Gummow and Hayne in their joint judgment adopted the contextual approach that the meaning of the words would be that as understood by a reasonable person with all the background knowledge (at 155). This is not the traditional approach of first looking at the text alone. The joint judgment relies on the UK case of Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] UKHL 28 (“West Bromwich”) in which the contextual approach was favoured. Lord Hoffman stated that `the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract’. It was also suggested by Lord Herschell that contractual language must be “interpreted in the way in which business men would interpret them”. This approach is also known as the “business efficacy” approach. However, as already mentioned, the UK had made a clear departure from requiring ambiguity to examine extrinsic evidence.

2.      Ray Brooks Pty Ltd v NSW Grains Board [2002] NSWSC 1049

Palmer J analysed Mason J’s approach in Codelfa and concluded Mason J was sympathetic to the “contextual approach”. At [59]:

`His Honour is not saying: evidence of surrounding circumstances is admissible only if it first appears that the language of the contract is ambiguous. His Honour is saying: evidence of surrounding circumstances is admissible only for the purpose of explaining ambiguous language in the contract and not for the purpose of changing the meaning of clear words.’

Palmer J believed Mason J in Codelfa was sympathetic to the view that the contracts cannot be isolated from the matrix of facts in which they were set.

3.      Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407 (“Franklins”)

Allsop P states at [18]:

“The construction and interpretation of written contracts is to be undertaken by an examination of the text of the document in the context of the surrounding circumstances known to the parties, including the purpose and object of the transaction and by assessing how a reasonable person would have understood the language in that context. There is no place in that structure, so expressed, for a requirement to discern textual, or any other, ambiguity in the words of the document before any resort can be made to such evidence of surrounding circumstances”.

Franklins clearly states there is no need for ambiguity and that the High Court cases are clear on this. Allsop P relies on Maggbury and the following High Court cases in making this statement:

Pacific Carriers v BNP Paribas (2005) 222 CLR 241 at 461-462 [22];

 Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530 at 559[82]; 

International Air Transport Association v Ansett Australia Holdings Limited (2008) 234 CLR 151 at 160 and 174.

4.      Electricity Generation Corporation (trading as Verve Energy) v Woodside Energy Ltd [2014] HCA 7 (“Woodside”)

Prior to this case, there was serious doubt as to whether to apply the contextual or literal approach to contract construction. In 2011, in Jireh, the High Court had indicated ambiguity needed to be identified before extrinsic evidence was examined. In 2014, in Woodside, the High Court found the opposite. In Woodside, the High Court clearly favoured the contextual approach (at [35]):

“The meaning of the terms of a commercial contract is to be determined by what a reasonable business person would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract”.

There is no mention at all of first requiring ambiguity. Instead the focus is on construing the contract so as to avoid it ‘making commercial nonsense or working commercial inconvenience’ (at [35]).

Cases supporting the “literal approach”

1.      LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2003] NSWCA 74

Young CJ, Meagher JA and Hodgson JA in the New South Wales Court of Appeal stated that it was necessary for ambiguity to be shown before the surrounding circumstances are examined. They compared the Australia path with the English path where the prerequisite of ambiguity had been clearly discarded. As an aside, the Court of Appeal did consider the use surrounding circumstances could be put to and suggested the Codelfa doctrine is not only that a court uses the surrounding circumstances to aid its interpretation and to put itself in the armchair of the parties to look to see what each knew when it was making the contract, but also that inferences can be drawn from the surrounding circumstances virtually to add terms’. While this looks to be a broad approach to the use of surrounding circumstances, this step can only be taken if ambiguity has been identified.

2.      Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45 (“Jireh”)

The High Court case of Jireh is very important, as it cast away doubt that had built up surrounding Codelfa and reaffirmed that ambiguity is needed before surrounding circumstances can be examined. The High Court refused special leave to appeal, and in providing its reasons stated that the “true rule” as stated by Mason J with the concurrence of Stephen J and Wilson J in Codelfa remained the law in Australia. The High Court then gave a mini-lecture to the lower courts:

“Until this Court embarks upon that exercise and disapproves or revises what was said in Codelfa, intermediate appellate courts are bound to follow that precedent. The same is true of primary judges, notwithstanding what may appear to have been said by intermediate appellate courts. The position of Codelfa, as a binding authority, was made clear in the joint reasons of five Justices in Royal Botanic Gardens and Domain Trust v South Sydney City Council and it should not have been necessary to reiterate the point here.”

It is important to note that Jireh was decided in 2011. The High Court case of Woodside is more recent.

