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WORKPLACE LAW SPECIAL EDITION
from page 22 Vaccination guide Legal firms Employment status Wages Fair Work Act Employment protection
Law firms after COVID-19 How firms have adapted By Karin Derkley
Zooming into new jobs The challenge of starting a new role during the pandemic By Karin Derkley
Health and wellbeing Accentuate the positive By Megan Fulford
page 87 ADOBE STOCK
MAY 2021 LAW INSTITUTE JOURNAL 1 Contents May 2021 workplace law special edition
Protect the best interests FEATURES NEWS EVERY ISSUE 4 Contributors OCCUPATIONAL HEALTH AND SAFETY FIRMS 6 From the president Law firms after COVID-19 of your clients with 22 A shot in the arm 11 8 Unsolicited A COVID-19 vaccine has arrived but the The pandemic dealt an initial blow COURTS & PARLIAMENT pandemic's twists and turns are not over yet. to the legal profession, but firms have By Susanna Ritchie and Mariah Khoury adapted and regrouped and some 46 High Court judgments are looking at better times ahead 48 Federal Court judgments independent advice from LEGAL FIRMS as a result. By Karin Derkley 50 Family law judgments 26 A look to the future: The year is 2031 . . . 52 Supreme Court judgments Ever wondered what a law firm will look like EMPLOYMENT 54 Legislation update in 10 years? We look to the future to interview 15 Zooming into a new role 56 Practice notes Victoria’s leading team managing partner of mid-sized, full-service firm The LIJ talked to four lawyers who REVIEWS Champion Premier & Goodluck (CPG) Michelle have faced the challenge of starting 59 Online Champion. By Chris Molnar a new job during the pandemic. 60 Books By Karin Derkley EMPLOYMENT STATUS 62 LIV Library of property experts. RURAL 30 Employee or contractor PRACTICE – the eternal conundrum 18 In the aftermath of trauma 64 Ethics Recent decisions in state and federal courts By volunteering on the ground 65 LPLC as well as the Fair Work Commission reveal the after the bushfires lawyerKatherine 67 Property • Single expert witness challenges that can arise in modern working Argentino gained invaluable insight 68 Technophile arrangements such as labour hire, casual into her East Gippsland community. 69 VLSB+C employment and workers in the 'gig economy'. • Family Court/Federal Circuit property valuations OPINION 70 According to merit?/Diversity By Marc Felman and Tessa Duthie 71 Young Lawyers 19 Emergency powers need scrutiny • Compulsory acquisition and resumption valuations WAGES Ensuring accountability through CAREER 34 Wage theft: COVID-19 lockdowns and curfews 72 Admissions • Litigation support across most types of property State and federal tension is a human rights issue. LIV There are questions about the constitutional By Rosalind Croucher validity of the Wage Theft Act and concerns 74 Advocacy • Acquisitions and disposals OBITUARY employers could be subject to investigations CLASSIFIEDS from Wage Inspectorate Victoria and the Fair 20 Brian Patrick McCarthy 82 Crossword • Insurance valuations Work Ombudsman for the same circumstances. LIV president 1976-1977 By Nadia Stojanova • Receivership and liquidation support/advice FAIR WORK ACT 38 Freedom to associate The second form of 'industrial association' recognised by the Fair Work Act 2009 and some of the interesting ways it is deployed by the Act are addressed here. By Malcolm Harding
EMPLOYEE PROTECTION 42 Workers more generally protected LIVING LAW Recent Full Court decisions bring the operation of the Fair Work Act's narrow ‘complaints and 83 Inside stories 85 Food/Wine/Coffee inquiries’ protection closer than it has been 86 With all due respect p 03 9642 2000
in years to its purpose – protecting employees STOCK ADOBE 87 Health and wellbeing from retribution. 88 Beyond the law e [email protected] By Angus Mackenzie w htw.com.au
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• Single expert witness • Family Court/Federal Circuit property valuations • Compulsory acquisition and resumption valuations • Litigation support across most types of property • Acquisitions and disposals • Insurance valuations • Receivership and liquidation support/advice
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LIV FP March 2021.indd 1 1/4/21 1:52 pm Contributors LAW INSTITUTE JOURNAL
editorial editorial policy Managing editor Views expressed by Carolyn Ford contributors are not 03 9607 9319 necessarily endorsed by the [email protected] Law Institute of Victoria Ltd www.liv.asn.au/lij and services offered by third Production editor party advertisers are not to be taken as having been endorsed Mary Kerley by the LIV. No responsibility Senior journalist whatsoever is accepted by the Karin Derkley LIV, the editor or the printers Senior legal editor for the accuracy of inform Libby Brown ation contained in the text or the services offered in the Susanna Ritchie Mariah Khoury Legal editor advertisements. Maria Atwell Managing lawyer at Launch Legal. Lawyer at Launch Legal. Neither the LIV nor the LIJ in Art director any way endorses or takes page 22 page 22 Natalie White any responsibility whatsoever Graphic designer for any material contained on Jacquie Grabert external websites referred to by the LIJ. submissions The LIJ is a peer reviewed Submissions for legal publication. features, opinion pieces and Small sums of money from other articles should go to the Copyright Agency Limited [email protected] (CAL) are periodically payable advertising inquiries to authors when works are copied by CAL licensees Advertising sales executive (including government Samuel Ioffe departments, tertiary 03 9607 9496 institutions etc). [email protected] www.liv.asn.au/lij As it is not financially viable for the LIJ to collect and distribute subscription inquiries these royalties to individual Chris Molnar Marc Felman authors, contributors undertake [email protected] to become a member of CAL http://tinyurl.com/b9suvbr Accredited specialist in workplace Barrister at the Victorian Bar. and receive any payments Annual subscription: relations and a partner at Kennedys. page 30 directly (see copyright.com. au) or they waive all claims page 26 Domestic: • Hard copy plus 1 online to moneys payable by CAL user $211.75 (inc. GST) for works published in LIV • Hard copy plus 2-20 online publications. It is a condition users $605 (inc. GST) of submission of an article that • Hard copy plus 101 – 200 contributors agree to either online users $1210 (inc. GST) of these options. Overseas: On provision of the editorial • Hard copy plus 1 online materials (the Materials) user AU$363 for publication in the Law Institute Journal, the author lij working group grants to the Law Institute Gerry Bean of Victoria (LIV), a perpetual Carolyn Ford non-exclusive licence to Geoff Gronow reproduce, adapt or broadcast Melissa Macken the Materials provided in Chris Molnar hard copy and/or electronic Tessa Duthie Nadia Stojanova Cameron Ross form, either solely or with James Turnbull others, for the purposes of Barrister at the Victorian Bar. Barrister at the Victorian Bar. distribution to authorised thank you to our subscribers, members, and page 30 page 34 regular contributors to generally in Law Institute of for may: Victoria publications including online, on social media and Peter Moran the LIV website. The author Craig Nicol waives any and all claims Keleigh Robinson resulting from the distribution Dr Michelle Sharpe of the Materials, apart from Dan Star QC those which may not be Dr Michael Taylor waived under Victorian law.
distribution law institute of victoria The LIJ is printed 140 William Street by Southern Impact. Melbourne 3000 This issue of the LIJ is cited GPO Box 263, Melbourne 3001 as (2021) 95(5) LIJ. DX 350 Melbourne 03 9607 9311 ISSN 0023-9267 PP 100007900 l[email protected] www.liv.asn.au Malcolm Harding Angus Mackenzie © 2021 Law Institute of Victoria Ltd. @YourLIV Barrister at the Victorian Bar. Associate in the employment @LIVPresident ABN 32 075 475 731. blog www.liv.asn.au/ page 38 and industrial law section of Maurice Blackburn Lawyers. YoungLawyersBlog
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4 LAW INSTITUTE JOURNAL MAY 2021 Craig Lynch LIV ACCREDITED Practice Group Leader, Slater & Gordon; Accredited Specialist, SPECIALISATION Personal Injury Law
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Find out more at: www.liv.asn.au/Specialisation From the president LEGAL DISPUTE RESOLUTION SERVICES DL DELIVERING PRACTICAL SOLUTIONS D E V E R’S L I S T WE WELCOME THESE BARRISTERS PATRICK REBECCA COLERIDGE MCCARTHY • Appellate • General Commercial • Public Law & • Bankruptcy & Insolvency LIV goes regional Administrative Law • Corporations/ • Criminal Law Company Law Meeting lawyers in northwest Victoria was an • Constitutional Law • Directors’ Duties eye-opening experience. • Competition & • Equity and Trusts Consumer Law • Property Towards the end of March, I joined a small LIV contingent, the court’s schedule. It has become more expensive in some • Inquests, Inquiries, • Immigration/ Migration including CEO Adam Awty, on a three-day road trip to northwest instances to pursue justice than to walk away. Clients are Tribunals & Commissions • Building and Construction Victoria, taking in Euroa, Shepparton, Echuca, Swan Hill, Mildura being encouraged to settle for less even when their legal • Common Law and Bendigo. positions are strong. We went to meet regional lawyers and to hear how they In property law practices, the inability to effect electronic • Class actions and their clients are emerging from COVID-19. transactions for water entitlements through PEXA and delays We all had to transform the way we practised last year, of up to two years with a response from the Land Titles Office are HARRY AMEL with many new measures put in place that allowed us to sources of widespread frustration. continue to help our clients and keep courts open. The road Regional court infrastructure continues to be challenging HILL-SMITH MASINOVIC trip gave us the opportunity to hear what worked for regional – both its physical usefulness and digital capacities. • General Commercial • Public Law & lawyers, what measures they thought should stay and what This presents access to justice challenges for many clients • Bankruptcy & Insolvency Administrative Law could be done to improve access to justice. who find it difficult to participate in online hearings. • Corporations • Commercial Law It was an eye-opening experience. For some, the hardest Recently, one client was released from Ravenhall on • Contract • Regulatory Tribunals part about last year was being an employer, with its attendant a therapeutic order, with supports in place but with no money uncertainty and anxiety, particularly before the introduction of or transport back to Shepparton. The client reoffended and • Banking & Finance • Environment & JobKeeper. Often in small practices, staff are like family, sharing was back in custody the next day. Another client had to appear • Common Law Planning Law in each other’s lives, celebrating weddings and births, often in person, as the Cobram court did not have online hearings. • Public Law & • Mining Law over decades. In the early days of the pandemic, the prospect Limited public transport options meant that person travelled Administrative Law • Alternative Dispute of having to let people go, was crushing. the day before, slept in a park and was then the victim of • Alternative Dispute Resolution (ADR) Despite this, we heard time and again of the benefits of a violent assault. working in the country. Lifestyle was mentioned frequently; There are some silver linings. To the envy of city criminal Resolution (ADR) • Competition Law freedom from the hustle and bustle of the city; a better lawyers, regional lawyers are appearing in person. They are work-life balance. retaining close relationships with court staff and are often Imagine, we were told, getting to work in a matter of minutes contacted by registrars or coordinators in advance of matters PAUL ROSE and parking easily, out the front of your office. Driving through being called. However, many regional lawyers despair at the JEFFREYS SINGLETON the beautiful expanse of northwest Victoria, I could see limited supports for clients. In Echuca, there are few options the attraction. to help clients with addiction or mental health issues, or to • Commercial Law • Common Law There was talk of close relationships with clients, built address the complex challenges that often perpetuate the cycle • Appellate • Inquests, Inquiries, over years, with practitioners walking beside their clients of offending. In many regional courts, there is no CISP program • Taxation Tribunals & Commissions and supporting them through various legal issues, spanning to refer people on bail to supports geared to address underlying • Corporations • Public Law & a lifetime. A rich sense of community was conveyed, and many issues before a matter is finalised. • Bankruptcy & Administrative Law talked about the quality of work and early exposure to a wide Overall, however, it seems that regional practitioners fared range of legal issues as a regional practitioner. better than city and suburban lawyers during COVID-19 – and Insolvency • Criminal Law It almost seems as though regional legal practice is Victoria’s bounced back quicker. Many lawyers expressed their gratitude • Equity, Trusts & Probate • Appellate best-kept secret. We heard, repeatedly, how hard it is to attract for the LIV response to the pandemic: they found the COVID-19 • Public Law & • Alternative Dispute and retain young lawyers. There is demand; there are busy, viable hub helpful and are benefitting from their new ability to engage Administrative Law Resolution (ADR) practices where senior lawyers are seeking a succession plan, in sections, committees, conferences and CPD online with the • Inquests, Inquiries, with no one to pass the baton to. same ease as their city counterparts. “Don’t stop offering that”, There are other challenges faced by regional lawyers. one of the lawyers said to me. Tribunals & Commissions Some civil practices have all but collapsed due to the often We won’t. There is still much more to be done. ■ inestimable delay before a matter may be heard, particularly Dever’s List in the lower courts. There are significant financial disincentives Tania Wolff liv president [email protected] @LIVPresident Barristers’ Clerk to pursuing some claims, with costs ballooning to fit in with Telephone: (03) 9225 7999 24 hour contact: 0416 087 999 | Email: [email protected] deverslist.com.au
6 LAW INSTITUTE JOURNAL MAY 2021 LEGAL DISPUTE RESOLUTION SERVICES DL DELIVERING PRACTICAL SOLUTIONS D E V E R’S L I S T WE WELCOME THESE BARRISTERS PATRICK REBECCA COLERIDGE MCCARTHY • Appellate • General Commercial • Public Law & • Bankruptcy & Insolvency Administrative Law • Corporations/ • Criminal Law Company Law • Constitutional Law • Directors’ Duties • Competition & • Equity and Trusts Consumer Law • Property • Inquests, Inquiries, • Immigration/ Migration Tribunals & Commissions • Building and Construction • Common Law • Class actions HARRY AMEL HILL-SMITH MASINOVIC • General Commercial • Public Law & • Bankruptcy & Insolvency Administrative Law • Corporations • Commercial Law • Contract • Regulatory Tribunals • Banking & Finance • Environment & • Common Law Planning Law • Public Law & • Mining Law Administrative Law • Alternative Dispute • Alternative Dispute Resolution (ADR) Resolution (ADR) • Competition Law
PAUL ROSE JEFFREYS SINGLETON • Commercial Law • Common Law • Appellate • Inquests, Inquiries, • Taxation Tribunals & Commissions • Corporations • Public Law & • Bankruptcy & Administrative Law Insolvency • Criminal Law • Equity, Trusts & Probate • Appellate • Public Law & • Alternative Dispute Administrative Law Resolution (ADR) • Inquests, Inquiries, Tribunals & Commissions Dever’s List Barristers’ Clerk Telephone: (03) 9225 7999 24 hour contact: 0416 087 999 | Email: [email protected] deverslist.com.au Letters LAW INSTITUTE JOURNAL OCCUPATIONAL HEALTH AND SAFETY | LEGAL FIRMS | EMPLOYMENT STATUS | WAGES | FAIR WORK ACT | EMPLOYEE PROTECTION MAY 2021 MAY
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RRP $20 95.5 Innocent until proved guilty? One of the concepts to come out of the Me LETTERS Too movement is that when a woman makes TO THE EDITOR an allegation of sexual harassment or assault Email: [email protected] against a man, “the woman should be believed”. Mail: Law Institute Journal I understand that this arises out of frustration managing editor with a historical reluctance to prosecute Carolyn Ford, GPO Box 263, (except in clear cut cases). Melbourne 3001; or DX 350 Melbourne. However, it has now been taken as the making of an allegation should be dispositive of the issue We reserve the right to of the man’s guilt. The premise behind this must edit letters and to republish them in their be that women never fabricate such allegations; original or edited form on and women never suffer from a mental condition the internet or in other whereby they either distort an actual event, or media. Letters must imagine things that did not take place; Ergo men include a phone number always lie if they deny the allegation. and address for authentication. In effect innocent until proved guilty means in these cases that the making of an allegation proves that the accused is guilty. ■ Michael Helman
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Friday 18 June 2021, 9am–4.20pm | Digital Conference
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From the adaptive COVID-19 Omnibus (Emergency Measures) Bill 2020 to the long-term legislative changes occurring this year, the pandemic has served as a catalyst for government transformation. As we emerge from a reactive state, the 2021 conference program examines the need for public sector reforms to shape a more citizen-centred sustainable future. Using law to drive Don’t miss this opportunity to come together and engage in important positive change discussion with experts in the field and peers in the public sector. Whether you work in federal, state or local jurisdictions, or practice in-house with government funded corporations or universities, there is something in this program for everyone.
