I am able to offer advice and representation on tax, government and regulatory matters in all Australian jurisdictions. I am willing to consider accepting electronic briefs. I accept briefs directly from in house counsel.
Representation of government and private clients
In accordance with the cab-rank rule, embodied in rule 21 of the Western Australian Barristers’ Rules, I accept briefs in relation to regulatory matters both from government and private clients. Accepting briefs from both sides has advantages to both. It has been said, I think correctly, that “experience of representing both ‘sides’ within a particular field produces better barristers.”1 Litigation can be like a game of chess. Having acted on both ‘sides’ gives me insight into how the other side is likely to react.
Recent years have seen a ballooning of remedies available to various government and regulatory departments, agencies and bodies.
In some cases there are ‘self-help’ remedies: the agency can issue a notice or make a decision and it is up to any aggrieved party to challenge that in the Courts.
In other instances the government must apply to the Court for the relief sought. Often these applications are brought inter partes (on notice to effected parties). In a growing number of cases initial relief at least may be sought ex parte (without notice).
Remedies: Civil penalty provisions
Civil penalty provisions have also become popular with the Legislature. They enable regulators to rely on the rules of evidence and procedure applicable in civil proceedings, but equally serve as a deterrent, both specific and general, much like the criminal law.
Complex disputes with government
Consideration of a complex dispute with government should ordinarily begin with a consideration of the relevant constitutional, statutory and regulatory provisions. To be fully effective any consideration (whether for advice or litigation purposes) must in my view also take into account:
- The legislative history;
- Case law on the relevant statutory provisions, as well as case law on similar provisions found within the same or other statutes;
- Statutory extrinsic material (for instance the explanatory memoranda, Parliamentary debates, Law Reform Commission reports, other specially commissioned reports).
- Policy documents (which may only be accessible under a Freedom of Information application);
- Annual reports of the relevant department or agency;
- Any information published on the website of the department or agency; and
- Applicable interpretation, procedural and evidentiary provisions (typically found in extraneous legislation).
Financial Regulation and Confiscation
I have direct experience in matters concerning:
- Proceeds of Crime Act 2002 (Cth);
- Criminal Property Confiscation Act 2000 (WA);
- Debt recovery by the ATO including under the Taxation Administration Act 1953;
- Money Laundering;
- Bribery of foreign public officials;
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth); and
- Autonomous Sanctions Regulations 2011 (in relation to financial affairs of politically exposed persons or PEPs).
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Royal Commissions, Coronial Inquests and Commissions of Inquiry
I am available to advise and appear in relation to Royal Commissions, Coronial inquests and Commissions of Inquiry.
On instructions from solicitors I am available to conduct internal investigations into fraud, corruption or misconduct and provide an opinion to management or board level.
Having worked in-house for government for 8 years I have:
- An understanding of the constitutional principles that apply in particular to the operation of all facets of Commonwealth Government legal work, and which can have application to State Government matters.
- An understanding of the principles of statutory interpretation that apply to provisions that vest powers in Government departments and agencies.
- A detailed understanding of government decision making processes, and just as importantly the means by which administrative decisions can be challenged.
- An appreciation of the policy considerations that are brought to bear in most Government decision making processes. There are occasions where parties aggrieved by a government decision are better advised to make a public interest submission instead of, or at least before, launching a legal challenge.
- Considerable insight into how to engage with government in relation to legal disputes.
- Knowledge of a number of agencies (including ASIC, ATO, ACC, AFP, DPP, ACCC, Immigration, Customs, Australian Government Solicitor) and their functions and key staff.
For more information about my experience in taxation matters, regulatory investigations and litigation please call me on 08 9220 0592, 0417 921 300 or contact me online.
- The “cab rank rule”: a fresh view” (Bar Standards Board, England & Wales) by M McLaren QC, C Ulyatt & C Knowles 28 February 2012 at