3.      See also: Royal Botanic Gardens and Domain Trust v South Sydney City Council  (2002) 240 CLR 45. This case is particularly important for the breadth of extrinsic material and surrounding circumstances that can be used.

Can Jireh and Woodside be reconciled?

Jireh and Woodside take the opposite approaches to the interpretation problem. To me there seems to be irreconcilable inconsistency between the two cases. Jireh requires ambiguity before extrinsic evidence can be looked at. Woodside requires extrinsic evidence and surrounding circumstances to be taken into account at first instance to reach a commercially workable interpretation. Woodside was decided in 2014, so has the upper hand in terms of recent High Court precedents. Some lower courts have tried to reconcile the two judgments:

1.      Stratton Finance Pty Limited v Webb [2014] FCAFC 110

The Federal Court acknowledged there had been uncertainty since Jireh, but that this was resolved by Woodside:

“As the reasons in Franklins stated, the conclusion that ambiguity need not be discovered before any resort to legitimate surrounding circumstances in the relevant task was drawn only from existing High Court authority.” (See Franklins above for list of High Court cases relied on).

2.      Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184

The NSW Court of Appeal has also expressed the view that Jireh and Woodside are inconsistent. In their reasons, the Court of Appeal stated how the contextual approach in Woodside is not inconsistent with Codelfa (at [79]):

“There is no inconsistency [between Codelfa and Woodside] because whether contractual language has a "plain meaning" is (a) a conclusion and (b) a conclusion which cannot be reached until one has had regard to the context. That accords with what was said by Allsop P in Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [17]:

"the phrase used by Mason J in Codelfa Construction (at 352) 'if the language is ambiguous or susceptible of more than one meaning' does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances ... "

Mason J was indicating that there are very real limits to the extent to which grammatical meaning can be displaced by contextual considerations. However, in order to determine whether more than one meaning is available, it may be necessary first to turn to the context”.

Conclusion

Thirty three years on, Codelfa still stands as authority on the use of extrinsic material in interpretation. However, it has been “reinterpreted” over time to the point that the contextual approach in the 2014 High Court case of Woodside now applies. This requires extrinsic material and the surrounding circumstances to be examined at the outset in constructing a contract. Ambiguity is still required to be identified, but the extrinsic material and surrounding circumstances must be examined to see if this ambiguity exists..

Note: In this article I use the words “interpretation” and “construction” interchangeably. Some authors like to maintain a strict separation and “interpret legislation” and “construct a contract”. I don’t believe this strict distinction is necessary.

How to survive the first winter at your law firm

What is so scary about winter as a law graduate in a Sydney law firm?

In essence, the depressing change of season will coincide with your graduate lawyer work load increasing. It will be raining constantly, the howling wind will make it sound as though your building is about to collapse, and the sun sets hours before you get to leave the office. The air temperature in your building will never be warm enough because studies have shown workers are more productive when they are slightly cold. Heaters are not standard issue to law graduates.

If this is not enough to worry you, around this time of the year your “honeymoon period” at your law firm comes to a close. The welcome drinks, orientations and easy billable hours will end. You will be expected to do real work, produce billable hours and you may even be changing rotations and having to settle into a new team. Winter is the business end of the year, especially around the EOFY. You will probably be working long hours to meet your team’s annual billable targets. This is the reality of being a lawyer, but can be a shock the first time around.

10 ways to survive the winter:

1.       Get sunlight

Standing in the shard of light coming in through the office window does not count. Vitamin D deficiency is real among office workers. If you have forgotten what Vitamin D is, it helps keep your bones strong and healthy and has other general health benefits. Sunlight also releases endorphins. Direct quote from Cancer Council Australia on how much sunlight you need on a daily basis:

“In winter in the southern parts of Australia, where UV radiation levels are less intense, people may need about two to three hours of sunlight to the face, arms and hands, or equivalent area of skin, spread over a week to maintain adequate vitamin D levels. In winter in northern parts of Australia, people will continue to maintain adequate vitamin D levels going about their day-to-day activities, so it is not necessary to deliberately seek UV radiation exposure.”

Sydney is neither in the North or South of Australia, so something in between will suffice. You need to actually expose your skin. Your face and hands generally will not be enough.

2.       Eat and drink hot food

Not only is hot food comforting, it assists in heating up your core temperature, which will be low from sitting down most of the morning. Homemade soups are super healthy and nutritious and are a good choice. Salads can be relegated to summer. Your tea addiction can also be useful to warm you up. Tea is particularly nice after a windy and cold trek through Phillip Street to the Supreme Court precinct.