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STUDENT GRADUATSTUDENTE GRADUATSTUDENTNEW E PRACTISINGGRADUATNEW E PRACTISINGAFFILIANEW TE PRACTISINGAFFILIATE AFFILIATE SOLICITOR SOLICITOR SOLICITOR
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For further information and to register visit www.liv.asn.au/Government21 news FIRMS | EMPLOYMENT | RURAL | OPINION | OBITUARY
LAW FIRMS AFTER COVID-19
THE PANDEMIC DEALT AN INITIAL BLOW TO THE LEGAL PROFESSION, BUT FIRMS HAVE ADAPTED AND REGROUPED AND SOME ARE LOOKING AT BETTER TIMES AHEAD AS A RESULT. BY KARIN DERKLEY
Just as every individual experienced lockdown differently, law expected to be more profitable this year, with nearly a quarter firms also varied in how they were affected by the COVID-19 expecting profitability to rise by more than 20 per cent. pandemic and the restrictions put in to curb its spread. The better than expected performance is not uniform The first national lockdown from late March to May 2020 though. Firms or teams dealing with criminal law matters, put a chill wind through the profession, as staff were forced personal injury litigation, and mergers and acquisitions to work from home, matters had to be heard remotely, have seen a decline, while others working on bankruptcy, and clients’ businesses suffered. Many firms cut salaries, risk management and restructuring have thrived. Property sometimes accompanied by reduced hours, sometimes not. suffered initially, and then saw an unprecedented Bonuses were cut, promotions paused and staff hiring plans bounce-back. were put on ice. Clients are becoming more demanding, putting pressure Victorian firms suffered a double blow, enduring an on law firms to drive down fees and insisting on fixed fee additional four-month lockdown on top of the six weeks arrangements rather than the uncertainty of billable hours. experienced by the rest of the country. The slow return The Legal Market Pulse survey found that 64 per cent of to the office meant many Victorian lawyers worked from firms reported downward pressure on fees, and 61 per cent home for nearly a year. demanded more work for less. Smokeball found that half But as restrictions started lifting from November, many of small firms had seen an increase in requests for fixed fee law firms revealed that what had been expected to be a time pricing in the past 12 months, and nearly 65 per cent expected of plummeting revenues was instead turning into a period those demands to increase in the next 12 months. of surprisingly strong growth. The biggest transformation in the past year though According to CommBank Legal Market Pulse almost eight has been the wholesale acceptance of work from home in 10 law firms in Australia reported stable or rising profits arrangements, and the assumption that those will continue in the 2020 financial year compared to the previous financial even when the pandemic is over. That has put a question over year, with an average profit increase of 7 per cent across the the role of the office in the future, with some firms seeking to sector. Firms are optimistic about the future too, with profit reduce their footprint and others seeking to re-envisage the increases of 5.5 per cent expected for the financial year 2021. workplace in a bid to entice workers back to the office. Smaller law firms also reported they were relatively The LIJ spoke to five firms, both large and small, to see how optimistic about their prospects for the year ahead. A survey by they fared during the pandemic, what kinds of changes they Smokeball found that nearly three quarters of Victorian firms brought in, and how they are feeling about the year ahead. ADOBE STOCK
MAY 2021 LAW INSTITUTE JOURNAL 11 news Firms
DLA Piper, not see a significant shrinkage in the floor plates we have, but we may be configuring that space in a different way so Amber Matthews that it allows for more flexibility of use and encourages more When the first lockdown collaborative environments.” hit in March last year, DLA Piper’s employment teams Ashurst, Ross were run off their feet McClymont with inquiries from clients Ashurst Melbourne office about how to manage their managing partner Ross workforces, says managing McClymont says that after partner Amber Matthews. a strong start to the year “We had clients who were he is feeling “cautiously concerned that they would optimistic” about 2021. be in financial distress, so they came to us for some assistance “Given the amount of with refinancing facilities. Other clients needed to raise capital.” liquidity in the economy, and Meanwhile, transactional activity associated with buying and the distressed opportunities selling large assets, M&A activity, and other corporate practices created by the pandemic, like tax, slowed down. “But our litigation teams were very busy our corporate team had an extremely busy year and that shows providing regulatory and strategic advice on things like breaches no signs of letting up in 2021.” of contract or force majeure clauses, and how to deal with supply That optimism has fed into a significantly increased challenges.” The firm’s real estate team has been surprisingly bonus pool this year, which Mr McClymont says “reflects the busy throughout the pandemic, she says. contribution of our staff during a difficult 2020 and consistent “So it was very much swings and roundabouts – with our high performance culture”. Australian staff will enjoy some groups were very busy and others slowed down.” with staff across the globe a special one-off bonus payment of The fact the law firm was going through much the same the local equivalent of £1000 (A$1800). experience as its clients was interesting, Ms Matthews says. There was no formal hiring freeze, no direct impact on “It brought you closer together with your clients because you recruitment of clerks this year or last, and 19 new partners were could see how it is impacting your own business as well.” appointed. The freeze on salary reviews set at the beginning The stresses on clients translated into pressure on fees of the pandemic was reviewed in November last year, and there and pricing models, she acknowledges. “Clients wanted more was the usual salary review at the end of April 2021. certainty around price and were more keen to see estimates or That positive result extended to the Melbourne office he says, fixed prices than they ordinarily would. We worked with clients where there were two internal partner promotions and four to accommodate that because we understood that maintaining lateral hires in Melbourne last year. their business health was critical.” “Obviously the lockdown in Victoria was deeper and longer Despite these pressures, the firm’s business and staffing levels than in other states,” Mr McClymont says. “We placed a particular were largely unimpacted by the pandemic, she says. An annual focus on engagement and health and wellbeing during this time, salary increase was postponed from July to later in the year, “but including organising virtual office afternoon teas, online health we kept all our people and we had no salary reductions. So from and wellbeing seminars, regular check-ins with staff, and a a staffing perspective we have managed very well.” virtual holiday program we organised during the September Given the more extreme lockdown in Melbourne, Ms Matthews school holidays for our staff with young children.” says the firm focused on how to best support its people there. “We Flexible working arrangements were already in train before made sure they remained connected with each other and the rest the lockdown arrived, Mr McClymont says, with a number of of the firm, and that they were looking after their mental health.” initiatives introduced to encourage flexible and remote working But even in Melbourne, the firm has had a strong year, she says, as part of its “Smarter Working” initiative. and productivity stayed high throughout the work-from-home “This meant we were very well placed when lockdown period. “We actually had to make sure our people in Melbourne happened. We have also announced a move to a permanent weren’t working too hard and burning themselves out, because 60/40 framework going forward, meaning that the expectation is the temptation was to work every hour when there wasn’t much that our staff (client needs permitting) will only be in the office else they could do.” around three days a week. We have seen clear evidence over the As workplace restrictions have eased in Melbourne, everyone last 12 months that we have the structures in place to ensure now has the opportunity to go back to the office. But under the that remote working works for us, our clients and our staff.” firm’s Work Smart Plus arrangements, staff can also continue The firm is scheduled to move to its new office at 80 Collins to work from home a couple of days a week. “In all our offices Street, where its fitout will reflect the fact that no more than I think we will see people working in a more flexible way over 80 per cent of staff will be in the office at the same time, the years to come.” Mr McClymont says. That has put the nature of the office workplace into a different light, she acknowledges. “Going forward, what we’ll see is law firms looking to use space in a different way. We may
12 LAW INSTITUTE JOURNAL MAY 2021 news Firms
Arnold Dallas While that has been a godsend for now, Mr McPherson is apprehensive about the possibility that virtual hearings McPherson, could continue indefinitely. “They have their place for things like John McPherson directions hearings or mentions. But there’s an anxiety on the The regions may not have part of regional practitioners that video courts are the thin edge been subject to the same of the wedge. When it comes to the substantive determination of strict stage four restrictions people’s rights, whether it’s civil law or the criminal jurisdiction, as Melbourne, but Arnold lawyers have an instinctive aversion to that being done virtually.” Dallas McPherson principal With regional firms permitted to return to workplaces since lawyer John McPherson says late last year, no one in the office is now working exclusively the pandemic nevertheless from home, Mr McPherson says. But the flexibility that was had a significant effect on introduced last year will remain, he says. the firm’s Bendigo office. “At the end of last year we did an internal survey about what Like their city counterparts, the 20 lawyers in Bendigo could not people thought was worthwhile preserving from this whacky work from the office unless it was impracticable for them not to, year. And people said they were keen to return. But they were he says, “and it was a heck of a challenge making sure we had the also keen to institutionalise a day or two working from home. infrastructure so people could work from home”. Fortunately, the And we’ve been all ears as to that. People proved they could do firm had already been moving towards a digital office and could the work from home and so why should the employer insist on access all their files wherever they might be. “But people were still people turning up just for the heck of it?” under stress and pressure and strain, with concern for family and friends and frustration that plans were unable to be fulfilled.” JT Lawyers, Business took enough of a hit to revenue during the depths Joey Tam of the lockdown to make the firm eligible for JobKeeper for a Even before the lockdown, quarter. That has bounced back since, partly because personal JT Lawyers was all ready injury matters have a long lag time which means the full impact for remote working after of the lockdown on his business may not be felt for some time. principal lawyer Joey Tam Although the firm has not had to put off staff so far, “whatever wanted to ensure she aspirations we may have had of taking on any new staff or could stay connected with new positions were put on the back burner because we had the other seven lawyers enough on our plate in dealing just with the challenges of in her two Bourke Street having sufficient income and work to pay the people that offices while she went on were already here,” he says. maternity leave for a year. But existing matters have kept ticking along, for which he “Then there was the talk of potential shutting down because pays tribute to agencies such as TAC and WorkCover, the panel the pandemic was spreading. So we did a trial run with the solicitors and the courts for their efforts in ensuring that matters gadgets and technology to see if it worked and that was the “didn’t come to a screeching halt. Those institutions were right week right before everything shut down. That meant that when on the front foot using technologies like Zoom and WebEx to it hit,we were all set up and were able to roll with the punches.” facilitate continued case conferences. The courts worked really With staff all successfully linked up to each other and the hard and people came up with some creative solutions to the firm’s servers, the next priority was ensuring the firm’s clients, problems that existed.” many of whom have English as a second language, didn’t feel
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MAY 2021 LAW INSTITUTE JOURNAL 13 news Firms
abandoned. There was some initial hand-holding while staff for areas of law that had been increasing in recent years. helped clients set up the videoconferencing app, Ms Tam says. The rest of the time was spent calling clients and “asking them, “Once we got that happening, the arrangements actually worked ‘how are you feeling at the moment, what do you need from us?’” much better for many of them because they could talk with us Ms Vickers says. “And sometimes we were talking people down and even attend hearings from the security of their own homes.” off the ledge, giving them the confidence that we would find Business did take a bit of a dive early on, with commercial a way to help them and get them what they needed.” transactions and property matters put on hold. With court The business, which currently has 17 lawyers across two hearings put on adjournment, criminal matters also came to offices, has been set up for remote working for years, so a halt. “But there was an increase in family violence and family apart from buying cables and setting up extra monitors, the law matters – and wills and estates increased because everyone technological transition to working from home was relatively was suddenly worried about their future,” Ms Tam says. smooth. It was “the humanity of the situation” that was trickier “But migration was hard hit, and that’s a big part of my and required extra hand-holding, she says. “We had some staff practice, so that was a worry. Although there were other who were home-schooling four children, and others who were problems in migration, with a lot of people having their visas home alone and couldn’t see their family for weeks.” cancelled or needing to have them renewed so that created As Melbourne settled into a new COVID “normal”, the other new lines of work.” half of the law firm’s business – wills and estates and family law JobkKeeper was a lifeline that meant not only did Ms Tam not – kicked back in to supplement the briefly subdued property side have to stand down any staff, but was also able to offer payment of the business. “Because we had those three relatively diversified arrangements to her harder hit clients in the tourism and areas of practice as a business, we could ride it out. So we didn’t hospitality industry. “That gave a boost for the firm to continue have to lay anyone off, we didn’t cut anyone's pay, and we with confidence because (before that) we were a bit scared and didn’t not hire people we said we were going to hire.” morale was a bit lower.” And then, even while Melbourne was still in stage four And then as the second lockdown eased up, business started lockdown, the property market started to roar back into picking up. Residential property has been booming, and life. “It started to get crazy busy and we hired a new senior inquiries regarding commercial property leases are picking up. conveyancer because we could see what was going on with the “Surprisingly, restaurant businesses, which we thought would market, we were getting requests to prepare contracts so that really struggle, have done okay – particularly the ones that were properties could be sold the second we came out of lockdown.” able to convert to takeaway and delivery options.” Bankruptcy Aware that the booming conveyancing business is as much matters are still on the rise, as are family law matters, but a result of an over-hyped property market artificially stimulated she expects migration to slow down significantly for the by low interest rates and stamp duty concessions, Ms Vickers foreseeable future. is not sure things are back to “normal” yet. Business has been so healthy that Ms Tam is looking to hire Even so, the firm is back to full business, with a scheduled another lawyer and is revisiting plans to establish a branch in move to a new bigger office in the next couple of months. Maribyrnong. Another planned office in the Eastern suburbs is “If we’re working to a model where people are working on the backburner. “I'm a bit wary that as soon as I hire someone, sometimes from home and sometimes from the office, then things might quieten down again, so for now I’m being cautious.” the office should be a genuinely collaborative and nice place But presuming business continues as is, she is planning to lift to come to work, so this new office is all that. It’s a lovely place last year’s moratorium on pay rises. “Everyone has been working to come, a lovely place to share ideas, there are quiet zones, there hard and they deserve it.” are shared collaboration zones. It’s a nice place to have drinks on a Friday night. It’s all the things we want.” ■ Nest Legal, Laura Vickers For a law firm that draws half its business from property conveyancing, last year’s lockdown restrictions on on-site auctions and inspections initially put a big dent in Nest Legal’s revenue. But principal lawyer Laura Vickers says the six-week hiatus was “blissful”. “As a conveyancer the only real break you normally ever get is seven days between Christmas and New Year,” she says. Eligible for JobKeeper because of that initial hit, the firm used the unexpected downtime to attend to its precedents and processes, update website content, and create new intake forms
14 LAW INSTITUTE JOURNAL MAY 2021 news Employment ZOOMING INTO A NEW ROLE THE LIJ TALKED TO FOUR LAWYERS WHO HAVE FACED THE CHALLENGE OF STARTING A NEW JOB DURING THE PANDEMIC. BY KARIN DERKLEY
Getting a new job can be a challenge at the best of times but when there’s a global pandemic raging it's doubly so. Many law firms put recruitment on pause during Melbourne’s two main lockdowns, worried about declining revenue and the challenges of supervising new recruits working from home. Even so, some lawyers managed to find a new job just before or during the pandemic, making it necessary to liaise with new colleagues and clients and the courts remotely. We talked to four of them to find out what their experience of getting a new job during a pandemic was like.
Alexandra Gonos, Employsure Looking for a new job in the middle of lockdown, especially a progressive law firm and doesn’t have the normal hierarchy. when you’ve already resigned your previous job, can be a It’s been perfect for me.” nerve-wracking experience, as employment lawyer Alexandra Starting her new job in the first week that up to 25 per cent Gonos found last year. She decided she wanted to specialise of staff were permitted to go back into the office, Ms Gonos in employment law litigation, but found it hard to focus on was able to spend her first three days meeting her buddy and getting a new job while still employed. having her induction. But then it was back to remote working Once she resigned in September, at the height of Victoria’s for the next three months. Stage 4 restrictions, she had the time and mental space to “That was hard, because I was still in learning mode and devote herself to the task. But it was initially a disheartening needing to ask lots of questions and you can’t just turn around experience. “All my interviews were via videoconferencing, and in the office and say, ‘hi, can you help me with this’. But the while that was something I was used to, it had its challenges. firm was quite well set up in terms of working from home And people were saying the market’s not looking for juniors and very supportive when you needed assistance.” because of the restrictions and it’s going to be too hard to Ms Gonos is now back in the office three days a week, supervise you while you’re working from home.” and two days working at home. “That’s a permanent thing, By October, Ms Gonos was starting to worry. “It was super which is great. They’ve worked out that lawyers get the job stressful. I was feeling quite conflicted as to whether I’d made done whether they’re at home or in the office and productivity the right decision.” Then, in November her risk paid off and is still the same, so there’s no need for everyone to be in the she got her dream job as an employment relations associate office at the same time." with employment law company Employsure. “It’s quite ADOBE STOCK
MAY 2021 LAW INSTITUTE JOURNAL 15 news Employment
Ben Watson, Stary Norton Halphen Bridget Coutts, SMR Legal Less than two weeks after Ben Watson started his job at Bridget Coutts considers herself lucky to have started a job Stary Norton Halphen in early February this year, Melbourne as a trainee family lawyer with Shepparton firm SMR Legal went back into a snap five-day lockdown. In his previous in February last year, just before the pandemic hit. But role he had largely been doing victims of crime work that having relocated from Melbourne, her plans to connect with continued throughout the lockdown, but he had seen other her new community were stymied within weeks when the employees affected as their criminal defence work dried whole state went into lockdown. “It was a little bit isolating up almost overnight. “Going into another lockdown was and lonely last year. I didn’t see my family in Melbourne for a bit of a scary thing to have happen in the first couple six months because of the lockdown and the ring of steel.” of weeks of my new job.” While the lower level restrictions in regional areas meant Fortunately, the lockdown wound up quickly and Ms Coutts was able to go back to the office before her Mr Watson now feels more secure in his employment, city colleagues, all her interactions with clients and other but the ongoing pandemic restrictions continue to affect lawyers outside the office have been via videoconferencing how he goes about his job. While he is happy he can come or phone. “Not meeting the client face-to-face for the first into the office most days, he is still missing out on the time makes it more difficult to build that relationship and kind of in-court training junior criminal lawyers usually the rapport that is so important in that initial conference. benefit from. In some cases we haven’t met the clients at all from start to “All matters are being heard online on the WebEx system, finish, and that makes it quite difficult, particularly when so that’s got some drawbacks in terms of training because you might be negotiating and wanting to get a point across.” usually when you start at a new firm you would be shadowing That made it essential to quickly develop skills to ensure a lawyer in court from the back of the court.” Instead the client felt heard even across a screen, she says. “It’s Mr Watson has to learn by overhearing his senior associate really important to allow the clients the opportunity to on an adjacent desk, often attending to his own onscreen express their story (via videoconferencing) and to afford matters at the same time. “But at least being in the office them the opportunity to paint the picture as they would if together you get that osmosis of ideas coming through.” they were attending in person. You have to try to break down The biggest learning curve has been managing meetings those barriers of it being electronic and be as friendly and with clients remotely and ensuring they attend their online personable as possible.” hearings. “Previously clients were told to get to court at 9.30 The virtual hearings that applied equally to regional and they would do that. But it’s not always easy to organise courts mean she has also missed observing the court in them to get onto a WebEx link. It can be difficult to make action. “We’ve missed out a bit on the informal interaction contact. You have to try your best to know who their support of being in amongst it, overhearing barristers, chatting over contacts are and to get a bit more information out of them a coffee, those organic conversations that happen. It’s all than you usually would.” behind closed doors now. So, unless you’re directly involved Then there’s the juggling of court “appearances” in in a matter you miss out on those experiences.” an environment where it is now theoretically possible One plus of the new regime is that there are more checks to represent someone in Mildura at 10am and someone to ensure parties have everything they need before court in Ringwood at 11am. “It’s a plus in that we’re able to practise hearings, “because the court’s time is now so valuable with in these different areas and the access to justice has obviously the virtual hearings that there’s more robust preliminary improved,” he says. “But at the same time, we’re often dealing checks before going before a judge in court”. with [scheduling] clashes and if something goes over time But like many regional lawyers she is concerned about then you have to call on a colleague to step in on your behalf.” the possibility that hearings might remain virtual indefinitely. Mr Watson says that the year so far has been a learning “I can see the positives for people not having to travel, but it’s curve about how to go about the practical side of dealing important for solicitors to interact with counsel and I don’t with clients and court appearances, “while the finer details of think you get that same rapport happening when you’re evidence and procedure and things of that nature have taken working virtually. I’m also not sure clients feel they’re getting a bit of a back seat. But I guess there will eventually be more their money’s worth when they’re only dealing with barristers time for me to learn the nitty gritty aspects of criminal law.” over the phone or via a zoom conference prior to a hearing.”
16 LAW INSTITUTE JOURNAL MAY 2021 news Employment
Georgia Miller, Hargreaves Family Lawyers For family lawyer Georgia Miller the silver lining of lockdown the initial conversation and Georgia getting back to me and was that it gave her time to think. At the time she was working asking, do you want to go ahead with this? It was a life-altering as a family and relationship lawyer at a large law firm, but decision I was making during a life-altering pandemic and freedom from distractions, such as weekend social events and it was good to be able to slow that down. after work networking, meant she had time to slow down and “My biggest concern was about job security and changing reflect on her career. jobs in the middle of a pandemic, including considering “It gave me the chance to turn my attention inward and whether I had the necessary financial resources in case identify what was important about my work, what my goals it didn’t work out. Unfortunately it’s one of those decisions were, and how to achieve those goals.” that you don’t know until you actually take the leap.” She had already met family lawyer Georgia Hargreaves Another plus of the delay was that when she started her through a mutual friend. “I really admired Georgia and her new job, the relaxed restrictions meant Ms Miller could practice, and I thought, what better time to reach out to attend the office in person, although it took two weeks before a principal than in the middle of a lockdown?” she met all her colleagues because staff were coming in The approach paid off, even if, in the nature of the general on a rotation system. slowdown, things took some time to happen. “Georgia was There is no doubt in her mind that moving to Hargreaves upfront and said she couldn’t make any promises because was the right move, she says. “I worked out that I really of the pandemic,” Ms Miller says. But by the end of the year enjoy working in family law, but I wanted to work with the two had made contact again and in January this year she the broader range of clients Georgia sees. I’m really started her new job with Hargreaves Family Lawyers. pleased with the move.” ■ “It was actually good having those months of space between
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MAY 2021 LAW INSTITUTE JOURNAL 17 news Rural
IN THE AFTERMATH OF TRAUMA BY VOLUNTEERING ON THE GROUND AFTER THE BUSHFIRES LAWYER KATHERINE ARGENTINO GAINED INVALUABLE INSIGHT INTO HER EAST GIPPSLAND COMMUNITY.