3.       Produce endorphins

One of the easiest ways to produce endorphins is to move around. This could be going to gym before work, but any kind of movement can produce endorphins. You could walk to court instead of getting a taxi. You could walk up the stairs to have a chat to a colleague on a different level. You could go to the kitchen and do some stretches (while standing in a ray of sunshine).

4.       Do things on the weekend

My theory about why winter seems so long and drawn out sometimes is that people don’t do anything. Your weekend goes from “beach, walk with friend, gym, catch up with friend for coffee, dinner out” to “sleep in, sleep in some more, eat, watch TV, Facebook”. When you have too long to mull over things and stay cooped up inside, things drag out. Make your life exciting in winter by planning social activities for the weekend.

5.       Do things after work

The same reasoning applies as for (4). During summer, after work usually includes a social or sporting activity. This often stops in winter, where you may go straight home to your bed or the TV. This may seem like a good idea, but it makes your week feel as though you were at work 100% of the time.

6.       Talk to your colleagues about the weather

It may seem counter intuitive but talking to your colleagues about the weather is team building and mood-lifting. I used to think talking about the weather was uncreative and boring. Then I realised everyone in Sydney is obsessed with it. You will come across as suspicious if you do not enjoy talking about the weather. You could talk to your colleagues about anything and get the same results, but the weather is a safe topic. Especially when you are watching the hail fall on the other side of the window.

7.       Use your annual leave

Most law firms have a Christmas shut down where you will be forced to use up to two weeks of your annual leave. You will have 10 days left. Make sure you use them. There are no long weekends in winter, but you could make one by using a day of annual leave. If you do not take annual leave there is a risk of crash and burn and job performance issues. Studies have also shown those who take their 20 days annual leave are healthier than those who do not and have enhanced engagement levels.

8.       Do not go to work when you are sick

This should go without saying, but so many people go to work sick and then infect all their colleagues. You have sick leave for a reason. Do what is best for yourself and your firm and stay at home when you are infectious. You should also opt in for the free influenza vaccine that most law firms provide to staff.

9.       Invest in a foot heater

If you get cold easily, I recommend going to K-Mart and buying your own foot heater. Sneakily install it under your desk where the computer power points are. This can make a big difference to your quality of life at work. 

10.   Keep spare shoes and clothes at work

At least once a year you will get drenched by gutter water from a passing bus while walking up George Street. Usually it is when you are in your new shoes and just-dry cleaned coat. You will need spare shoes and clothes at work for these occasions. You have been warned!

ICAC v CUNNEEN [2015] HCA 14 – GOING BEYOND THE POLITICS

Introduction

The recent High Court case of the Independent Commission Against Corruption v Margaret Cunneen & Ors [2015] HCA 14 has been heavily criticised by journalists, politicians and some members of the legal profession for taking an alleged “narrow” approach to “corrupt conduct” and reigning in ICAC’s powers. These critics claim that the court should have taken a broad approach to interpretation as this would have produced a more useful political outcome. In this article I argue that the High Court’s legal reasoning is correct. Instead of starting from a desired political outcome, I analyse the High Court’s reasoning using the principles of statutory interpretation. While I found one of Gageler J’s reasons in the dissent compelling, I found the majority’s reasoning could still stand on other pillars of reasoning.

Background to the case

ICAC began an investigation into Margaret Cunneen, Deputy Crown Prosecutor of NSW. The alleged conduct was that Cunneen gave her son’s girlfriend certain legal advice when she had a car accident to avoid having a breath test. The alleged advice was that her son’s girlfriend should pretend having chest pains. Cunneen commenced action on two main grounds:

1.       That the allegations did not constitute “corrupt conduct” and the investigation was therefore beyond ICAC’s powers; and

2.       That ICAC provide reasons for its decision to commence an investigation.

Cunneen was unsuccessful before the primary judge on both points. ICAC is not required to disclose reasons for its decision to commence an investigation as section 111 of the ICAC Act entitled “secrecy” provides that ICAC is not required to produce documents or divulge information in court. Cunneen appealed on both point (1) and point (2).

In Cuneen v ICAC [2014] NSWCA 421 the Court of Appeal (Bathurst CJ, Basten JA, and Ward JA) affirmed the primary judge’s reasoning for ICAC not having to provide reasons for its decision to commence an investigation. However, Cunneen was successful before the New South Wales Court of Appeal on point (1). While the reasons between judges differed, the Court of Appeal held that the investigation was beyond ICAC’s powers because the alleged conduct was not “corrupt conduct”. ICAC applied for leave to appeal to the High Court.