In late December 2019, I moved my young family from and rebuild has taken its toll. Now, just over 12 months post Melbourne to Bairnsdale in East Gippsland. A week later we bushfires, they finally feel like they are getting back on their feet. were confronted with a bushfire on a scale never seen before. When I met Daniel he looked exhausted. He needed a shower We live in town but could see flames from our house. Huge and clean clothes. He and his mother whom he lived with had plumes of smoke filled the sky. Small surrounding towns were lost everything; their entire home and property was destroyed. being decimated and people were displaced. I wanted to help. He was supported by a friend who had encouraged him to seek I was due to start work at Warren, Graham and Murphy help. He did not think he needed it. We made some inquiries Lawyers (WG&M), a well-established Gippsland firm, in January with his bank and insurance companies. Unfortunately, he was 2020. I registered to volunteer for Disaster Legal Help Victoria uninsured and had to stop work to handle the dire situation he (DLHV) and was rostered to attend the Bushfire Recovery Centre faced. The recovery centre remained open for more than a year in Bairnsdale. WG&M unwaveringly supported me to volunteer as and so whenever Daniel had questions or needed documents much as was needed. witnessed, he felt comfortable dropping in for support. Last The recovery centre was a hive of activity. I had not responded month I was stopped by Daniel in the local supermarket, he to a disaster before so there was a lot to learn. It was obvious looked fresh and happy. He is doing much better. They have from the outset that in the aftermath of a disaster, a client’s habitable accommodation on their property thanks to generous immediate needs are food, clothing and shelter. The last thing donations, government and community support. I wished him on their mind is legal problems. all the best with the ongoing recovery. He gave my four-year-old As the weeks post-disaster go by, legal issues start to arise shopping helper (arguably hinderer) a high five. It was and people turn their minds to matters such as fencing, lost heart-warming. documents and insurance. Some matters can be resolved on the Legal support is a critical component of the response to a spot with general advice, others need to be referred for ongoing disaster such as bushfires. Often, people affected by disaster legal assistance. do not realise that they have legal problems. As lawyers we can Clients A and B attended because they were having a dispute use our skills to support people in crisis to identify legal issues with their neighbour about fencing. They lost fences, sheds and caused by the disaster and work closely with the community property in the bushfire. Their house had been spared, aside from sector to ensure that disaster affected people get the legal help some electrical damage. They made an insurance claim for the they need as part of a holistic approach to disaster recovery. loss and damage and their claim was settled quickly. By volunteering on the ground after the bushfires I gained During my conversation with them, it occurred to me that invaluable insight into the community, I met incredible people the assessment of their insurance claim may be inadequate. and built enduring relationships. I am grateful to each of the I registered their details with Justice Connect and WG&M agreed clients I met who shared their story with me. The community to help them with their fencing and insurance matters pro bono. has endured a traumatic experience; lives and homes were lost, We resolved the fencing dispute informally. We requested a extensive amounts of flora and fauna were destroyed. Recovery review of the insurer’s decision to pay them for repairs and not is a long and hard road. the full replacement of their fire damaged sheds. Last month we The most valuable thing I learned from my volunteering received news that the insurance complaint had been successful; experience with DLHV is that this community is strong and I am they would receive additional funds to rebuild their sheds. They proud to be a part of it. What a privilege it is to be able to live and described the result as a massive relief. The stress of the clean-up work in East Gippsland. ■
18 LAW INSTITUTE JOURNAL MAY 2021 news Opinion
EMERGENCY POWERS NEED SCRUTINY ENSURING ACCOUNTABILITY THROUGH COVID-19 LOCKDOWNS AND CURFEWS IS A HUMAN RIGHTS ISSUE.
have – or should have – accompanied such decision making. There are “after the fact” measures, as illustrated by the judicial review of the administrative actions in Loielo, but there are also structural issues that merit further consideration. In particular, the need for accountability of the decision itself at the time ROSALIND CROUCHER through scrutiny by parliamentary processes. Heavily reduced sitting of parliaments nationwide and short time frames for the introduction of measures have constrained The response to COVID-19 has united – and divided – Australia. scrutiny processes. In this context, the role of parliamentary Adequately managing the response is not only a public health committees has been important – but while parliamentary issue, it is a human rights issue, involving significant incursions on committees provide some form of parliamentary oversight of people’s rights and freedoms – especially freedom of movement. executive action, there are mixed reports on their effectiveness.5 The responses to the pandemic have also been imposed For the most part, governments have openly justified their through decision-making processes that involve significant decisions. Premiers and first ministers have maintained a regimen delegations of power, with limited or no opportunity for of press conferences, often daily, that have assisted in public parliamentary scrutiny. This has implications beyond COVID-19. acceptance of the limits to rights and freedoms during COVID-19. In December 2020, an interim report by the Senate Standing Moreover, as Dr Janina Boughey observed in the Alternative Law Committee for the Scrutiny of Delegated Legislation found: Journal, “Limits to government accountability must not become “The significant volume of delegated legislation made by permanent features of the way governments make rules. We should the executive, and the frequent exemption of this delegated retain the good features of the governments’ approach to this legislation from parliamentary oversight, pose serious challenges emergency – like their willingness to explain their decisions and 1 to Parliament’s constitutionally recognised law-making role.” answer media questions. But we should be careful to ensure that 6 Curfews and lockdowns ordinary accountability measures resume as quickly as possible”. Such scrutiny aids not only in ensuring compliance with One example of executive action is the curfew imposed on greater restrictions, but also in maintaining trust in our governments Melbourne in the “stay at home” directions issued under the Public and our parliaments, and those who are delegated to act on our Health and Wellbeing Act 2008 on 13 September 2020. The lawfulness behalf. This trust has been the foundation of our democratic of the directions was tested in Loielo v Giles (Loielo),2 as a matter of structure since 1688. administrative law, in an action by restaurant owner Michelle Loielo. It would also provide a safeguard that when we plan for In his decision of 2 November 2020, to uphold the decision recovery from this crisis, no one gets left behind. of Associate Professor Michelle Giles (the person to whom the The checks and balances that ordinarily exist are integral curfew decision was ultimately delegated), Ginnane J showed to our democracy. Australians have been, and continue to how such administrative decisions can be challenged, both be, exposed to potentially unnecessary restrictions of their as a matter of judicial review and pursuant to the Victorian rights and freedoms, because of the lack of transparency and Charter of Human Rights. In passing observations, Ginnane J accountability that surround emergency measures. also questioned the scope of authority weighing on the relevant We need to embed a better human rights scrutiny process person, which opens up a further issue about accountability. into all emergency responses, to ensure that any intrusion on While Associate Professor Giles was an authorised officer our rights is always fully justified, and the debate is had at the within the relevant legislation, Ginnane J suggested there time the restrictions are considered – not afterwards. n can be “legitimate debate about whether a public servant in Giles’ position, who is not the Minister, the Department Emeritus Professor Rosalind Croucher AM is Australian Human Rights Commission President. Secretary or the Chief Health Officer, should be exercising an emergency power that may close down much of the state”.3 1. Senate Standing Committee for the Scrutiny of Delegated Legislation released an interim He recommended that “Parliament may wish to reconsider report in its inquiry into the exemption of delegated legislation from parliamentary who should exercise these emergency powers”. oversight, 7 December 2020, xiii. The Committee noted that, in 2019, 20 per cent of the 1675 laws made by the executive were exempt from disallowance. Executive decision making 2.  VSC 722. 3. Note 2 above, at . In response to the pandemic, parliaments nationwide 4. Sarah Moulds, “Scrutinising COVID-19 laws: An early glimpse into the scrutiny work have transferred extraordinarily wide powers to executive of federal parliamentary committees” (2020) 45(3) Alternative Law Journal 180, 181. governments and agencies. As Dr Sarah Moulds observed in the 5. Moulds, 184, referring, eg, to the contributing authors to Julie Debeljak and Laura Alternative Law Journal, laws “were passed within days, sometimes Grenfell (eds), Law Making and Human Rights, 2020. hours, with limited safeguards”.4 6. Janina Boughey, “Executive power in emergencies: Where is the accountability?” This prompts consideration of the checks and balances that 2020 45(3) Alternative Law Journal 168, 174.
MAY 2021 LAW INSTITUTE JOURNAL 19 news Obituary Brian Patrick McCarthy 19 AUGUST 1929 – 3 MARCH 2021 LIV PRESIDENT 1976-1977
Brian McCarthy was born on 19 August 1929. Two months the profession – reform was required if it was to continue later, the stockmarket had an unprecedented collapse, to operate and serve the people as it was intended to. with millions of people across the globe seeing their life In 1975 a group of young lawyers referred to as the savings disappear as the Great Depression began. “Young Turks” – including Brian, John Cain (later Victorian His early days began in a small, humble home in working Premier), David Jones, Bernard Teague and John Richards class Footscray. His father Dr Kevin McCarthy ran a GP – were making their mark in the Council, seeking to bring practice from the family home. Schooling started at St Kevins about necessary change. in 1937. Shortly after the global Infantile (polio) Epidemic An interesting article in the LIJ notes that some outbreak erupted, Brian and his brothers were relocated to of the elder statesmen of the LIV – Sir Edward Cohen, Emerald for safety, separated from their parents for a great Tom Molomby and Hartwell Lander – agreed that reform part of their upbringing. Their father Kevin contacted the was necessary and rather than opposing the ideals of the newly formed school of Kostka Hall to book the boys into “Young Turks”, added their voices of experience and acted the boarding school. as mentors to assist them. He completed his final years at Xavier college senior There were a few notable events during Brian’s time school, continuing to board. He loved many aspects of as LIV president and senior partner of Rennick & Gaynor. boarding school – the discipline, structure and routine • Sir John Kerr was invited to attend the LIV annual dinner formed the man we knew. And it was at Xavier that he at Leonda – unfortunately the scheduled event occurred formed treasured lifelong friendships. There are numerous only days after Gough Whitlam was removed as prime school reports to verify what a prudent student he was, minister. The guests were attacked by more than 1000 achieving excellent results. anti-Kerr protestors throwing eggs and flour at the cars He commenced his law degree at Melbourne University • The Beach report investigating the behaviour of police, in 1947. On completion, he did his articles with Galbally lawyers and corruption – he was quoted on the front & O’Bryan. Post war, things were tough in commercial page of the Herald Sun, telling the Victoria Police force to practice. He moved on to begin his legal career as a “Put up or Shut up”. He was not going to have the legal solicitor with Rennick & Gaynor, where he became one of profession dragged through the mud when he and his the managing partners. colleagues held it in the highest regard He was married to Kathleen Lynch in the Xavier Chapel • In 1984 the landmark settlement of $2.3 million over in January 1956. Five children Mary, John, Kate, Dominic the light plane crash of a Piper Cherokee. This case was and Sarah arrived in quick succession and there are now jointly managed with an American law firm, with the case 13 grandchildren and 11 great grandchildren. litigated in the US. It was the biggest financial settlement In 1968 he was elected to the Council of the LIV by an insurance company to families who lost their loved and was president from 1976 to 1977. In 1988 he was ones – and Brian McCarthy was key to making this happen. appointed judge to the Accident Compensation Tribunal. Another career highlight was his involvement in Following the disbandment of the tribunal by the Kennett litigating numerous cases for the families who lost their government in 1992 he was appointed president of VCAT fathers and sons (mostly migrants) in the West Gate where he served until 1998 when he took up a consultancy Bridge disaster. role for TAC Law, serving as mentor and adviser to assist Brian McCarthy’s legal career spanned more than in the development of the legal officers to litigate in the 50 years. He made a significant contribution to the VCAT jurisdiction. This role gave him a great platform to profession and is fondly remembered by his colleagues continue his professional life and commitment to the legal for his services. On a final note, he was proud that Rennick fraternity which he loved. One of his key concerns was to & Gaynor is still operating today, and we hope to see ensure that the average family could not only afford but it continue well into the future. n also receive a high level of legal representation. This obituary is an edited version of the eulogy given by Brian McCarthy’s His legal career during the late 1960s and ’70s flourished son Dominic McCarthy and daughter Sarah Mort. during what was described as a fairly turbulent time in
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A shot in the arm
A COVID-19 VACCINE HAS ARRIVED BUT THE PANDEMIC'S TWISTS AND TURNS ARE NOT OVER YET. IT'S TIME TO START THINKING ABOUT WHAT THE VACCINE ROLLOUT MEANS FOR A LEGAL PRACTICE’S WORK HEALTH AND SAFETY OBLIGATIONS. BY SUSANNA RITCHIE AND MARIAH KHOURY ADOBE STOCK ADOBE
22 LAW INSTITUTE JOURNAL MAY 2021 workplace law special edition Occupational health and safety
As the rollout of the COVID-19 vaccine workplace may not be reasonably practicable at commences, many business leaders (including this stage. It also starts to look less reasonably SNAPSHOT legal practitioners) are turning their minds to practicable where there will be a low risk of what this means for them and their workplace. • It is unlikely businesses will infection because, for example, your workplace Everyone wants to get back to normal as need to mandate the vaccine has (or can accommodate) remote working, quickly as possible, and the vaccine will play in workplaces. involves limited client contact and/or is located an important role in that. This includes getting • Some clients may require you away from community transmission. to be vaccinated to attend back to the office. No matter the situation you In light of this, it is important to: their workplace. are in, you'll want to be trumpeting your health • undertake regular risk assessments of your • Employers should not assume and safety credentials. specific situation to determine what your they can take disciplinary Ordinarily, we would expect government action if an employee refuses COVID-19 vaccination policy will be – look to take control and mandate one consistent to get vaccinated. at the people in your team and the people rule for all employers. However, at the time you work with (including assessing the of writing, the federal government has made control measures they have in place), it clear it will not be mandating the COVID-19 vaccine for regularly review public health and safety advice, and employees. The Victorian government has not made any moves evaluate the control measures in place to stop the spread of towards mandating the vaccine for Victorian employees either.1 COVID-19 in your workplace So, without a clear government directive, how far can and • continue to have open and honest conversations with your should you go in ensuring your people get vaccinated? staff about what needs to be done to prevent the transmission We give you the top three things you need to know before of COVID-19 in your workplace, including continuing to the vaccine arrives in your workplace. For further general practice social distancing and good hygiene as well as information about COVID-19 vaccinations and the workplace, not attending work when sick. check out the Fair Work Ombudsman’s website.2 There is nothing to stop an employer supporting their staff to become vaccinated even if they do not require it. This could 1. You don’t need to mandate the vaccine in your include proactively encouraging staff to get the vaccine and workplace unless it is 'reasonably practicable' making it easy for them to get the injection by, for example, We know that under the Occupational Health and Safety Act 2004 allowing them to get the injection during work hours. (Vic) and equivalent health and safety legislation across Australia Employees should also be reminded of their obligation not (eg, the Work Health and Safety Act 2011 (Cth)), employers are to endanger others in the workplace by, for example, coming required to ensure the health and safety of the people in their to work when they feel ill or failing to follow your workplace’s 3 workplace “so far as is reasonably practicable”. hygiene policies and procedures.5 This means your duty as an employer to introduce control measures directed at eliminating, or at the very least minimising, 2. Your clients may require the COVID-19 vaccine the risk of exposure to COVID-19 in your workplace continues, even if you don’t notwithstanding the introduction of the COVID-19 vaccine. There are directions in place which require that specified persons This includes considering whether or not to introduce employed in or engaged by certain high-risk workplaces such as a vaccination policy in your workplace. hospitals and healthcare providers must be vaccinated or prove What this looks like really depends on the industries you immunity to diseases such as influenza, measles, hepatitis B and work in and who works with you. The key question to ask whooping cough. in determining whether to mandate COVID-19 vaccinations For example, in Victoria, following the Health Services in your workplace is: “is it reasonably practicable?” Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020, the Secretary of the Department of Health and Human Is mandating COVID-19 vaccinations in your workplace Services may direct that a public or denominational hospital, 'reasonably practicable'? health service establishments and the ambulance service Mandating COVID-19 vaccinations for all employees may seem require the people they have “employed or engaged” to be like a practical measure to help eliminate or minimise the risk vaccinated against specified diseases. Any action a healthcare of COVID-19 exposure in your workplace. This is especially so employer takes to comply with such a direction will not amount if you have staff who are particularly vulnerable to COVID-19 to discrimination based on political and/or religious belief or you work with clients who are vulnerable to COVID-19 or activity for the purposes of the Equal Opportunity Act 2010. or have an elevated risk of being infected. Given how high-risk healthcare workplaces are, we can expect However, currently: that governments will be keeping a close eye on healthcare • public health experts such as the Australian Health providers and may consider issuing public health orders Protection Principal Committee have not recommended mandating the COVID-19 vaccine for them soon. We can also 4 a vaccine be made mandatory in any industry expect that governments will be keeping a close eye on other • the vaccine is only being rolled out in stages and high-risk industries involving people who are particularly as such will not be available to all staff just yet vulnerable to COVID-19 or potentially “super spreaders” of the • some employees may have genuine medical or other disease – for example, aged care and early childhood education. concerns about getting vaccinated. Therefore, mandating COVID-19 vaccinations in your
MAY 2021 LAW INSTITUTE JOURNAL 23 workplace law special edition Occupational health and safety
States and territories have individual responsibility for What do the cases say? workplace health and safety and, as such, there may not be a one-size-fits-all approach. It is important to understand each There are no Australian cases which consider the lawfulness of your client’s vaccination policies and procedures before and reasonableness of a direction to get a COVID-19 vaccine entering their workplace. You may find that you and your team as it is only just being rolled out. However, there are two recent will be required to be vaccinated against COVID-19 in order to be cases involving vaccination policies in the workplace that able to enter these workplaces. You may also be asked to assist we can draw on which both comment on what is lawful and them in developing their vaccination policies and procedures. reasonable. In any event, it would be worthwhile considering what you Arnold v Goodstart Early Learning Limited T/A Goodstart will do if you and your team are required to be vaccinated, Early Learning  FWC 6093 and introduce your own vaccination policy if you haven’t This case involved a childcare centre that implemented a free already got one. mandatory flu vaccination program yearly for all employees. 3. Don’t assume that disciplinary action is Its policy included an exemption for circumstances where an option if someone refuses to be vaccinated employees had sufficient medical evidence to demonstrate In the event you introduce a mandatory COVID-19 vaccination that the vaccine would adversely impact their health policy in your workplace, remember it must also be lawful and or safety in some way. reasonable as a matter of law.6 The applicant was an employee who refused to get It is generally understood that an employer may only vaccinated but provided no medical grounds to support the direct employees to do things that are lawful and reasonable. refusal. On this basis, Goodstart terminated the employee’s The refusal of an employee to comply with an unlawful or employment. The employee made an unfair dismissal claim unreasonable direction will not justify the employer taking in the Fair Work Commission. disciplinary action (this includes termination).7 The application was dismissed on the basis that it was filed In the absence of something that authorises you to mandate out of time. However, Deputy President Asbury said at : the COVID-19 vaccination, enforcing a blanket rule for “While I do not go so far as to say that the Applicant’s case vaccination may be dangerous given your competing rights and lacks merit, it is my view that it is at least equally arguable responsibilities as an employer. It is not like requiring a driver’s that the Respondent’s policy requiring mandatory vaccination licence for an employee who drives as part of their work. There is lawful and reasonable in the context of its operations which is a legal requirement that all drivers have a licence in order principally involve the care of children, including children to operate a vehicle on public roads. There is currently no legal who are too young to be vaccinated or unable to be vaccinated requirement that law practice employees get vaccinated. for a valid health reason. Prima facie the Respondent’s policy You need to consider your anti-discrimination obligations is necessary to ensure that it meets its duty of care with as well as your risks of adverse action or unlawful termination respect to the children in its care, while balancing the needs before taking any action against current and prospective of its employees who may have reasonable grounds to refuse employees. Individuals or groups of employees or job to be vaccinated involving the circumstances of their health candidates may have genuine medical or other reasons why and/or medical conditions. It is also equally arguable that the they will not get vaccinated that could make it unlawful to Applicant has unreasonably refused to comply with a lawful require they be vaccinated. and reasonable direction which is necessary for her to comply For many lawyers, it is going to be hard to argue it is an with the inherent requirements of her position, which involves inherent requirement of a role to be vaccinated if you do not the provision of care to young children and infants”. directly work in a high-risk industry. However, if your work In making these remarks, Deputy President Asbury clearly involves a staff member going into the workplace of a client considered that the type of work being undertaken as well as in a high-risk industry (eg, on secondment or interviewing the reason for an employee’s objection to getting vaccinated witnesses), your requirement that the employee be vaccinated were relevant to the determination of whether a vaccination may be more reasonable than for a staff member who is still direction is lawful and reasonable. working from home and is isolated from the rest of their Glover v Ozcare  FWC 231 workplace. This case involved an aged care and respite organisation. This means there is going to have to be some nuance and Ozcare placed an employee on indefinite paid leave after the flexibility in all vaccination policies and exemptions considered employee’s refusal to get a mandatory flu shot. Interestingly, the in some circumstances. employee had refused to be vaccinated over the 10 years of her Other interesting and challenging questions may arise for employment on the basis that she’d been told she had a history you as an employer as your team moves back into the office. of suffering anaphylaxis from a flu vaccine as a child overseas. Staff may refuse to come to the office unless everyone else However, following a direction from the Queensland Chief is vaccinated. Again, it will be important to consider the Health Officer, Ozcare directed the employee to be vaccinated. lawfulness and reasonableness of any directions you may Ozcare raised a jurisdictional objection to the application. make, and it will depend on individual circumstances. In dismissing the jurisdictional objection, Commissioner Hunt confirmed that whether a vaccination direction was lawful and reasonable in the circumstances requires a careful
24 LAW INSTITUTE JOURNAL MAY 2021 workplace law special edition Occupational health and safety
consideration of each circumstance of the person's role and Where to next? the workplace in which they work, stating at  to : “In my view, each circumstance of the person’s role Hopefully, the COVID-19 vaccine will do everything we need is important to consider, and the workplace in which they it to and more in the fight against this pandemic. Until then, work in determining whether an employer’s decision to make legal practices will need to keep regularly assessing the situation, a vaccination an inherent requirement of the role is a lawful and adjusting their work health and safety control measures reasonable direction. Refusal of such may result in termination and continuing to have open communication with staff. This of employment, regardless of the employee’s reason, whether may or may not involve requiring staff to have the COVID-19 medical, or based on religious grounds, or simply the person vaccination. But if it does, we know the law will require ■ being a conscientious objector. a nuanced and careful approach. “It is not inconceivable that come November 2021, employers Susanna Ritchie is managing lawyer at workplace and industrial relations specialist of men engaged to play the role of Santa Claus in shopping firm, Launch Legal. She leads the strategic direction of the firm, promoting innovation and centres, having photos taken around young children, may be improved client experiences. required by their employer to be vaccinated at least against Mariah Khoury is a lawyer at Launch Legal and has a range of experience working on influenza, and if a vaccination for COVID-19 is available, that too. workplace and industrial relations matters. The employer in those scenarios, where they are not mandated 1. https://www.afr.com/politics/federal/ to provide social distancing, may decide at their election aged-care-workers-won-t-be-forced-to-get-covid-19-vaccination-20210217-p573dg. that vaccinations of their employees are now an inherent 2. https://coronavirus.fairwork.gov.au/coronavirus-and-australian- requirement of the job. It may be that a court or tribunal is workplace-laws/health-and-safety-in-the-workplace-during-coronavirus/ tasked with determining whether the employer’s direction is covid-19-vaccinations-and-the-workplace. lawful and reasonable, however in the court of public opinion, 3. Occupational Health and Safety Act 2004 (Vic), Part 3. 4. https://www.safeworkaustralia.gov.au/covid-19-information-workplaces/ it may not be an unreasonable requirement. It may, in fact, industry-information/general-industry-information/vaccination. be an expectation of a large proportion of the community”. 5. Occupational Health and Safety Act 2004 (Vic), ss25 and 32. 6. Austal Ships Pty Ltd (unreported, AIRCFB, Ross VP, Drake DP, Dight C, 13 August 1997). 7. Morgan J and Hogan A, March 2020, https://www.lexisnexis.com.au/__data/assets/ pdf_file/0009/320967/Duty-to-comply-with-lawful-and-reasonable-directions-.pdf.
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MAY 2021 LAW INSTITUTE JOURNAL 25 workplace law special edition Legal firms
A look to the future: The year is 2031 . . .
EVER WONDERED WHAT A LAW FIRM WILL LOOK LIKE IN 10 YEARS? CHRIS MOLNAR LOOKS TO THE FUTURE TO INTERVIEW MANAGING PARTNER OF MID-SIZED, FULL-SERVICE FIRM CHAMPION PREMIER & GOODLUCK (CPG) MICHELLE CHAMPION.
Since 2021 CPG has achieved record growth in revenue, staff Why did the pandemic do this? numbers and high rates of employee retention and satisfaction. It stripped us back to the basics. Gone were the long lunches, The LIJ wanted to find out how this was achieved and what the drinks after work, corner offices with a view, interstate and future of the firm looks like. international travel, client entertainment, gym sessions around Your firm has seen record growth over the past 10 work, socialising etc. What was left was the legal work and our years along a number of indicators. CPG is known identification as a firm, often experienced remotely, and all of to be an innovative firm and a desirable place for this had to be sufficiently worthwhile for us to stay together lawyers to work. How did this start? and grow. The pandemic ended the old, not always good, working habits and we wanted new habits that made us value The COVID-19 pandemic was a key catalyst for change – the ourselves, and be valued by others, as lawyers. The pandemic pandemic had a very deep impact on the partners and staff had a very bad effect on many people but it did provide the at the firm, as it had on the community generally. Lockdown, opportunity for significant change. It caused us to pause and isolation, working from home and risks to health and safety led ask ourselves what was important to us individually and also us to ask some questions about the firm. The most important as a firm. question was why? – in particular, why are we here working together as lawyers? The answer to that question identifies, ADOBE STOCK ADOBE beyond the billable hours and the other work we do, why the legal work we do is significant to us and gives us a cause and a means to be focused and engaged.
26 LAW INSTITUTE JOURNAL MAY 2021 workplace law special edition Legal firms
What else was pushing change? What did you do first? The expectations of lawyers as to their working A key initial step was to understand from all parts environment had fundamentally changed, and this was and levels of the firm, both lawyers and non-lawyers, so before the pandemic. The increased proportion of what was important to them. We conducted surveys women in the profession, the push for flexible working and focus groups, but more useful was for each conditions, the #metoo movement and the greater manager and supervisor to sit down and simply listen consciousness in the profession around health risks to each of their reports for as long as it took. This such as bullying, all contributed to a sense that our was time-consuming but it meant that every person firm, like much of the profession, had to do better. participated and had ownership over the process and The answer had to be more than just putting out the outcome. This high level of involvement spread another policy or updating our website with fine words awareness but also developed a degree of consciousness and photos – we were looking for deep, genuine and across the firm that there was an opportunity for sustainable change that came from the bottom and change and that change would happen. went to the top. What themes emerged from these discussions? You mentioned the #metoo movement. Why This was the interesting part. The variety of responses was this important? made us realise that a key strategic part of the firm’s It was clear even in 2021 that despite greater awareness future approach required goals, systems and career in years past of the adverse consequences of sexual paths that could manage this variety. While there were harassment, work still needed to be done in raising common themes around respect, inclusion and safe understanding, identifying harassment and intervening working environments, equally valued was diversity. to stop harassment. Surveys at the time and media For example, there were different views about working reports of harassment in the profession all pointed from home and, moreover, it was recognised these views to a strong need to do more. What was correct for could and would change as staff progressed through dealing with sexual harassment was also true for other their career. Another example was career goals, which adverse behaviour in the workplace such as bullying also change over time – for some being a partner was and discrimination. Power imbalances in the workplace important, for others it was being able to step into exposed staff to adverse behaviour that affected and out of the firm, allowing them to achieve other their health, quite apart from the damage to the firm objectives, whether that be education, travel, other work caused by absenteeism and reduced productivity. Staff or simply spending time with family. Creating the space desired work relationships that valued their views and for that to occur became an important objective of the contributions, treated them with respect and gave them firm. Our extended discussion on what was legal work opportunities to grow and develop. set up the platform for an agreed approach on how we can best optimise service delivery, collaboration among colleagues and workflow on the one hand with work flexibility, including remote work and varied working hours and days, on the other. By answering the question what was legal work first, we were able to approach work flexibility on a shared understanding of what the business and our clients needed.
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MAY 2021 LAW INSTITUTE JOURNAL 27 workplace law special edition Legal firms
How did lawyers answer the why in 'why are we How do you use education to support your here working together as lawyers?' approach? For our firm, in two main ways. First, there were the lawyers We understood immediately that we needed new skills – our who valued above all else collegiality, group dynamics, lawyers need to understand how to communicate with each group creativity and shared work and ownership, all of other effectively, how to delegate, how to consult, how to run which is available through legal work, mentoring and a project team, how to mentor, how to assess performance professional development. However, we needed to find the and how to achieve superior performance. These skills don’t time and the processes to make this happen in an effective come from law school, so we invested time and money to way in circumstances where there was equal pressure to source the right courses and programs. We quickly found work remotely. Second, there were lawyers who valued that new skills and insights immediately gave staff better the difference that their work made to their clients. That understanding on how their behaviour can impact others. difference could be spelt out in various ways – depending Moreover, we understood the importance of education on the client and type of work – but the relationship and in developing a strong career path. We wanted to develop connection with the client, and the sense of purpose was all practitioners so that whether their stay with us was long or important. The recognition and articulation of that short, and we wanted it to be long, they were better difference was important to that sense of practitioners with stronger skills from their purpose. time with us. Why do lawyers want to work What was your approach to at CPG? the health concerns of your I would like to think that in our staff? firm we recognise, celebrate The COVID-19 pandemic and are passionate about challenged our what we do as lawyers – understanding of the not just the billable hours health needs of our – but what we achieve as staff. First, we needed lawyers. Now, that could better knowledge on be a number of things how new external – it could be a unique pressures, including legal insight, a problem lockdown and remote solved in a difficult factual work, impacted on our and legal problem, a staff’s physical and mental successful litigation outcome, health. We already had a successfully managed a strong tradition of using reduction in legal risk, a satisfied a bottom up consultative client or a good outcome from a approach as the foundation of difficult mediation. The common our occupational health and safety theme in these matters is what we risk management framework. Using achieve as lawyers. This is not to say that this foundation, we identified additional other parts of the job, such as administrative tasks, potential hazards, including unsafe home work billable hours or marketing are not important. They are. environments, isolation, lack of mentoring and coaching, But they are also all done in other jobs, other professions and lack of physical exercise and poor diets. We were and in other industries. We needed to recognise what was particularly mindful of the importance of sustaining mental important to us as lawyers. health in difficult and challenging lockdown conditions, particularly where face to face contact was considerably What about the working relationships at CPG? less. Controls were developed to manage these risks. This Working relationships based on a healthy and safe included developing additional programs to educate staff, environment sit at the core of what we do day to day. We particularly supervisors, to have a better understanding of need all staff, lawyers and non-lawyers, to respect each the risks and how they can be managed. A suite of other other and value each other’s contributions. We need to measures was introduced, including health and meditation collaborate closely to achieve solutions in often trying and programs, but the most important was to upskill supervisors difficult circumstances. Adverse behaviour is not okay and in the safe management of their direct reports and how to staff should feel comfortable to raise issues, knowing that recognise mental health problems. These extra capabilities they will be dealt with confidentially and sensitively. have served us well post-COVID-19, and our surveys and focus groups, which track staff wellbeing and work
satisfaction, have shown that we have made very significant STOCK ADOBE improvements over the past 10 years.
28 LAW INSTITUTE JOURNAL MAY 2021 workplace law special edition Legal firms
How was technology used to support your staff with as the primary means of communication for many meetings the changes over the past 10 years? with clients, court appearances and marketing events such The COVID-19 pandemic forced us to rely on technology to as webinars. This created efficiencies for clients and the firm, remain operational. New skills needed to be learned and particularly as travel costs, including travel time, were effectively videoconferencing opened up new opportunities to work, eliminated. However, we still found that complex, lengthy including client meetings, professional development, meetings discussions were best undertaken in person. with colleagues and court appearances. It meant more staff What does the future look like? could be included in work activities regardless of geographic We are very confident in our future. We have laid down the basis considerations, health issues or what other commitments for continued growth and development, particularly with respect they had such as parenting or caregiving. We were mindful, to our staff. Above all else we believe that CPG is a great place though, that collegiality and dynamics did require face to face for our staff to work. Technology has been and will continue to activities, and we were careful to balance both online and be an enabler but it doesn’t replace the people part of the legal in-person activities. We were aware that with increasingly more profession. ■ sophisticated IT software programs, it was important to source programs that had the needs of the end user in mind so as to Chris Molnar is an LIV accredited specialist in workplace relations and a partner at Kennedys. reduce administrative time for lawyers inputting information – time that would otherwise be better spent on legal matters. The objective was to have integrated, intuitive and simple marketing, word, finance, time recording and database programs and tools that could be easily operated by the least capable IT user. The efficiency gains from this approach were very significant. The COVID-19 pandemic brought forward videoconferencing usage about five years. We quickly commenced using platforms such as Webex and Zoom, and the use of these platforms endured after the crisis was over. Videoconferencing was adopted
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MAY 2021 LAW INSTITUTE JOURNAL 29 workplace law special edition Employment status
Employee or contractor – the eternal conundrum
RECENT DECISIONS IN STATE AND FEDERAL COURTS AS WELL AS THE FAIR WORK COMMISSION REVEAL THE CHALLENGES THAT CAN ARISE IN MODERN WORKING ARRANGEMENTS SUCH AS LABOUR HIRE, CASUAL EMPLOYMENT AND WORKERS IN THE 'GIG ECONOMY'. BY MARC FELMAN AND TESSA DUTHIE ADOBE STOCK ADOBE
30 LAW INSTITUTE JOURNAL MAY 2021 workplace law special edition Employment status
Why does the as the codification of worker status in the FW Act and SNAPSHOT classification matter? alignment of that definition Courts and tribunals have • While the multifactorial across applicable statute books.5 long grappled with the task test for determining However, as responsibility for of characterising workers into whether a worker is an workplace laws rests with the employee or contractor one of two binary categories: federal government and the is well established, employees or contractors.1 recently introduced Fair Work the application of Significant legal consequences that test continues Amendment (Supporting flow from the classification to invite difficulty. Australia's Jobs and Economic 6 of working relationships, with • Recent decisions Recovery) Bill does not address special protections afforded to reveal the challenges this issue, for now the common employees that are not provided that can arise when law test remains. to independent contractors. the multifactorial Employees are entitled to the test is applied to less The test traditional modes benefits of minimum wages, The test used by the courts of working. overtime and penalty rates, and the Fair Work Commission leave entitlements (eg, sick, • There is no one size fits all approach in assessing whether an annual or parental leave), to classification individual is an employee redundancy and termination of workers, with the or independent contractor pay, which are conferred by importance of each is well established and may, at the Fair Work Act 2009 (Cth) indicia depending on a general level, be distilled into (FW Act), state legislation and the circumstances the following principles: industrial instruments such as of each case. • the test is multifactorial modern awards. Independent and requires consideration contractors, on the other hand, of various indicia (considered do not enjoy these entitlements and their below) and an evaluation of the totality rights and obligations are instead determined of relationship between the parties. This by private contract. Many employees are also requires regard to be had to the terms of the protected from the statutory unfair dismissal contract between the parties and the various 2 scheme, whereas independent contractors are features and work practices attendant largely confined to contractual remedies for to the relationship7 any alleged wrongful termination. Taxation, • the test is not a mechanical “box ticking” superannuation and WorkCover implications exercise, but rather a matter of standing and responsibilities also differ between back and “obtaining the overall picture 3 employees and independent contractors. from the accumulation of detail”.8 No one indicia should be given decisive weight and More important now the significance of each factor will vary than ever? depending on the circumstances of the case9 While the complexities associated with the • the distinction between an employee and employee/contractor distinction are not new, a contractor is rooted fundamentally in the the exercise in characterisation has perhaps difference between a person who serves his never been more relevant or difficult than it employer in the employer’s business and is now, with the increased prevalence of less a person who carries on a trade or business 10 traditional, modern working arrangements of his own. such as labour hire, casual employment and While these principles are not particularly the rise of the gig economy. As Lee J recently contentious, it is their application that observed in CFMMEU v Personnel Contracting Pty frequently invites difficulty. Some of the Ltd “as this enquiry, which produces a binary main indicia considered by courts are outcome, is forced to accommodate and discussed below. respond to new and novel labour relationships it might be thought that it’s limitations become The competing indicia more apparent”.4 Control The Report of the Inquiry into the Victorian While no longer the “sole criterion” it once On-Demand Workforce (commissioned by was,11 the extent to which control is exercised the Victorian government) made a number over a worker by the principal is an important of recommendations for legislative reform consideration in assessing the nature of the in a bid to address these limitations, such relationship between two parties.12 Control
MAY 2021 LAW INSTITUTE JOURNAL 31 workplace law special edition Employment status
extends not just to the actual exercise of control but also the with the question of control and whether the worker is conducting right to exercise control13 and is, therefore, no longer confined their own business, as an absence of a requirement for exclusive to strict notions of day to day supervision and direction. Rather, service may be reflective of the level of independence enjoyed control “in its legal sense refers to the identification of a right by the worker over their own work affairs.27 deriving from the employer which subordinates the employee Taxation in a position of service to the employer”.14 However, as the Supreme Court of Appeal in Eastern Van Many contracts purporting to engage contractors require Services Pty Ltd v Victorian WorkCover Authority (Eastern Van)15 the worker to be responsible for paying their own tax on the made clear, “although a measure of control is the hallmark income received from the principal. Such an obligation points of an employment relationship it does not follow that principals to independent contractor status. However, the weight to be are not able to maintain control over independent contractors given to the taxation affairs of parties is another area of some 28 without the contractual relationship becoming one of controversy. In ACE Insurance Ltd v Trifunovskni Buchanan employment”.16 Further, in modern employment relationships J considered that less weight should be given to taxation control may be less significant, or reflected in different ways.17 arrangements as, like contractual provisions, they may simply For example, in a labour hire arrangement the employer may be reflective of the views of one or more of the parties on the retain little practical control over the worker day to day and relationship rather than informative as to its actual status of 29 30 control may therefore assume less significance in the overall the relationship. However, in Tattsbett Limited v Morrow Jessup assessment of the relationship.18 J gave taxation arrangements more weight, stating that “if the parties to the contract have sought to equip their regulatory Contractual terms and taxation obligations on a particular basis and there is no Many contracts between a putative principal and contractor contrivance in them doing so, then there is no good reason to contain an express term to the effect that the contract does not treat those matters as no more than a reflection of self-interest create a relationship of employment and that the relationship or convenience”. In Eastern Van the latter approach was endorsed is one of principal and contractor.19 with the observation made that “there is little reason to downplay There are conflicting judicial views on the importance of how the parties to the contract have acted and how they have these contractual provisions. Some decisions have considered treated the relationship in regulatory or revenue contexts”.31 such contractual terms as not very relevant, particularly where Conducting a business there is disparity in contractual bargaining power between the parties.20 However, other decisions have suggested that While the question of whether a worker is working in their own contractual terms can cast light on the truth of the situation, business or the business of another is not of itself decisive, it is and should not be “informed by undue scepticism”, particularly nonetheless an important factor which can helpfully inform the where there is no suggestion of dissimulation.21 Indeed, in analysis of the working relationship. The weight to be given to circumstances where the competing indicia are evenly balanced, whether the worker is conducting their own business is “to be the parties own understanding of the relationship, expressed assessed in light of the whole picture and will, of course, vary 32 in part via the contract, can be of considerable importance.22 on a case by case basis”. Like the assessment of whether a worker is a contractor Personal service: the ability to delegate or employee, determining whether a person runs their own A contract of employment is, at its essence, a work/wages business requires “an evaluative assessment of a range of bargain where “the irreducible minimum of mutual obligation relevant facts”. These factors include whether a worker is able to necessary to create such a contract is an obligation on the one generate goodwill from their work, whether the worker has their side to personally perform the work or services, and on the own fixed place of work separate from the principal, or whether other side to pay for such work or services”.23 Personal service is, the worker has their own terms of trade and stationery.33 therefore, indicative of an employment relationship and the right Leave to delegate work will point against an employment relationship.24 An ability to delegate may be considered a particularly important Finally, an absence of leave entitlements may point to 34 factor if it is indicative of a principal’s intention to secure the a contractor status. However, limited weight may be attributed services of a contractor more broadly, rather than the services to leave arrangements as, like contractual terms, they could of a particular individual.25 be said to simply reflect the intention of the dominant party. However, in Jensen v Cultural Infusion (Int) Pty Ltd Wheelahan J Further, leave arrangements assume even less relevance when 35 noted that “the inverse situation does not carry equal force. That assessing the contractor/casual employee distinction. is, the fact a worker cannot delegate the performance of work is not necessarily a strong indicator that the worker is not an Conclusion independent contractor”.26 The application of the multifactorial test continues to be an area of uncertainty with no one size fits all approach. However, as the Exclusive service distinction between employees and contractors is “too deeply A lack of exclusive service, that is where an individual is not rooted to be pulled out”,36 practitioners and courts must continue required to provide exclusive service to the principal and is free to grapple with the challenge of applying the multifactorial to accept work from others, including competitors, points to test in various contexts, and more frequently, to less traditional independent contractor status. The exclusivity indicia may overlap modes of working. ■
32 LAW INSTITUTE JOURNAL MAY 2021 workplace law special edition Employment status
Marc Felman is a barrister at the Victorian Bar, specialising in employment and industrial 15.  VSCA 154 at . law. He appeared as counsel in Eastern Van and Personnel, and is currently acting for 16. Note 15 above, at . Deliveroo in various employee/contractor characterisation disputes. 17. Note 15 above, at . 18. Note 16 above. Tessa Duthie is a barrister at the Victorian Bar, specialising in employment and industrial 19. See eg, Jamsek at -. law. She is reading with Marc Felman. 20. See eg, Personnel at . 1. See eg, CFMMEU v Personnel Contracting Pty Ltd  FCAFC 122 at  Lee J. 21. Note 15 above, at . 2. FW Act, Part 3-2. 22. See eg, Note 15 above, at - and Jensen at . 3. Taxation, superannuation and WorkCover legislation also extend statutory definitions 23. See Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 465. of “workers” beyond that of a common law, which go beyond the scope of this article. 24. See eg, Jamsek at . 4. Note 1 above. 25. Note 15 above, at . 5. Inquiry into the Victorian On-Demand Workforce (Final Report, June 2020), 189, 193-194. 26. Jensen at . 6. Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill (Cth). 27. See eg, Howard at . 7. See eg, Gupta v Portier Pacific Pty Ltd  FWCFB 1698 at , Hollis v Vabu Pty Ltd 28. (2013) 209 FCR 146 at  (Ace Insurance). (2001) 207 CLR 21 at , Personnel at - and , Howard v Merdaval Pty Ltd 29. Note 30 above.  FCA 43 at -. 30. (2015) 233 FCR 46. 8. See Gupta at , Personnel at - and , Jamsek v ZG Operations Australia Pty Ltd 31. Note 15 above, at .  FCAFC at  and Jensen v Cultural Infusion (Int) Pty Ltd  FCA 358 at . 32. Personnel at . 9. Personnel at . 33. Jensen at  and On Call Interpreters at -. 10. See eg, Personnel at  and -, Tattsbet Limited v Morrow (2015) 233 FCR 34. See eg, Howard at . 46 at , Hollis at , Jamsek at - and  and Jensen at - and . 35. See eg, Jensen at  and . 11. See eg, Personnel at  and Howard at . 36. Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at 173 . 12. See eg, Hollis at  and , Merdaval at  and , Eastern Van at . 13. See eg, Personnel at  and Gupta at . 14. Personnel at .