Key sections of the ICAC Act

One of the functions of ICAC is to investigate corrupt conduct (s13 ICAC Act). “Corrupt conduct” is defined in sections 7 to 11 in Part 3 of the ICAC Act. In particular, section 8 describes the general nature of corrupt conduct. Section 8(1) and section 8(2) are the focus of the case. Section 8 establishes five main categories of “corrupt conduct”:

1.       Conduct adversely affecting directly or indirectly the honest or impartial exercise of official functions (s8(1));

2.       Dishonest exercise of official functions (s8(1));

3.       Breach of public trust (s8(1));

4.        Misuse of information acquired in the course of official functions (s8(1)); and

5.       Conduct that adversely affects, or that could adversely affect directly or indirectly the exercise of official functions by any public official, such conduct including perverting the course of justice (s8(2)).

For ICAC to be successful in the High Court, it would have to successfully argue that Cunneen’s alleged conduct fitted in one of these categories of “corrupt conduct”. ICAC argued for what I have labelled as Category 5 (italicised above). The interpretive question the High Court faced was specifically concerned with the meaning of s8(2), in particular the interpretation of the phrase “adversely affect”.

Section 2A of the ICAC Act is also important, as it states the principal objects of the ICAC Act and is referred to by the High Court in the course of interpreting section 8. I have pasted section 2A in full:

The principal objects of this Act are:

(a) to promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body:

(i) to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and

(ii) to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community, and

(b) to confer on the Commission special powers to inquire into allegations of corruption.

What was the legal question before the High Court?

The majority phrased the question as:

“what is meant by the expression "adversely affects, or that could adversely affect ... the exercise of official functions by any public official" in the definition of "corrupt conduct" in s 8(2)” ([1]).

Gageler J also focuses on this question in his dissent, but framed the question more broadly, as “whether ICAC has power to investigate an allegation of criminal conduct having the potential to impede or impair the exercise of an official function by a public official in a manner involving no wrongdoing on the part of that public official” ([73]).

More specifically, the High Court was choosing between two possible alternative meanings of “adversely affect” in s8(2):

1.       Narrower meaning: Adversely affect or could adversely affect the probity of the exercise of an official function by a public official;

2.       Broader meaning: Adversely affect or could adversely affect the efficacy of the exercise of an official function by a public official in the sense that the official could exercise the function in a different manner or make a different decision from that which would otherwise be the case ([2]).

What was the High Court’s answer?

The High Court ruled 4-1 that ICAC had no power to investigate those affairs as the alleged behaviour did not fall into the definition of “corrupt conduct”, specifically the definition in s8(2). The majority (French CJ, Hayne J, Kiefel J and Nettle J) delivered a joint judgment. Gageler J dissented.

The majority found that the narrower meaning was the correct interpretation. This resulted in the alleged conduct not being within the ambit of “corrupt conduct” and ICAC having no power to investigate the matter. In his dissent, Gageler J argued for the broader meaning of “adversely affect”.

Did the majority’s reasoning correctly follow the principle of statutory interpretation?

The modern purposive approach to statutory interpretation was clarified in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355. Project Blue Sky requires the text being interpreted to be considered in light of its context and purpose. Section 33 of the Interpretation Act 1987 (NSW) requires that a construction promoting the purpose or object of the Act to be preferred to a construction that would not promote that purpose or object.  I go through the majority’s reasoning under the headings “Text”, “Context” and “Purpose” to show how sound the majority’s reasoning is. I also incorporate the dissenting judgment into my comments.

Text

The Project Bluesky approach requires interpretative analysis to start with the text to identify the plain and ordinary meaning. The ordinary meaning rarely ends up being the legal meaning, but it serves as a starting point for analysis.

The majority do cover this initial step, but do not identify an ordinary meaning. Instead they say “adversely affects” is a “protean expression capable of a number of meanings according to the context in which it appears” ([56] and [60]). They assert the meaning should be “adversely affect” as understood by public administration in the context of corruption (see discussion below). This is in contrast to Gageler J’s dissent and ICAC’s submissions that “adversely affect” has an ordinary meaning, being the broader meaning described above. Even if this is so, the Project Bluesky approach does not allow one to stop there. The ordinary meaning is merely the starting point and must be considered in context and in light of the statutory purpose.