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MAY 2021 LAW INSTITUTE JOURNAL 33 workplace law special edition Wages
Wage theft: State and federal tension
THERE ARE QUESTIONS ABOUT THE CONSTITUTIONAL VALIDITY OF THE WAGE THEFT ACT AND CONCERNS EMPLOYERS COULD BE SUBJECT TO INVESTIGATIONS FROM WAGE INSPECTORATE VICTORIA AND THE FAIR WORK OMBUDSMAN FOR THE SAME CIRCUMSTANCES. BY NADIA STOJANOVA ADOBE STOCK ADOBE
34 LAW INSTITUTE JOURNAL MAY 2021 workplace law special edition Wages
The Wage Theft Act 2020 (Vic) (Wage Theft Act) The Wage Theft Act was the first law in Australia to criminalise SNAPSHOT deliberate underpayment of workers. It was not There are three main offences under the Wage • The Wage Theft the last and there may be others to follow in Theft Act in ss6-8: Act was the first the future. There are, however, concerns about • an employer or an officer of the employer law in Australia to a potential constitutional challenge between dishonestly withheld whole or part of an criminalise deliberate provisions in the Wage Theft Act and the Fair entitlement owed to an employee underpayment of Work Act 2009 (Cth) (FW Act). There will be • an employer or an officer of the employer workers. tension for employers who may be investigated falsified or authorised or permitted another to • There are and pursued by Wage Inspectorate Victoria falsify an employee entitlement record with concerns about a view to dishonestly obtaining a financial the constitutional and the Fair Work Ombudsman for the same advantage validity of the Wage alleged underpayment or set of circumstances. • an employer or officer of an employer Theft Act and the Among other things, such tension may result impact that it will in a chilling effect on cooperation between failed to keep, or authorised or permitted have on employers employers and the Fair Work Ombudsman. another person to fail to keep, an employee who may experience entitlement record with a view to dishonestly investigations from Wage theft law in Australia obtaining a financial advantage. Wage Inspectorate Potential penalties under the statute include There have been several developments on wage Victoria and the Fair individual fines of up to $198,264 and/or theft law in Australia. In Victoria, the Wage Work Ombudsman imprisonment of up to 10 years and/or company Theft Act was passed on 16 June 2020 and will for the same alleged fines of up to $991,320. underpayment(s). come into operation on 1 July 2021 at the latest. The Wage Theft Act establishes the statutory • The continued Soon after Victoria, Queensland passed the authority of Wage Inspectorate Victoria. Among existence of the Criminal Code and Other Legislation (Wage Theft) other things, Wage Inspectorate Victoria will Wage Theft Act Amendment Act 2020 (Qld) which amended the have the authority to conduct investigations depends on its ability Queensland Criminal Code to change the s391 to weather these and bring criminal proceedings. definition of “stealing”. Among other things, constitutional and the definition of stealing now incorporates a regulatory concerns. Current constitutional failure to pay an employee an amount payable to them in relation to the performance of concerns work. The Western Australian Industrial The introduction of the Wage Theft Act has raised Relations Legislation Amendment Bill 2020 was concerns about the constitutional validity introduced in response to the 2019 Inquiry into of the statute. Section 109 of the Australian Wage Theft in Western Australia. Constitution provides that “[w]hen a law In the Australian Capital Territory, the of a State is inconsistent with a law of the Magistrates Court Act 1930 (ACT) was amended to Commonwealth, the latter shall prevail, and the confer jurisdiction on the Magistrates Court (as former shall, to the extent of the inconsistency, an eligible state and territory court) in relation be invalid”. to the contravention of a civil remedy provision For brevity’s sake, a comprehensive statement and related matters under s539 of the FW Act of the potential constitutional issues with the and reg 4.01A of the Fair Work Regulations 2009 Wage Theft Act is not possible here. However, (Cth). This may capture relevant wage theft or at a high level it appears as if the FW Act underpayment claims. The Legislative Council demonstrates an intention to “cover the field” of South Australia formed a Select Committee on the topic of “wage theft”. If so, this may be on Wage Theft which released an interim report the most likely basis for potential inconsistency on 21 July 2020. This interim report noted the between the Wage Theft Act and the FW Act high volume of submissions that were calling for the purposes of s109 of the Australian for the criminalisation of wage theft. Constitution. At a federal level, in December 2020 the This may be an example of “indirect federal government introduced the Fair Work inconsistency” between a state and federal Amendment (Supporting Australia’s Jobs and law. The High Court’s statement of principle in Economic Recovery) Bill 2021 into the House of relation to this kind of indirect inconsistency Representatives. This Bill had provisions that between state and federal law for the purposes criminalised underpayments. However, those of s109 of the Australian Constitution was provisions were unexpectedly removed prior to affirmed inDickson v The Queen:1 the passage of the Bill through both Houses in “. . . [I]f it appears from the terms, the nature March 2021. or the subject matter of a Federal enactment that it was intended as a complete statement of
MAY 2021 LAW INSTITUTE JOURNAL 35 workplace law special edition Wages
the law governing a particular matter or set of rights and duties, Some constitutional concerns have eased then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the There had been concerns that the Wage Theft Act would be Commonwealth law and so as inconsistent”. forced to contend with the introduction of federal law on the To the extent that there are any indirect inconsistencies same matter or set of rights or duties. In February 2020 the between the Wage Theft Act and the FW Act on a particular federal government indicated that Australia could expect to see matter or set of rights or duties in relation to which the FW a Commonwealth Bill on “wage theft” tabled in the Australian Act was intended as a complete statement of the law, then the Parliament. provisions of the FW Act would prevail over the provisions of the The introduction of the Fair Work Amendment (Supporting Wage Theft Act. Australia’s Jobs and Economic Recovery) Bill 2021 increased There are numerous relevant considerations in the anticipation about a constitutional challenge between the Wage determination of the “field” that the FW Act may be attempting Theft Act and any amending legislation on wage theft from the to cover including: federal Bill. However, these concerns subsided following the • the FW Act predominately applies to “national system dramatic removal of the wage theft provisions in the Bill prior to employers” and “national system employees”2 the passage of the Bill through both Houses on 22 March 2021. • a national system employer can include a “referring State”3 The federal government has not ruled out attempting to • Victoria is a referring state4 and subject to the FW Act5 re-introduce wage theft laws at a federal level. If any such law • Section 26 of the FW Act is titled “Act excludes State or took effect in the future, then the Wage Theft Act would need to Territory industrial law” and states that the FW Act “is be assessed against the federal “wage theft” law to determine intended to apply to the exclusion of all State or Territory whether there are any inconsistencies between the two. If so, industrial laws so far as they would otherwise apply in relation then s109 of the Australian Constitution may operate to make to a national system employee or a national system employer” some or all of the Wage Theft Act invalid. • a “State or Territory industrial law” includes an act of a state It is difficult to imagine theWage Theft Act surviving unscathed that applies to employment generally and that has as one or if federal law is introduced that applies to withholding of more of its main purposes “providing for the establishment employee entitlements and underpayments. This will, of course, or enforcement of terms and conditions of employment” and depend on the exact provisions in any such federal law. However, “providing for rights and remedies connected with conduct at this time the Wage Theft Act does not appear to be threatened that adversely affects an employee in his or her employment”6 by federal laws expressly regulating wage theft. • there are numerous provisions in the FW Act that may be seen Practical implications for employers as supporting the legislative intention in s26. For example: chapter 2 of the FW Act is titled “Terms and conditions of Employers may be investigated and pursued by Wage employment”; the National Employment Standards provide for Inspectorate Victoria and the Fair Work Ombudsman for the minimum terms and conditions of employment in relation to same potential contraventions. Previously, employer admissions the matters therein; there is the requirement in s323 of the FW and self-reporting to the Fair Work Ombudsman would not Act that an employer pay an employee in full in relation to the contribute to potential imprisonment. However, this is now a performance of work (except as otherwise provided); there are possibility under the Wage Theft Act. Such admissions may be the employer obligations in relation to employee records and admissible in future criminal proceedings against employers by pay slips in ss535-536; and chapter 4 of the FW Act establishes Wage Inspectorate Victoria. the compliance and enforcement regime for breaches of the This may have a chilling effect on cooperation between civil remedy provisions of the FW Act. employers and the Fair Work Ombudsman. In turn, this may The next step is to consider whether the Wage Theft Act has make it more difficult for the Fair Work Ombudsman to pursue sought to enter part of the field in relation to which the FW Act underpayment claims in Victoria. The Fair Work Ombudsman was intended as a complete statement of law. There are concerns “carrot” of potential reduction in penalties for cooperation is that the Wage Theft Act has done this by, among other things, unlikely to have the same attraction for employers when that creating offences for failures in relation to paying employees cooperation may contribute to criminal proceedings against correctly and record keeping for employee entitlements and them. For these same reasons, employers may also be more providing for the investigation and enforcement of these resistant to other types of Fair Work Ombudsman enforcement offences. These powers are arguably already contained in the FW methods, such as future monitoring/audit programs that involve Act as established in the immediately preceding paragraph. Fair Work Ombudsman oversight. There is also an interesting question about the timing of Having said that, employers will need to be more careful than any constitutional challenge that may emerge. For example, ever that they are complying with the requirements of the Fair a constitutional challenge may be raised as a jurisdictional Work Ombudsman. Failure to do so may limit an employer’s defence to prosecution under the Wage Theft Act. However, it defences under the Wage Theft Act. For example, s6 of the statute is conceivable that a constitutional challenge could arrive establishes the offence of dishonest withholding of employee earlier and therefore affect the investigative powers of Wage entitlements. Section 6(5) states that it is a defence to the Inspectorate Victoria. For example, a constitutional challenge offence if the employer proves that, before the alleged offence, may be used to attempt to prevent Wage Inspectorate Victoria the employer had exercised due diligence to pay or attribute the from exercising powers of entry, search or seizure. employee entitlements to the employee. However, s6(6) states that for the purpose of s6(5), evidence that the employer failed
36 LAW INSTITUTE JOURNAL MAY 2021 workplace law special edition Wages
to comply with a requirement of a regulator is evidence that the Nadia Stojanova is a barrister at the Victorian Bar practising in employment, industrial, employer had not taken all reasonable steps to pay or attribute regulatory and administrative law. She is a member of the Industrial Bar Association. the employee entitlements to the employee. Before joining the Bar, she specialised in workplace relations across a range of industries and sectors. There may be questions about the effect that the introduction of criminal sanctions will have on the behaviour of employers. 1. (2010) 241 CLR 491, 502, affirmingTelstra Corporation Ltd v Worthing (1999) 197 CLR 61, 76. For example, there may be questions about whether employer 2. Fair Work Act 2009 (Cth), ss13-14. 3. Note 2 above, ss14 and 30D. fears of imprisonment may make them less likely to rectify 4. Fair Work (Commonwealth Powers) Act 2009 (Vic). underpayments in order to avoid discovery. This is not a 5. Except in relation to those matters excluded by the Fair Work (Commonwealth Powers) recommended strategy, but it may be a human response to this Act 2009 (Vic), ss5-5A. new criminal landscape. 6. Note 2 above, ss26(2)(b)(ii), 26(2)(b)(vi). Conclusion The introduction of the Wage Theft Act is a significant development in employment law in Australia. Its existence depends on its ability to survive any constitutional challenge which may come its way and may also depend, to some extent, on its ability to co-exist with the enforcement regime of the Fair Work Ombudsman and its ability to weather the political pressure from employers who may be set to experience a double investigation in the near future. ■
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MAY 2021 LAW INSTITUTE JOURNAL 37 workplace law special edition Fair Work Act
Freedom to associate
THE SECOND FORM OF 'INDUSTRIAL ASSOCIATION' RECOGNISED BY THE FAIR WORK ACT 2009 AND SOME OF THE INTERESTING WAYS IT IS DEPLOYED BY THE ACT ARE ADDRESSED HERE. A RECENT FULL COURT DECISION CONSIDERED THE CONCEPT. BY MALCOLM HARDING
Open the Fair Work Act 2009 (FW Act) and you will find that it The statutory recognition of informal refers to something called an “industrial association”. Despite the singularity of the phrase, the statutory conception of this type associations of body is broad, flexible and multifarious. It is one way in which Section 12 of the FW Act defines “industrial association” the FW Act gives effect to the link it makes, through its objects, in three ways – two are relevant: between freedom of association and fairness, representation at a) an association of employees or independent contractors, work and the prevention of discrimination.1 or both, or an association of employers, that is registered Freedom of association is a familiar idea in human rights or recognised as such an association (however described) discourse. It is not unique to employment. Human beings under a workplace law associate for all sorts of reasons. As Bromberg J recognised b) an association of employees, or independent contractors, in Australian Building Construction Commissioner v Construction, or both (whether formed formally or informally), a purpose Forestry, Mining and Energy Union (Bay Street Case), the freedom to of which is the protection and promotion of their interests do so is a fundamental human right in a free society.2 It entails, in matters concerning their employment, or their interests Bromberg J said, not only a right of individuals to form groups but as independent contractors (as the case may be). also for those individuals to be represented by, and to participate The second form, paragraph (b), is, in two quite important in, the activities of those groups.3 For Australian industrial law ways, different from the first: it does not need to be registered practitioners it is common to think of that freedom in formal, or recognised under a workplace law and may be informal.4 This binary terms – on one side, employees and their unions and is apparent from the parenthesised words “(formed formally and on the other, employers and their registered organisations. The informally)”. While “formed formally” overlaps with paragraph statutory idea of an “industrial association” does not, however, (a), “formed informally” was a genuine reform. The Explanatory confine itself in this way. Rather, it embraces more fully the Memorandum specifically draws attention to the informality human right described by Bromberg J. aspect and the low threshold for establishing an association’s STOCK ADOBE industrial purpose as distinguishing features of the FW Act definition, which it illustrates with the example of “Andrea”:
38 LAW INSTITUTE JOURNAL MAY 2021 workplace law special edition Fair Work Act
“Andrea works at the Bouncy Bluebell from, among other things, adverse action, Childcare Centre. The manager, Bernadette, coercion and misrepresentation, an “industrial SNAPSHOT 5 has been asking childcare workers to put away association” has standing to sue. This reflects heavy equipment at the end of each day while • The article examines the centrality of representational choice of the also watching the children. This requires the the concept of “industrial freedom to associate, which is given statutory staff to leave the children without supervision. association” in the FW Act effect by a standing rule that, by s540(6), from the perspective of the Andrea is concerned that this breaches the authorises an industrial association to sue in human right to associate. relevant government regulations. She suggests its own right or for a person it is “entitled to • It posits a practical way of to a number of her co-workers that they meet represent the industrial interests of” if either applying the informal form after work to talk about whether they should of association recognised by are “affected by the alleged contravention” take a collective approach on this issue, the statutory conception of of a general protection. Interesting questions including reporting the issue or contacting “industrial association” in arise when this idea is pressed into service the union. If the other employees agree to the the context of the protections as a tool of enforcement. For example, how meeting, they will be an industrial association conferred by the FW Act for is an informal association “affected” by a within the meaning of [the definition]”. engaging (or not engaging) in contravention? It is pure abstraction, with Andrea’s association is spontaneous and “industrial activity”. no existence that is independent of the flesh unstructured. Those she invites to meet are • Recent Federal Court and blood humans who associate. Likewise, co-workers who may, and probably do, already decisions have examined how is the informal association’s entitlement some of the forms of associate with each other at and for work to represent the industrial interests of those “industrial activity” referred (and perhaps also for social purposes). This for whom it sues to be discerned where to in s347(b) of the FW Act. pre-existing association may occur within it lacks a structured means to express an organisational structure arranged by her collective interests? employer according to its interests. Still, The High Court touched on the last of Andrea’s meeting offers a further, employee interest based, these two questions in Regional Express Holdings Ltd v Australian purpose that engages the meaning referred to in paragraph (b). Federation of Air Pilots (Regional Express). The Court drew on Nothing about Andrea’s proposed meeting implies any historical ideas rooted in Australian industrial jurisprudence particular structure or longevity. The membership of those about the role of unions in industrial disputes at a time when who meet may be fluid and inchoate, their combination a dispute had to exist before an award could be made that transitory: existing for a time and then ceasing, its purpose settled it. The Court concluded that the “entitlement” referred spent. On the other hand, Andrea’s meeting may evolve into to in s540(6) derived from a collective conception of industrial a group who together progress her original objectives or develop associations as guardians of the interests of a class or of industrial quite different ones. These qualities illustrate the lack of groups.6 Viewed in this way, the industrial association is not statutory presumption as to the form or government of informal merely an agent of those individuals who are affected by associations. They need only be formed and have, as one of breaches of industrial laws, but has an independent interest as their purposes, the protection and promotion of the interests the embodiment of an identifiable class of interests of which the of its members as employees or independent contractors. The individual is but an emanation. contrast with the paragraph (a) form of association is stark. There is nothing necessarily radical about this. Australian The fuller embrace by the FW Act of the freedom to associate industrial jurisprudence has long viewed formal, registered has resulted in the FW Act conferring broad protection on bodies corporate as the vehicle through which to enforce those who join industrial associations and participate in industrial laws as common informers. However, a feature of their lawful activities. It also confers on informal, as well as the body corporate form of association is its ability to aggregate formal, associations the ability to enforce those protections. and hold together a potentially ever-changing pool of employee members under rules that express the requisite entitlement. Standing and informal associations An informal association, by contrast, is unlikely to possess these The FW Act arms courts with broad powers to remedy and characteristics. However, the Court in Regional Express expressly penalise contraventions of the FW Act. Contraventions are declined to limit s540(6) to registered associations. Instead, organised around prohibitions labelled “civil remedy provisions,” it embraced the possibility that an unregistered industrial which are enforceable at the suit of named persons and association could also satisfy the “entitlement” requirement organisations with interests and functions relevant to the subject if it had a “real interest in ensuring compliance with a civil 7 matter of a particular civil remedy provision. So, for example, remedy provision for a particular class of person”. the employer and employees to whom an enterprise agreement Of course, this is all very well in theory. In theory, conferring applies can sue for a contravention of it. But so too can an litigation rights on a group of individuals offers the opportunity “employee organisation” (which has a particular meaning that to spread the costs and risks of litigation and advance the denotes an organisation of employees registered under the Fair interests each have in common. However, so far this doesn’t Work (Registered Organisations) Act 2009)) to whom the agreement seem to have offered much encouragement. The very flexibility applies or a fair work inspector (which is the Fair Work of the “industrial association” idea is reason enough though to Ombudsman or a person he or she appoints as an inspector). jettison pre-conceptions about how collective interests can and However, when it comes to the FW Act’s “general protections” should be advanced. One, practical, way in which this may be
MAY 2021 LAW INSTITUTE JOURNAL 39 workplace law special edition Fair Work Act
done is by viewing informal and formal associations as workplace by an industrial association engaged in industrial activity and companions. The effect of doing so may also serve to expand the was accordingly protected, on pain of civil penalty. Bromberg protection from adverse action for engaging in “industrial activity” J thought this de-coupled the protection from the freedom to of the kinds recognised by ss347(a) and (b) of the FW Act. associate and expanded things too far.9 For reasons of context and consequence, his Honour would have required that the A role for informal associations lawful request or requirement be one that asked or required as workplace companions the person to whom it was addressed to associate in, or with, the association, accepting, in common with Jessup J, that it was There is no statutory reason why, say, an employee cannot not limited to the participation of members in the affairs of be a union member and also associate with a group of other an association.10 employees in an informal association. Bromberg J’s approach has prevailed.11 In the appeal from A union activist who organises a group of co-workers to Jessup J's decision, Chief Justice Allsop concluded that construing meet after work or during their lunch break to discuss how s347(b)(iv) literally resulted in protected “industrial activity” they may resist or change the employer’s policy on discipline extending to activity with no connection to industrial affairs forms an industrial association and is a member of it and his or activity of any kind, or the subject of the Act.12 Considerations union. If the employer then denies the activist overtime and of context required that this protected activity be confined to adverse action litigation ensues, the employer may be called compliance with a request or requirement to participate in the on to negate the activist’s establishment of the informal lawful activities of, or concerning, an industrial association. association of co-workers as a reason for denying him or her Jessup J accepted that his formulation differed from Bromberg overtime. In this situation, both the union and the group of J’s but did not perceive those differences as substantial.13 Flick employees constituting the informal industrial association have J, the other majority judge in the appeal, viewed the concept in standing to enforce the protection conferred by s347(b)(i) of the a similar way to Bromberg J.14 FW Act (a protection that applies to a person who establishes an industrial association). Two other interesting hypothetical Conclusions examples illustrate other protected forms of industrial activity. The first concerns an employer who disciplines a worker, who It is notable that the protection the FW Act confers for engaging also happens to be a union delegate, for acceding to a request (or refusing to engage) in broad categories of industrial activity from co-workers to arrange a meeting in their own time to follows from the FW Act’s conception of it in general, activity- discuss bargaining. Here, the source of the request is not the based terms. Indeed, this is something that provoked Bromberg delegate’s union, but another informal industrial association J to observe that the activity based criteria contained in s347(b) of co-workers who seek to associate with the delegate. If the reflected a change that recognised that the Act had embraced 15 employer’s reasons for the disciplinary action include the union informal collectives of individuals. delegate’s compliance with the other association’s request, the The Full Court’s re-affirmation of the relationship between employer will infringe the protection conferred by s347(b)(iv). these activity based protections and the freedom of association So too will the employer who takes adverse action against an does nothing to diminish this recognition. But statutory employee who is an individual bargaining representative for recognition has not resulted in much development either. a new enterprise agreement if its reasons include her promotion This may reflect the real politic of industrial relations. Certainly, and advancement of the bargaining views and claims of a what development there has been has occurred in proceedings union that is bargaining for other employees. The individual against registered unions by regulators. It may also reflect employee is protected from reprisal by s347(b)(v). The bargaining a failure to appreciate the full extent to which the FW Act has representative’s activity is her choice to associate herself with embraced the freedom (including for independent contractors the union (a formal industrial association) by promoting its views and combinations of employees and contractors) and to and claims. The individual need not be a member of, or eligible make the connection between this and the inherent flexibility to join, the union. of informal associations, which, at least in employment, often reflects how organising is actually done. Recent judicial consideration It is useful to reflect on these things more than a decade after the FW Act became law. ■ The example of the union delegate who is disciplined bears some resemblance to the hypothetical union shop steward suggested Malcolm Harding SC is a barrister at the Victorian Bar. He has been at the Bar since 2003 by Jessup J in Australian Building and Construction Commissioner and was appointed Senior Counsel in 2019. v Australian Manufacturing Workers Union (the Australian Paper 1. FW Act, s3(e). Case)8 who convenes a meeting of other employees during their 2. (2018) 260 FCR 564,  FCA 83, at , citing Toohey J in Kruger v the Commonwealth lunch break at the request of another industrial association, (1997) 190 CLR 1 at 91. See also Construction, Forestry, Maritime, Mining and Energy and is dismissed. This hypothetical was used by Jessup J to Union v Building and Construction Commissioner (the Bay Street Appeal) (2020) 300 IR 383,  FCAFC 192, at  (Allsop CJ). illustrate the breadth of the protection afforded by s347(b) 3. Note 2 above, at . The freedom is recognised directly in s16(2) of the Victorian (iv) of the FW Act, which protects compliance “with a lawful Charter of Human Rights and Responsibilities Act 2006, including, but limited to, request made by, or requirement of, an industrial association”. the right to form trade unions. ADOBE STOCK ADOBE Jessup J construed the text of this provision literally, with the 4. In passing it is worth noting that both paragraphs (a) and (b) of the definition refer to result that any person who complied (or on the facts of the case, associations of employees and of independent contractors as if they are functionally refused to comply) with a lawful request or requirement made
40 LAW INSTITUTE JOURNAL MAY 2021 workplace law special edition Fair Work Act
equivalent. But see Construction, Forestry, Mining and Energy Union v McCorkell Constructions (2013) 232 IR 290,  FCA 446 at - (Bromberg J). 5. Standing is also conferred on industrial associations for contraventions of the statutory prohibitions on termination of employment for reasons prohibited by the FW Act and contraventions of an order made by the Fair Work Commission requiring an individual or group of individuals to stop bullying a worker. However, the Explanatory Memorandum to the Fair Work Bill states that the definition of industrial association is mainly relevant to the Act’s general protections. 6. (2017) 262 CLR 456,  HCA 55, at , referring to the principle in R v Dunlop Rubber Australia Ltd; ex parte Federated Miscellaneous Workers’ Union of Australia (1956) 97 CLR 71 at 81. 7. Note 6 above, at . This “real interest” may simply re-express the need for a protection and promotion purpose, albeit in a way that views this purpose objectively and as an emanation of collective work interests. 8.  FCA 167, at . 9. Which his Honour viewed as the purpose of the provisions: see Bay Street Case, at . 10. Note 9 above, at -. Nonetheless, for reasons of comity his Honour applied Jessup J’s construction: Bay Street Case at . 11. The Bay Street Appeal at  (Allsop CJ); at  (Flick J); (White J dissented, he would have upheld Jessup J’s construction, see at . In doing so, his Honour recited at - a list of single judge decisions that had followed Jessup J’s construction). 12. Note 11 above, at  (Allsop CJ). 13. Note 11 above, at . 14. Note 11 above, at . 15. Bay Street Case at . In Esso v AWU (2015) 253 IR 304,  FCA 758, at -, Jessup J characterised ss346 and 347 as instruments of real law reform that had expanded the scope and generality of the protections.
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MAY 2021 LAW INSTITUTE JOURNAL 41 workplace law special edition Employee protection
Workers more generally protected
RECENT FULL COURT DECISIONS BRING THE OPERATION OF THE FAIR WORK ACT'S NARROW ‘COMPLAINTS AND INQUIRIES’ PROTECTION CLOSER THAN IT HAS BEEN IN YEARS TO ITS PURPOSE – PROTECTING EMPLOYEES FROM RETRIBUTION. BY ANGUS MACKENZIE
42 LAW INSTITUTE JOURNAL MAY 2021 workplace law special edition Employee protection
In the wake of the #MeToo and BLM Underpinned by an movements, and with the return to SNAPSHOT in-person working, it is now more entitlement or right important than ever that workers • To date, complaints and Until recently, most views of the who make complaints are protected inquiries were understood not Court hinged on the words “is from retribution. The Fair Work be protected under s340 of able to” in the s341 definition of the FW Act unless the worker Act 2009 (Cth) (FW Act) protects “workplace right”. Even more had a right or entitlement to workers who make complaints – specifically, the recent debate has complain. but what kind of complaints are focused on differing interpretations 1 • Majority obiter in Keenan protected? indicates that s340 may not of Dodds-Streeton J’s statement Section 340 of the FW Act, among be so narrow, and that it might concerning those words in Shea. other things, protects employees extend to complaints that are Dodds-Streeton J said: against retribution from their not underpinned by strict legal “The ability to make a complaint employers for making complaints rights, or complaints about the does not arise simply because the or inquiries in relation to their absence of rights. complainant is an employee of employment. It is one of the most • Having now been accepted the employer. Rather, it must be litigated sections of the Act. To date, by a subsequent Full Court, underpinned by an entitlement the protection has been narrowly it represents the most or right. The source of such encouraging development interpreted. But Full Court obiter entitlement would include, even if in the general protections in Cummins South Pacific Pty Ltd v it is not limited to, an instrument, jurisdiction in recent times. Keenan  FCAFC 204 (Keenan) such as a contract of employment, indicates a departure from the award or legislation”.3 widely held view embodied in That statement raises several Shea v TRUenergy Services Pty Ltd (No 6)  FCA further questions. What does it mean for the ability 271 (Shea). Now accepted by a subsequent Full to complain to be "underpinned” by an entitlement Court, the departure represents a rare expansion of or right? Is it the subject matter of the complaint the protections available to employees who make that must be underpinned by the right, or the right to complaints or inquiries at work. They open up a complain? range of claims for employees who make complaints Statements in the rest of Dodds-Streeton J’s or inquiries at work that was previously unavailable. decision in Shea are inconclusive on those questions.4 And it was by no means the only view of the Court at Complaints and inquiries the time.5 Section 340 protects workplace rights. It is one of But, until Keenan, the weight of recent decisions the “general protections” provisions which prohibit favoured the view that, to qualify as a complaint certain persons from taking adverse action against under s340, an employee needed to have a right or 6 other persons because of specified prohibited entitlement to complain. That is, it isn’t enough reasons. for an employee to complain about a right or Within this scheme, s340 prohibits an employer entitlement. The employee must have a right or from taking adverse action against an employee entitlement to make the complaint itself. because they have a workplace right. Workplace That is the starting point for the decision in Keenan. right is defined in s341. An employee has a workplace right, relevantly, if they are “able to make a complaint Rights to complain or inquiry” in relation to their employment. Adverse Within the view that an employee needs a right action is also defined by s342 to encompass a wide to complain for a complaint to count under s340, range of conduct, including dismissal. two schools emerged. They came to a head in PIA The purpose of s340 is to allow an employee to Mortgage Services Pty Ltd v King  FCAFC 15 (King). advocate in support of their interests in employment Mr King made two complaints. The first was that without fear of retribution for having raised those he was entitled under the employment contract to interests.2 For example, an employer who dismisses be retained for five years, or to payment in lieu for an employee for complaining about being underpaid that period, but received neither. The second was could breach s340. If they do, the employer that he had been misled about the problems with may be required to reinstate the employee, pay the business in breach of the Australian Consumer compensation and/or pay pecuniary penalties. Law. Mr King made the complaints in an email to his But recent decisions have made important changes employer, and in a letter from his solicitors to the to the kinds of complaints that matter for the employer. He did not commence any proceedings
ADOBE STOCK ADOBE purposes of s340. under the contract or the Australian Consumer Law. Mr King claimed he was dismissed because of the complaints. The issue of whether the complaints
MAY 2021 LAW INSTITUTE JOURNAL 43 workplace law special edition Employee protection
counted for the purposes of s340 split the Court. The third view Snaden J’s reasons embody the first (narrow) view. On that view, a complaint is only protected The decision in King opened the door to a range of if it is made pursuant to a right or entitlement to claims that were barred by the first (narrow) view. complain. For example, an employee may have a But it is not the end of the story. In Keenan, right to complain about an allowance under the Bromberg and Mortimer JJ considered the scope of dispute settlement procedure set out in a modern the protection and reached a third, broader view of award. If the employee follows the process set the protection. out in the award and makes a complaint, but In that case, the primary judge fell into error by is demoted for doing so, they will have made not separately considering whether each complaint a protected complaint and the demotion will alleged was a reason for each kind of adverse 9 be a breach of s340. action alleged. That error was sufficient for the This is the narrowest of the three approaches. Court to uphold the appeal, so the facts are not It only covers complaints made in the way in presently relevant. which the employee had a right to complain. So, But the majority went a step further. Their in the example above, it will not be enough for the Honours considered the scope of s340 and landed employee to foreshadow a complaint under the on the third view of the protection. That view was award. Unless the complaint is made as required wider still than the second (broad) view expressed by the award, it is unprotected. That leaves an by the majority in King. employee who makes informal complaints without There is, the Keenan majority held, no need protection. for a complaint to be underpinned by a right 10 In King, the majority judges, Rangiah and or entitlement at all. Rather, on a proper Charlesworth JJ, rejected this first (narrow) view construction of the statute, complaints are in favour of the second (broad) view. On the second protected subject only to two limitations. First, they view, an employee must have a right to complain to must be made by employees. Second, (possibly) get the protection of s340. But the right to complain they must be complaints in relation to the 11 need not be exercised for the complaint to be particular employment of the employee. protected. For example, an employee’s complaining So if the third view begins with a rejection about a contractual underpayment will be of King, it ends with a rejection of Shea. sufficient for the complaint to be protected. They But what does that mean? There are several need not sue under the contract. upshots. The difference between the two views was First, it means that informal complaints made important in the result. about matters that do not squarely line up with On the first (narrow) view, because he never rights and entitlements can still be protected. Mr invoked his right to sue, Mr King’s complaints Keenan, for example, complained to his colleagues weren’t protected.7 The complaints he made were in a bar. It would be difficult to point to a statutory not ones he was “able to make” in the Shea sense. right or entitlement to make complaints to Snaden J held that it is only when an employee colleagues in bars. exercises a right or entitlement to complain, that On the third (broader) view, such a complaint 12 they have made a complaint underpinned by a could be protected. right or entitlement.8 Only when the complaint It also means a complaint about a lack of made is the complaint that the employee had a an avenue for redress could be protected. For right or entitlement to make, will it be protected example, an employee might complain that the by s340. employer doesn’t have a policy on flexible working On the second (broad) view, the complaints were arrangements. On the first (narrow) view or the protected. Mr King had a right to sue for a breach of second (broad) view, the complaint would be the contract (though he never exercised it). And he unprotected. had a right to sue under the Australian Consumer Only on the third (broader) view would such Law (though again, he never did). The complaints a complaint be protected. he made, the majority concluded, were ones he was able to make in the Shea sense, and protected. On that basis, the employer was found to have contravened s340 and its appeal was dismissed. ADOBE STOCK ADOBE
44 LAW INSTITUTE JOURNAL MAY 2021 workplace law special edition Employee protection
Where to from here? Angus Mackenzie is an associate in the employment and industrial law section of Maurice Blackburn Lawyers. The third view was expressed in Keenan only in obiter. 1. Section numbers in the body of the article refer to the Fair Work Act But very recently the Full Court was called on 2009 (Cth) unless otherwise specified. to consider the question again in an interlocutory 2. Cummins South Pacific Pty Ltd v Keenan  FCAFC 204, at . appeal – Sabapathy v Jetstar Airways  FCAFC 25 3. Note 2 above, at . (Sabapathy). In considering whether the applicant 4. See Shea v TRUenergy Services Pty Ltd (No 6)  FCA 271, at . Cf had a reasonable prospect of success against several –,  and –. defendants, Logan and Katzmann JJ held that the 5. See, eg, Murrihy v Betezy.com.au Pty Ltd  FCA 908, at – , where Jessup J held that a complaint or inquiry about “rights definition of workplace right required a “broad arising under federal industrial legislation” would be protected under interpretation” consistent with the majority reasons s340, though it was unclear whether the rights were necessary for the 13 14 in Keenan. In separate reasons, Flick J agreed. complaint to be protected. So the majority view in Keenan is now binding 6. See, eg,Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR authority. For the first time in years, employees who 46; PIA Mortgage Services Pty Ltd v King  FCAFC 15,  and . make informal complaints, or complaints about Cf . See also, The Environmental Group v Bowd  FCA 951, at ;  FCA 452. rights or entitlements they seek but do not have, Maric v Ericsson Australia Pty Ltd 7. PIA Mortgage Services Pty Ltd v King  FCAFC 15, at ,  can have confidence that s340 protects them against and . retribution for making those complaints. 8. Note 7 above, at  and . If we accept the majority’s view in Keenan that the 9. Note 2 above, at ,  and . purpose of s340 is to allow an employee to advocate 10. Note 2 above, at . It is at least arguable that the third view is the in support of their interests in employment without same as that expressed in Murrihy v Betezy.com.au Pty Ltd  FCA fear of retribution for having raised those interests, 908, at . But see the disagreement discussed in Keenan, at –  and . The question is clouded. this development also brings the operation of that 11. Note 2 above, at . provision closer to what it was always intended 12. Note 2 above, at . to do. ■ 13. Sabapathy v Jetstar Airways  FCAFC 25, at . 14. Note 13 above, at .