Where Gageler J in his dissent really departs from the majority is the authority he relies on to support his interpretation. His argument is essentially that the plain and ordinary meaning of “adversely affects” is the broader meaning and that this should not be departed from unless there is a clear reason to do so (contrast with the modern Project Bluesky approach requires context and purpose to be considered in all cases). Gageler J relies on the case of PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 where it is stated “it is "of fundamental importance" that the language of the definition is accorded its "natural and ordinary meaning unless some other course is clearly required", and that "limitations and qualifications are not read into" the definition unless "clearly required by its terms or its context". We don’t need to go into the dissent too much, but I would just like to make two points:

1.       PMT Partners was decided in 1995, before 1998 when Project Bluesky clarified the modern purposive approach to interpretation that context and purpose must always be considered;

2.       Even the PMT Partners approach appears to allow for context and purpose to be taken into account. Something that Gageler J does not appear to do in his dissent. While Gageler J does analyse the context of section 8, he does not link it back to the ordinary meaning of the text and does not contemplate the influence of this context on changing the ordinary meaning ([81] – [82]).

Context

This requires the text being interpreted to be read in the context of the rest of the Act. The Act is concerned with the integrity of public administration. This context informs the meaning of “adversely affects”. As the majority point out, the narrower meaning is consistent with the ordinary understanding of corruption in public administration, while the broader meaning is inconsistent with this understanding, as it would enable ICAC to exercise its “extraordinary coercive powers” well beyond the ordinary understanding of corruption and public administration ([3]). Public law principles also come into play here, where the judiciary generally take a more limited approach when dealing with coercive powers limiting the rights of individuals.

Considering the text in context with the rest of the Act can involve reconciling provisions within the Act. The majority cite the Project Bluesky approach to reconiliation:

"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'.”

In particular, they emphasise achieving a result that maintains the unity of all the statutory provisions ([31]).

This approach becomes important when the majority start analysing the words “adversely affect” with the rest of section 8, particularly s8(1). To reconcile the subsections, s8(2) becomes a two pronged test, as it takes on some of the characteristics of s8(1) (see [45] onwards). Conduct will be “corrupt conduct” for the purposes of s8(2) where:

1.       The conduct in question “could involve” any of the matters in 8(2) (a)-(y); and

2.       The conduct adversely affects or could adversely affect the probity of the exercise of an official function in one of the ways listed in s 8(1)(b)-(d).

The High Court argue that this construction, and the more narrow use of the words “adversely affect” is favourable, as it is consonant with the language in s2A and s9 and embraces offences which could affect the integrity of public administration and excludes those which could not.

Context can sometimes involve consideration of extrinsic material. Section 34 of the Interpretation Act 1987 (NSW) permits extrinsic material to be used in interpretation for two uses:

1.       To confirm the meaning is the ordinary meaning conveyed by the text; and

2.       To determine the meaning of the provision where the provision is ambiguous or obscure OR if the ordinary meaning leads to a result that is manifestly absurd or unreasonable. 

There is a war of words between the majority and the dissent on extrinsic material. The majority use the Explanatory Note to argue that ICAC was not intended to operate as a general crime commission and therefore the narrow interpretation is correct ([54] and [67]). Gageler goes into much more detail in the legislative history and convincingly argues that the majority is mislead in its reliance on this. While I believe Gageler J is correct here, the use of extrinsic material is not a major pillar of the majority’s reasoning, and the rest of the majority’s reasoning is still sound.

Purpose 

The ICAC Act has an “objects section” in section 2A (pasted above). The Objects section can be used to identify the purpose of the Act, but if this purpose conflicts with a more specific purpose identified elsewhere in the statute, this more specific purpose is to prevail (Russo v Aiello (2003) 215 CLR 643 at 645). The ICAC Act is relatively small, and no conflicting purposes are identified. The High Court can therefore rely on the legislative purpose as stated in the objects section.

The majority point out that the narrower meaning of “adversely affect” is consistent with the objects in s2A and that the broader meaning is inconsistent with these objects ([3]). The Act is directed to investigate, expose and prevent corruption affecting public authorities. It is therefore not likely it was intended to reach to a broad array of crimes having nothing to do with corruption in public administration apart from a direct/indirect effect conceivably had on the efficaciousness of public officials ([53]).

Conclusion

I hope I have demonstrated that the High Court majority had no choice. Once they had applied the principles of statutory interpretation, the legal meaning of “adversely affect” was clearly the narrower meaning. While to some commentators this may have lead to an unsatisfactory result politically, with ICAC’s powers potentially limited, this is not a concern of the High Court. In the traditional view of the separation of powers, if the public have an issue with legislation as it stands, such as the ICAC Act, they need to lobby the parliament for change through the usual processes. It is not the High Court’s role to be concerned with political outcomes.

There has been a lot of fear mongering that parliament could never get its act together to increase the investigative powers of ICAC by expanding the definition of corrupt conduct. I am not convinced by these arguments. Who do you think made the ICAC Act in the first place? While the political mood of parliament may change, there is no reason why the legislature, which managed to pass an Act establishing ICAC could not amend the Act.