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MAY 2021 LAW INSTITUTE JOURNAL 45 courts & parliament Judgments
HIGH COURT JUDGMENTS
the Constitution provides, relevantly, “trade, the question begged by the constitutional commerce and intercourse among the States text: ‘absolutely free from what?’” Citing . . . shall be absolutely free”. The plaintiffs Cole v Whitfield (1988) 165 CLR 360 at argued that the Directions imposed a burden 394 and 398, Gageler J notes at  that on the freedom of intercourse among the it has been authoritatively determined that DR MICHELLE SHARPE Australian people by prohibiting cross- trade and commerce among the states is border movement of people. Alternatively, guaranteed by s92 to be absolutely free from the plaintiffs argued that the freedom of “discriminatory burdens of a protectionist Constitutional law trade and commerce guaranteed by s92 kind”. As to what amounts to discrimination, is contravened because the Directions in joint reasons, Kiefel CJ and Keane J Section 92 imposed an effectively discriminatory burden explain at , “Discrimination in a legal In Palmer v Western Australia  HCA with protectionist effect. The defendants sense involves a comparison of relative 5 (24 February 2021) the High Court was (the State of Western Australia and the equals by which one is treated unequally, or required to consider whether the Quarantine Police Commissioner) denied that either of unequals treated equally”. (Closing the Border) Directions (WA) the Act or the Directions contravened s92 The High Court was unanimous in finding (Directions), which effectively closed the because, they argued, neither had the that the Directions were discriminatory West Australian border from 5 April 2020, purpose of economically protecting Western but did not infringe s92 because it was infringed s92 of the Constitution. Australia rather they had the legitimate justified to protect the population of Western The Police Commissioner for Western purpose of (and were reasonably necessary Australia from COVID-19. But where their Australia issued the Directions under to achieve) the protection of the population Honours parted company was the test s67 of the Emergency Management Act of Western Australia against risks arising adopted to determine this justification. Kiefel 2005 (WA) (the Act). Section 67 allows from emergency situations. CJ and Keane J and, in a separate judgment an authorised officer to (among other No agreement could be reached between Edelman J, held that the proper test was things) “direct or, by direction, prohibit, the parties on the facts necessary to the “structured proportionality test” – a rigid the movement of persons . . . into, out of determine the plaintiffs’ claim by the High test involving three distinct steps (see - or around an emergency area or any part Court. Accordingly, the High Court remitted ). Conversely, Gageler and Gordon JJ, of the emergency area” during a state of the issue to the Federal Court of Australia in separate judgments, considered that the emergency for the purpose of “emergency for hearing and determination pursuant proper test for justification was “reasonable management”. A Minister may declare a to s44 of the Judiciary Act 1903 (Cth). On necessity”. The test involves an evaluative state of emergency under s56 of the Act 25 August 2020, Rangiah J of the Federal judgment as to the suitability and necessity provided that the conditions enumerated Court found that the facts pleaded by the of the legislation imposing the burden. under s56(2) are met. The Minister defendants, in support of their argument declared a state of emergency under the that the Directions did not infringe s92, Class actions Act on 15 March 2020 (after the World had been proved. Importantly, Rangiah J Competing class actions Health Organisation declared COVID-19 held that the risk to the health of the West a pandemic). Australia population was a function of In Wigmans v AMP Limited & Ors  The challenge to the Directions was two factors: the probability that COVID-19 HCA 7 (10 March 2021) the High Court brought by Clive Palmer (Palmer) and would be imported into the population and was required to consider whether the Mineralogy Pty Ltd, a company of which the seriousness of the consequences if it Supreme Court of New South Wales had Palmer is chairman and managing director was imported. Rangiah J concluded that, the power to choose between competing (the plaintiffs). Palmer regularly travelled given the uncertainties about importation group proceedings as to which to allow between WA and his home in Queensland of the disease into Western Australia and to proceed on any basis other than on for business purposes. Palmer applied for, the potentially serious consequences of a “first-in-time” basis. and was denied, an exemption under the the disease, “a precautionary approach In April 2018, AMP executives gave Directions. The plaintiffs subsequently should be taken to decision-making about testimony to the Financial Services Royal brought proceedings in the original the measures required for the protection Commission to the effect that AMP had jurisdiction of the High Court, in May of the community” (see ). deliberately charged some of its clients fees 2020, seeking a declaration that “either The High Court unanimously (but in for no service and that it had misled ASIC the authorising Act and/or the Directions are separate reasons) rejected the plaintiffs as to the extent of its conduct. Following this invalid, either wholly or in part . . . by reason challenge to the Directions. As Gageler J testimony, the value of AMP shares on the of s92 of the Constitution”. Section 92 of observed at , “The ‘riddle of s92’ lies in Australian Stock Exchange dropped sharply.
46 LAW INSTITUTE JOURNAL MAY 2021 courts & parliament Judgments
Subsequently, and in quick succession, to make the funding of the group proceeding other than having regard to the overriding five separate open class representative commercially viable); the experience of purpose set out in s56. Similarly, the proceedings were commenced on behalf of the legal practitioners and funders and the majority concluded at  that the common AMP shareholders who had invested in AMP availability of resources; the state of progress law does not support a first-in-time rule or during the periods of time in which they of the proceedings; and the conduct of the presumption. Instead, the majority observed, allege the company should have disclosed representative plaintiffs to date. Applying multiple suits remain to be resolved by the the information, revealed at the Royal these factors, the trial judge favoured the exercise of the Court’s discretion informed Commission, to ASIC. The first of these Kolotex/Fernbrook proceeding because of by all the relevant circumstances and representative proceedings was brought by its superior proposal with respect to the referred to the approach adopted in equity the applicant (Wigmans). The last two group provision of security for AMP’s costs and the as illustrated in cases such as McHenry v proceedings commenced were brought by proceeding was to be funded by the lawyers Lewis (1822) 22 Ch D 397. Accordingly, the the second respondent (Kolotex) and the themselves on a “no win, no fee basis”. majority held at  that there was no error third respondent (Fernbrook). Kolotex and Wigmans appealed unsuccessfully to in the primary judge’s approach but noted Fernbrook later consolidated their proceeding the Court of Appeal of New South Wales. that this was not the only manner in which (the Kolotex/Fernbrook proceeding). The Court of Appeal found no error in the a court might have resolved the issue. It is The head plaintiffs for each group primary judge’s reasons, although the Court convenient to note here that the majority, proceeding brought an application considered that the determination of the stay also expressed the view at  and  to permanently stay the other group applications ultimately turned on whether the that the “first-in-time”, for which Wigmans proceedings. The primary judge ordered ends of justice required such a remedy rather contended, would be “unworkable” that all of the group proceedings, save than case management principles. and would lead to “an ‘ugly rush’ to the for the Kolotex/Fernbrook proceeding, Wigmans then appealed to the High court door”. ■ be permanently stayed. Ostensibly, the Court. In a narrow 3:2 split Wigmans’ Dr Michelle Sharpe is a Victorian barrister practising primary judge made this order pursuant to appeal failed. Kiefel CJ and Keane J (in the in general commercial, disciplinary and regulatory law, ss67 and 183 of the Civil Procedure Act 2005 minority) did not consider that either the CPA ph 9225 8722, email msh[email protected]. The full version (NSW) (CPA) (which respectively empowers or the Supreme Court’s inherent power to of these judgments can be found at www.austlii.edu.au. the court to stay proceedings and empowers prevent abuse of its processes authorised the court to make any order the court thinks the Supreme Court to chose between necessary to ensure that justice is done) and group proceedings. Their Honours also the inherent power of the Supreme Court expressed the view at  that the Court’s (which encompasses both powers). The “fundamental function as the independent primary judge approached the determination arbiter of the merits of the group members’ of the stay applications by an assessment claims as between them and the defendant of the potential benefits expected to flow sits awkwardly with the assumption, without to group members in each representative legislative direction, of a role whereby the proceeding. The trial judge proceeded by Court makes a reputational investment reference to the case management principles in the choice of sponsor”. Their Honours contained in the “overriding purpose” stated at  that the courts below should provided in s56 of the CPA and adopted have determined the stay applications by a “multi-factorial analysis” of the kind reference to the principle that it is prima endorsed by the Full Federal Court in Perera facie vexatious to commence an action if v GetSwift Ltd (2018) 263 FCR 92 at . an action is already pending in respect of the The eight factors, identified by the primary same controversy in which the same relief is judge, as relevant to the determination available. And, on that basis, given that the of the stay applications included: the net Wigmans proceeding was first in time, the hypothetical return to group members; Kolotex/Fernbrook proceeding should have the proposal for security for AMP’s costs; been stayed. the nature and scope of the causes of The majority (Gageler, Gordon and action advanced; the size of the respective Edelman JJ) reached a very different classes; the extent of any bookbuild (that is conclusion. The majority considered at  the process of joining a sufficient number that s67 of the CPA was a broad power, of members with a sufficient claim value unconstrained by any particular criteria,
MAY 2021 LAW INSTITUTE JOURNAL 47 courts & parliament Judgments
FEDERAL COURT JUDGMENTS
were also brought by ASIC against GetSwift prejudged the resolution of issues common and (among others) Mr Macdonald for to both proceedings (prejudgment ground) alleged contraventions of the Corporations (at -). Act and the ASIC Act (ASIC proceeding). The allegations raised by ASIC and by Mr Consumer law Webb were largely the same and the primary DAN STAR QC Unconscionable conduct – whether Kobelt, judge accepted that he would be dealing precedent or statutory interpretation requires that with largely the same course of events in exploitation or taking advantage of some pre-existing the class action as in the ASIC proceeding. Courts and judicial system vulnerability, disadvantage or disability is a necessary The ASIC proceeding had been heard element of statutory unconscionability Apprehended bias – trial judge does not recuse and judgment was reserved. The primary himself – Full Court held hypothetical observer judge was due to commence hearing the In Australian Competition and Consumer might reasonably apprehend that the trial Webb proceeding. The primary judge Law v Quantum Housing Group Pty Ltd judge might be influenced subconsciously by intended that judgment in each proceeding  FCAFC 40 (19 March 2021) the extraneous information would be based on (and only based on) Full Court determined an important issue as In GetSwift Limited v Webb  FCAFC the evidence adduced in, and argument to the meaning and application of statutory 26 (5 March 2021) the ultimate issue in advanced in, each proceeding (that is, provisions that call for a standard of business the appeal was whether the primary judge without regard to the evidence adduced conduct in Australia that is not, in all the should have disqualified himself from hearing in, and argument advanced in, the other circumstances, unconscionable, in this case the trial in a class action proceeding (Webb proceeding). In both cases, it was highly s21 of the Australian Consumer Law (ACL) proceeding). The primary judge decided not likely that the factual issues would be being Schedule 2 to the Competition and to disqualify himself. The Full Court allowed determined by reference to the documentary Consumer Act 2010 (Cth). the appeal. Relevantly, the appeal raised evidence that was common to both the The ACCC brought proceedings against questions concerning the knowledge to be Webb and ASIC proceeding and inferences Quantum Housing Group Pty Ltd and its attributed to the hypothetical observer (the drawn from it. Therefore, the primary judge sole director and secretary, alleging conduct fair-minded lay observer) and the extent to would have already formed some views that involved misleading representations in which extraneous information in the mind of about the documentary evidence adduced contravention of ss18(1), 29(1)(l) and 29(1) a fact finding judge which is to be discarded in the ASIC proceeding if he heard the Webb (m) of the ACL and that was unconscionable might still have a subconscious effect on the proceeding (at ). in contravention of s21 of the ACL. The decision to be made by that judge. GetSwift submitted that the primary respondents admitted the contraventions The issue arose in circumstances where judge erred in failing to conclude that a including unconscionable conduct under s21 the primary judge was intending to hear fair-minded lay observer might reasonably of the ACL. The primary judge made orders a regulatory civil penalty proceeding and apprehend that the primary judge might not including declarations for the contraventions a representative proceeding under Pt bring an impartial mind to the resolution of ss18(1) and 29(1) of the ACL and IVA of the Federal Court Act 1976 (Cth) of the Webb proceeding by reason of his ordered penalties. However, the primary consecutively. In the Webb proceeding, having heard evidence and argument in judge refused to conclude and to declare Mr Webb made allegations against GetSwift the ASIC proceeding (at ). Middleton, that the conduct was unconscionable. Limited (GetSwift) of continuous disclosure McKerracher and Jagot JJ summarised The ACCC appealed the failure of the contraventions under s674(2) of the the principles applicable to apprehended primary judge to make a declaration Corporations Act 2001 (Cth) (Corporations bias (at -). GetSwift succeeded on as to unconscionable conduct. Act), and of false or misleading statements the ground that a fair-minded lay observer The key issue in the appeal was whether, and misleading and deceptive conduct in might reasonably apprehend that the primary for conduct to be unconscionable under contravention of ss1041E and 1041H of the judge, consciously or subconsciously, might s21 of the ACL or cognate provisions such Corporations Act, s12DA of the Australian be influenced by extraneous information as s12CB of the Australian Securities and Securities and Investments Commission from the ASIC proceeding (extraneous Investments Commission Act 2001 (Cth), Act 2001 (Cth) (ASIC Act) and s18 of Sch 2 information ground) (at -). However, there is required to be present vulnerability to the Competition and Consumer Act 2010 the Full Court did not accept the ground that or disadvantage in the person or persons to (Cth). There were also allegations against a fair-minded lay observer might reasonably whom the conduct can be seen as directed a director of GetSwift, Mr MacDonald, by apprehend that, in hearing, considering, and and that such was exploited or taken reason of knowing involvement in GetSwift’s forming views about the material in the ASIC advantage of. Allsop CJ and Besanko and contraventions. Civil penalty proceedings proceeding, the primary judge might have McKerracher JJ held “[w]hilst some form
48 LAW INSTITUTE JOURNAL MAY 2021 courts & parliament Judgments
of exploitation of or predation upon some of the High Court, indeed, of any justice FCAFC 20 (26 February 2021) the Full Court vulnerability or disadvantage of people will of the Court in Kobelt (other than Keane J) considered costs following the hearing of a often be a feature of conduct which satisfies requires in any case that for conduct to be separate question resulting in unsuccessful the characterisation of unconscionable unconscionable by reference to ss12CB public interest litigation. The Full Court conduct under s21, such is not a necessary and 12CC of the ASIC Act (or ss21 and examined and applied the principles in feature of the conception or a necessary 22 of the ACL) there must be found some Oshlack v Richmond River Council (1998) essence in the embodied meaning of the form of pre-existing disability, vulnerability 193 CLR 72. Having regard to particular facts statutory phrase” (at ; see also -). or disadvantage of which advantage was and circumstances of the proceeding, the The Full Court’s judgment involved a taken” (at ). Full Court departed from the usual order deep analysis of the different reasons for The Full Court allowed the ACCC’s appeal as to costs and held there should be no judgment of the members of the High Court and made a declaration of unconscionable order as to costs. ■ in Australian Securities and Investments conduct under s21 of the ACL. Dan Star QC is a Senior Counsel at the Victorian Commission v Kobelt (2019) 267 CLR 1 (at Bar, ph (03) 9225 8757 or email [email protected]. -). Having done so, the Full Court Costs au. The full version of these judgments can be found held that the primary judge erred in his at www.austlii.edu.au. Numbers in square brackets Public interest litigation – whether depart understanding and application of Kobelt. refer to a paragraph number in the judgment. from usual orders as to costs Allsop CJ and Besanko and McKerracher JJ “rejected[ed] the proposition that ratio or In Bob Brown Foundation Inc v seriously considered obiter dicta of a majority Commonwealth of Australia (No 2) 
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MAY 2021 LAW INSTITUTE JOURNAL 49 courts & parliament Judgments
FAMILY LAW JUDGMENTS
Kennedy [ed. full citation: Thorne v Kennedy “. . . [T]he . . . judge found that the . . .  FamCAFC 9] . . . ( at ). practitioners were . . . negligent in failing “. . . [I]t is one thing for the wife to have to come to grips with these difficulties . . . had an understanding of the effect of the [T]he [barrister] . . . said that she considered CRAIG NICOL & BFA not radically different from its actual withdrawing . . . but did not do so because KELEIGH ROBINSON effect . . . but it is a very different thing for the [solicitor] . . . threatened to sue her for a person to have sufficient knowledge and negligence . . . (at ). understanding adequately to protect their “The . . . various forms of the initiating Financial agreements own interests . . .” (at ). application filed by [the applicant] . . . failed to assert a breakdown of the relationship or That the wife was advised against signing the BFA, Costs identify a date that it occurred . . . [T]he first but did so anyway, may be an “indicium of undue three versions of the initiating application No error in trial judge’s order that applicant’s influence” as held inThorne v Kennedy  sought a declaration that the relationship barrister and solicitor pay respondent’s costs FamCAFC 9 had not ended . . . [The applicant’s] . . . where property case improperly pursued In Beroni & Corelli  FamCAFC 9 affidavit evidence was consistent with . . . (10 February 2021) the Full Court (Strickland, In Beamish & Coburn (Deceased)  no breakdown of the relationship” (at ). Aldridge & Kent JJ) dismissed with FamCAFC 20 (22 February 2021) the Full costs the husband’s appeal from Tree J’s Court (Aldridge, Austin & Tree JJ) dismissed Children decision in Corelli & Beroni  FamCA with costs an appeal in a case where a live-in Father’s loss of confidence in family report writer 911 where a hairdresser’s testimony carer had sought a declaration as to the insufficient to support his application to appoint corroborated the wife’s case that she was existence of a de facto relationship and a new expert not proficient in English when she signed property orders. a Part VIIIAB financial agreement, the Court The Court found that there was no In Behrendt & Cadenet (No. 2)  FamCA setting it aside for unconscionability and evidence of the breakdown of a de facto 19 (29 January 2021) Harper J dismissed undue influence. relationship. The applicant’s barrister a father’s interim application in a parenting The agreement was signed a few months and solicitor appealed the order that case for the appointment of a new family before the wife was granted a spouse visa. they be jointly and severally liable for the report writer in respect of a 10-year-old While the agreement and advice provided respondent’s costs, fixed at $100,000. child, where the family report writer, Dr B, to the wife was in English, the Court The Full Court said: referred in an interim report to the mother’s accepted that the wife did not understand “The initiating application . . . was signed allegation that she had in her possession a the nature of what she signed; the content by [the applicant] . . . At line 27, a cross large amount of pornography downloaded of the agreement; nor the advice provided indicated that a date of final separation by the father which, when appraised, might to her, despite the wife having not called was ‘[n]ot applicable’ . . . (at ). become a finding of paraphilia on the father’s evidence from her then solicitor. “ In her affidavit . . . [the applicant] part (at ). The Full Court said: . . . said: A USB stick of “about 500 professionally “It is the husband’s contention that ...... I believe [we] are still a couple but shot stack static images of young attractive in circumstances where the wife’s solicitor for the restrictions placed on me to visit women” and “pornographic digital movies” advised her against signing the BFA . . . the him at his nursing home . . . was provided to Dr B who recommended wife acted on her own free will . . . ( at ). . . . [The deceased] did not voluntarily that reports be obtained from an IT expert “. . . Given the 30 minute duration of leave me but was forced to . . .” (at ). (as to viewing patterns) and a paraphilia the meeting along with the wife’s lack “. . . [D]ifficulties emerge from this expert (at -). of proficiency in English, any explanation evidence (at ). The Court said: given to the wife would have been wholly “The first is whether the parties had . . . “The father . . . argued that the USB inadequate for her to understand the separated at all. This issue can arise when materials have negligible probative value . . . advantages and disadvantages of signing one party . . . is moved to a hospital or an (at ). the BFA (at ). aged care facility. This does not . . . mean “. . . [T]he father contended that the “. . . [T]hat the wife was advised against there has been a separation or breakdown material Dr B had . . . seen may have signing the BFA, but did so anyway, may be of the . . . relationship . . . (at ). contaminated his opinion . . . he may . . . an ‘indicium of undue influence’ as was held “The second is identifying the date have prejudged factual issues such as the to be the case by the plurality in Thorne v of the breakdown of the . . . relationship . . . ownership of the pornographic material and (at ).
50 LAW INSTITUTE JOURNAL MAY 2021 courts & parliament Judgments
the nature of the father’s viewing patterns of the husband’s family. The husband sought the effect of preserving the value of the . . . (at ). orders compelling the removal of the wife assets of the parties (at ). “I reject the argument based on the as director, arguing that the company “I do not ignore the potential for assertion that the USB materials have required finance for the development of difficulty to be created . . . [difficulties for negligible probative value . . . [I]t is not the real property it owned so as to sustain the business] in the absence of a suitable possible or appropriate to attempt to form business operations, which would ordinarily business venue development . . . (at ). any view about the probative value of the be sourced from his father, but where “I accept that at this stage there is not USB materials at this point . . . (at ). his father had refused to assist financially sufficient evidence that would enable the “. . . Although the father disavowed any so long as the wife participated in the Court to make an informed decision and on reliance upon apprehended bias, it seems business structure. that basis whilst I consider there is merit in to me that that is . . . what lies behind his The wife consented to the appointment the husband becoming a co-director of G Pty assertions of loss of confidence in Dr B of the husband as co-director, but opposed Ltd, I am not prepared to order the wife’s . . . (at ). her removal as director. The wife also sought removal as a director . . .” (at ). “. . . The . . . fact that [Dr B] . . . considered that she be appointed as co-director of The parties were directed to appoint the that further expert evidence was necessary another corporate trustee, V Pty Ltd, which husband as co-director of G Pty Ltd and also demonstrates that he himself was not owned shares in the family business. directed to appoint the wife as co-director offering any opinion about the father’s habit The Court said: of V Pty Ltd. ■ of viewing material . . . (at ). “[The husband’s father] . . . considers Craig Nicol is an accredited family law specialist and “I accept the submission of Counsel that G Pty Ltd would not be able to obtain editor of The Family Law Book, a looseleaf and online for the mother that if loss of confidence commercial finance whilst the wife remains service: see www.thefamilylawbook.com.au. He is alone was a broadly applicable criterion for in control [and further] . . . considers that the assisted by accredited family law specialist Keleigh discharge of a single expert, such discharges finance arrangements would in any event Robinson. References to sections of an Act in the text would be happening on a regular basis . . . be unsuccessful unless he was prepared to refer to the Family Law Act 1975 (Cth) unless otherwise specified. The full text of these judgments can be found (at ). commit $1 million in support of the finance at www.austlii.edu.au. The numbers in square brackets application. He is not prepared to do so in the text refer to the paragraph numbers in the judgment. Property whilst the wife remains involved (at ). “There has not been evidence presented Husband appointed co-director of corporate that would support the financial viability trustee but failed in his application for removal of and implication for [the business] . . . and the wife as director therefore the husband’s direct and indirect In Crawford & Crawford  FamCA interest in same (at ). 15 (29 January 2021) Berman J allowed a “There is potential merit in the position husband’s interim application to be made a adopted by each of the parties. In the director of G Pty Ltd, which was a corporate absence of evidence the Court has no ability trustee of a family trust and owned land to determine, whether if orders are made associated with the business operations as sought by the husband, they will have
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MAY 2021 LAW INSTITUTE JOURNAL 51 courts & parliament Judgments
SUPREME COURT JUDGMENTS
process validating “each and every member in Cameron v Hogan.1 Edmond Hogan, the of the Labor Party in Victoria as genuine, Premier of Victoria and leader of the ALP, had consenting and self-funded” (at -). commenced proceedings against the party’s Based on Mr Andrew’s proposal, the executive after being excluded from the ALP National Executive passed a resolution (and not pre-selected for the 1932 election) DR MICHAEL TAYLOR to appoint the administrators, to which for his refusal to oppose the then “Premier’s Victorian Branch officials and staff were Plan” (at ). Having been re-elected as to report (at -). Later, in September a non-ALP candidate, Mr Hogan sought Associations – application 2020, the National Executive passed declarations that his exclusion from the party for interlocutory injunction a further resolution that amended the was wrongful and alleged that he suffered – whether issues raised Victorian Branch’s rules, the effect of loss and damage by not being leader of the which was to grant temporary powers to party in Victoria (at ). The High Court justiciable the administrators that included, inter alia, dismissed the proceeding on the basis Kairouz v Bracks  VSC 130, (19 March 2021, the power to charge a member with a breach that membership of the ALP (a voluntary No S ECI 2021 00274, Ginnane J) of branch stacking rules and to revoke unincorporated association) did not establish membership of a member (at -). any legal or equitable interest entitling him to This case note concerns an application The amending resolution also changed an injunction (at ). Over time, Cameron v for an interlocutory injunction by Marlene the definition (and application) of “branch Hogan has been distinguished based on the Kairouz, Member for Kororoit in the Victorian stacking” in the rules. In summary, the increasing public character of political parties Legislative Assembly and member of the amended rule reversed the onus of proof by reason of registration under electoral Victorian Branch of the Australian Labor and had retrospective effect (at  and ). legislation and public funding (at -). Party (ALP) (at ). Ms Kairouz sought to The charges brought against Ms Kairouz For Ms Kairouz, it was submitted that, restrain the ALP’s Disputes Tribunal from alleged that she was involved in branch at a minimum, the question of justiciability hearing charges brought against her by the stacking under the amended rules, and was a serious question to be tried (at ). administrators of the Victorian Branch (at ). were communicated to her by the acting Further submissions included: There were 26 defendants to this application, state secretary at 10.53pm on 31 January • on the issue of the appointment of the the first and second defendants – Steve 2021, the administrator’s last day in their administrators, it was submitted that Bracks (former Premier of Victoria) and Jenny role (at -, ). in doing so the National Executive had Macklin (former Minister in the Australian Central to Ms Kairouz’s claim was the not formed the opinion (as required by government) – being the administrators structure of the ALP and the validity of cl 16 of the National Constitution) that appointed by the National Executive of the the appointment of the administrators the Victorian Branch was acting contrary Labor Party on 16 June 2020 (at ). The and amendments to the Victorian party to the National Constitution; rather, remaining defendants were the members rules. The ALP itself is an unincorporated it acted “[a]t the behest of the Premier of the National Executive and/or the Interim association governed by its National of Victoria” (at ) Governance Committee of the Victorian Constitution, cl 16 and 18 of which establish • with regard to Cameron v Hogan, Branch that replaced the administrators as of a National Executive that is subject only to it was submitted that it did not foreclose 1 February 2021 (at -). the National Conference (at -). The Ms Kairouz’s claims because political By way of background, on 14 June 2020 ALP’s National Executive may exercise its parties “can no longer be treated as just 60 Minutes/The Age reported on their powers in relation to state branches of the a club or voluntary association” and were investigation into Adem Somyurek. The party, where cl 16 permitted the National recognised as being public in character following day, the Premier of Victoria Daniel Executive to overrule a state branch and/ (at ) Andrews wrote to the National Executive or take over its affairs if it is of the opinion • that recognition of public character was to notify them of his intention to charge that the state branch is acting in a manner expressed in several ways, including Mr Somyurek under the Victorian Branch’s contrary to the National Constitution, a public funding under electoral legislation rules (at ). Mr Somyurek resigned his decision of the National Conference or the where the Victorian Branch of the ALP will membership of the ALP that day, and on 16 party’s national platform (at -). receive approximately $13 million in public June 2020 Mr Andrews again wrote to the Judicial intervention into a political party’s funding for the 2022 election (at ) National Executive, stating that he had no internal disputes is dependent on the • in terms of Ms Kairouz’s own legal or confidence in the integrity of the Victorian justiciability of the claim before the Court, equitable interest, she had an interest Branch’s internal voting rolls and requested the determination of which must consider in the ALP’s assets given that as an that Mr Bracks and Ms Macklin serve as the High Court of Australia’s 1934 decision ALP member sitting in the Victorian administrators to oversee a reform and review
52 LAW INSTITUTE JOURNAL MAY 2021 courts & parliament Judgments
Parliament, she was required to pay • the identification of party members on their potential retrospectivity and reversal 6.2 per cent of her salary to the party who will give the authorised officer of the onus of proof (at ). Ms Kairouz’s (at -) instructions (usually the party executive right to challenge such matters “is arguably • in relation to the balance of convenience, or administrative committee). both a legal and a public or public interest it was submitted that this favoured Such matters are justiciable due to their right” where her ability to challenge the rule Ms Kairouz “as her position in the ALP may association with electoral legislation and amendments went to “her legal right not to be otherwise compromised and if expelled expenditure of public money, and this was face invalid charges of a serious character” she would not be able to obtain pre- held to be sufficient to confer justiciability in (at ). Finally, there was also a serious selection for the 2022 election” (at ). political party disputes with “a connection to question to be tried as to whether Ms Kairouz For the defendants, it was submitted that the operation of [electoral legislation]” and could assert a public interest in challenging the proceeding should be dismissed on the the identity of those in the party who play a the initial Administrative Resolution “in order basis that it was not justiciable. If it were, role in accounting for public funding (at ). to establish who is entitled to govern the then there was no basis to depart from Fundamental disputes about governance and Victorian Branch” (at ). Cameron v Hogan and that Ms Kairouz the identity (and instruction) of authorised In relation to the balance of convenience, had not demonstrated a legal or equitable officers under electoral legislation were Ginnane J was of the view that it favoured interest that would entitle her to a final such that if present, “the lack of certainty the grant of the interlocutory injunction so as injunction (at -). about the control of, or accountability for, to resolve the legal issues. Otherwise, it was On the question of justiciability, Ginnane J significant public funding provided to the possible that the charges may be heard reiterated that Cameron v Hogan was binding party may also be influential in establishing and determined by the Disputes Tribunal on the Court. Nonetheless, subsequent justiciability” (at ). On such an approach, before the Court’s ruling (at -). decisions have held that because of it was held that Ms Kairouz had established In the circumstances, the interlocutory registration and public funding regimes under a serious question to be tried with respect injunction was granted, with the 22nd to relevant electoral legislation, “unincorporated to justiciability. This dispute concerns the 26th defendants (the Interim Governance political parties have changed in character” identity of those governing the Victorian Committee) being restrained and prohibited suggesting that “political parties have Branch of the ALP and, as a consequence, from proceeding with the charges against become a form of public institution and who could give instructions to an authorised Ms Kairouz in the Disputes Tribunal until the that disputes arising in them, particularly officer (at ). current matter is determined by the Court in respect of their pre-selection of candidates In addition to justiciability, Ginnane J found or further order (at ). ■ for election, are justiciable in the public that the other issues raised by Ms Kairouz’s Dr Michael Taylor is a barrister at the Victorian Bar interest” (at ). Also of note was the claim were also serious questions to be (email: [email protected]). The numbers in Victorian decision of Butler v Mulholland tried (at ). These questions went to the square brackets in the text refer to the paragraph numbers (No 2),2 suggesting that a dispute in a political validity of the Administrative Resolution, the in the judgment. The full version of this judgment can be party is justiciable when it concerns (at ): appointment of the administrators and (as a found at www.austlii.edu.au. • the identity of a party officer who is consequence of those matters) the validity of 1. (1934) 51 CLR 358. the authorised officer (under electoral the September 2020 amendment to the rules 2.  VSC 662. legislation) responsible for receipt (at ). In particular, the September 2020 of (and accounting for) public money amendments were open to question based
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MAY 2021 LAW INSTITUTE JOURNAL 53 courts & parliament Legislation
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As at 23/03/2021 As at 23/03/2021 2021 No. 3 Change or Suppression (Conversion) Practices Prohibition Act 2021 No. 1 Australian Immunisation Register Amendment (Reporting) Act 2021 No. 4 Owners Corporations and Other Acts Amendment Act 2021No. 2 Aged Care Legislation Amendment (Improved 2021 No. 5 Workplace Injury Rehabilitation and Compensation Amendment Home Care Payment Administration No. 2) Act (Provisional Payments) Act 2021 No. 3 Crimes Legislation Amendment (Economic Disruption) Act 2021 No. 6 Summary Offences Amendment (Decriminalisation of Public Drunkenness) Act 2021 No. 4 Customs Amendment (Product Specific Rule Modernisation) Act 2021 No. 7 Public Health and Wellbeing Amendment (State of Emergency Extension) Act 2021 No. 5 National Consumer Credit Protection Amendment 2021 No. 8 Constitution Amendment (Fracking Ban) Act (Mandatory Credit Reporting and Other Measures) Act 2021 No. 9 Education and Training Reform Amendment Act 2021 No. 6 Native Title Legislation Amendment Act 2021 No. 10 Education and Training Reform Amendment (Miscellaneous) Act 2021 No. 7 Telecommunications Amendment (Infrastructure in New Developments) Act 2021 No. 8 Therapeutic Goods Amendment (2020 Measures No. 2) Act New Victorian 2021 Regulations 2021 No. 9 Aged Care Legislation Amendment (Serious Incident Response Scheme and Other Measures) Act As at 23/03/2021 2021 No. 10 Customs Tariff Amendment (Incorporation of Proposals and Other Measures) Act 2021 No. 7 Subordinate Legislation (Severe Substance Dependence Treatment Regulations 2011) Extension Regulations 2021 No. 11 Export Control Amendment (Miscellaneous Measures) Act 2021 No. 8 Occupational Health and Safety Amendment (Crystalline Silica) 2021 No. 12 Federal Circuit and Family Court of Australia Act Interim Regulations 2021 No. 13 Federal Circuit and Family Court of Australia 2021 No. 9 Victims of Crime Assistance Amendment Rules (Consequential Amendments and Transitional Provisions) Act 2021 No. 10 COVID-19 Omnibus (Emergency Measures) 2021 No. 14 Higher Education Legislation Amendment (Provider (Commercial Leases and Licences) Amendment Regulations Category Standards and Other Measures) Act 2021 No. 11 Service Victoria (Transfer of Births, Deaths and Marriages 2021 No. 15 National Redress Scheme for Institutional Child Sexual Identity Verification Functions) Regulations Abuse Amendment (Technical Amendments) Act 2021 No. 12 Service Victoria (Transfer of WorkSafe Victoria Functions) Regulations 2021 No. 16 Agriculture Legislation Amendment (Streamlining Administration) Act 2021 No. 13 Drugs, Poisons and Controlled Substances Amendment 2021 No. 17 VET Student Payment Arrangements (Miscellaneous Amendments) Act (Nurses and Midwives) Regulations 2021 No. 18 Education Services for Overseas Students Amendment 2021 No. 14 Water (General) Regulations (Refunds of Charges and Other Measures) Act 2021 No. 15 Public Health and Wellbeing Further 2021 No. 19 Financial Sector Reform (Hayne Royal Commission Response No. 2) Act Amendment (Infringement Penalties) Regulations 2021 No. 20 National Collecting Institutions Legislation Amendment Act 2021 No. 16 Supreme Court (Chapter I Appendices A and B Amendment) Rules 2021 No. 21 Treasury Laws Amendment (News Media and Digital 2021 No. 17 Supreme Court (Chapters I and VI Suppression Orders Amendment) Rules Platforms Mandatory Bargaining Code) Act 2021 No. 18 Victorian Civil and Administrative Tribunal (Fees) Amendment Regulations 2021 No. 22 Higher Education Support Amendment (Freedom of Speech) Act 2021 No. 19 COVID-19 Omnibus (Emergency Measures) Transitional Regulations 2021 No. 20 Residential Tenancies (Residential Tenancies Amendment Act 2018) New Commonwealth 2021 Regulations Transitional Regulations 2021 No. 21 Residential Tenancies Amendment Regulations As at 23/03/2021 ASIC Supervisory Cost Recovery Levy Amendment (Claims Handling New Victorian 2021 Bills and Settling Services Providers) Regulations 2021 Australian Charities and 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54 LAW INSTITUTE JOURNAL MAY 2021 courts & parliament Legislation
Financial Framework (Supplementary Powers) Amendment (Agriculture, New Commonwealth 2021 Bills Water and the Environment Measures No. 1) Regulations 2021 Financial Framework (Supplementary Powers) Amendment (Education, As at 23/03/2021 Skills and Employment Measures No. 1) Regulations 2021 Archives and Other Legislation Amendment Bill 2021 Financial Framework (Supplementary Powers) Amendment Biosecurity Amendment (Clarifying Conditionally Non-prohibited Goods) Bill 2021 (Health Measures No. 1) Regulations 2021 Biosecurity Amendment (Strengthening Penalties) Bill 2021 Financial Framework (Supplementary Powers) Amendment (Home Affairs Measures No. 1) Regulations 2021 Charter of Budget Honesty Amendment (Rural and Regional Australia Statements) Bill 2021 Financial Framework (Supplementary Powers) Amendment (Infrastructure, Transport, Commonwealth Environment Protection Authority Bill 2021 Regional Development and Communications Measures No. 1) Regulations 2021 Education Legislation Amendment (2021 Measures No. 2) Bill 2021 Financial Sector Reform (Hayne Royal Commission Response) Ending Indefinite and Arbitrary Immigration Detention Bill 2021 (2021 Measures No. 1) Regulations 2021 Environment Protection and Biodiversity Conservation Amendment Income Tax Assessment (1997 Act) Regulations 2021 (Standards and Assurance) Bill 2021 Migration Amendment (2021 Measures No. 1) Regulations 2021 Family Assistance Legislation Amendment (Early Childhood Education Migration Amendment (Parent Visas) Regulations 2021 and Care Coronavirus Response and Other Measures) Bill 2021 Migration Legislation Amendment (English Tuition) Regulations 2021 Hazardous Waste (Regulation of Exports and Imports) Amendment Bill 2021 National Consumer Credit Protection (Transitional and Consequential Health Insurance Amendment (Prescribed Fees) Bill 2021 Provisions) Regulations 2021 Industry Research and Development Amendment (Industry Innovation Native Title Legislation Amendment (2021 Measures No. 1) Regulations 2021 and Science Australia) Bill 2021 Primary Industries (Customs) Charges Amendment (Cherries) Regulations 2021 Mutual Recognition Amendment Bill 2021 Primary Industries (Excise) Levies Amendment (Cherries) Regulations 2021 National Health Amendment (Pharmaceutical Benefits Transparency and Cost Recovery) Bill 2021 Privacy Amendment (Office of the National Rail Safety Regulator) Regulations 2021 Northern Australia Infrastructure Facility Amendment Renewable Energy (Electricity) Amendment (Percentages) Regulations 2021 (Extension and Other Measures) Bill 2021 Road Vehicle Standards Charges (Imposition – Customs) Regulations 2021 Private Health Insurance Legislation Amendment (Age of Dependants) Bill 2021 Road Vehicle Standards Charges (Imposition – Excise) Regulations 2021 Royal Commissions Amendment (Protection of Information) Bill 2021 Road Vehicle Standards Charges (Imposition – General) Regulations 2021 Sex Discrimination Amendment (Prohibiting All Sexual Harassment) Bill 2021 Spam Regulations 2021 Snowy Hydro Corporatisation Amendment (No New Fossil Fuels) Bill 2021 Student Assistance Regulations 2021 Special Recreational Vessels Amendment Bill 2021 Student Identifiers Amendment (Authorised Collection, Use or Disclosure— Sydney Harbour Federation Trust Amendment Bill 2021 Regional University Centres Program) Regulations 2021 Treasury Laws Amendment (2021 Measures No. 1) Bill 2021 Telecommunications Regulations 2021 Treasury Laws Amendment (2021 Measures No. 2) Bill 2021 Treasury Laws Amendment (Income Tax Assessment Repeal and Consequential Amendments) Regulations 2021 Treasury Laws Amendment (Your Future, Your Super) Bill 2021 Wool Services Privatisation (Wool Levy Poll) Amendment Work Health and Safety Amendment (Norfolk Island) Bill 2021 ■ (Implementation of Review Measures) Regulations 2021 This summary is prepared by the LIV Library to help practitioners keep informed of recent changes in legislation.
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MAY 2021 LAW INSTITUTE JOURNAL 55 courts & parliament Practice Notes
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Consumer Affairs Victoria – Guide to rental law changes in Victoria www.consumer.vic.gov.au/housing/ renting/changes-to-renting-laws/ all-changes-in-place-from-july-2020 Consumer Affairs Victoria has created a guide in response to the recent changes to Victorian rental law that came into effect on 29 March 2021. The guide discusses changes to the Residential Tenancies Act 1997 (Vic) by grouping them into categories and providing short summaries for each change. Some of the categories include starting a tenancy, living in or leaving a rental property, repairs, family violence and long-term leases. The webpage is regularly updated and provides a link to reference guides that contain more detailed information about the changes. “About the Migration Lawyers Directory” and graduates at the firm discuss dinner party all LIV accredited specialists in migration law topics and current affairs and the laws Victorian Small Business are identified. The directory is in alphabetical surrounding them. The podcasts are five Commission – Retail Leases order and provides contact details and links to 15 minutes in length and topics include Act 2003 (Vic) to individual websites. Riding with pets: Dogs and Ubers; Could your employer make you get the COVID-19 www.vsbc.vic.gov.au/your-rights-and- Australian Psychological vaccine; Voter fraud; Mining in space – one responsibilities/entering-into-a-retail-lease/ Society – Stress in the small step for man, one giant leap for . . . retail-leases-act-2003/ workplace lawyers?; Digital assets and estate planning; The Victorian Small Business Commission Who has possession of your body when you www.psychology.org.au/for-the-public/ website provides landlords and tenants with die?; and Who owns your tattoo? Psychology-topics/Stress-in-the-workplace information about recent changes to the Retail Leases Act 2003 (Vic). Information is divided Legal practitioners experience higher rates University of Sydney Law School into the following sections – changes to retail of anxiety and depression than many other – Podcasts and videos leasing, entering into a retail lease, five-year workers. The Australian Psychological www.sydney.edu.au/law/news-and-events/ waiver certificate, appointing a specialist Society website provides information on the podcasts.html retail valuer and accessing help early on. symptoms of stress – physical, psychological The webpage includes links to other pages and behavioural; causes of stress – including The University of Sydney Law School events providing additional information as well as internal stressors such as factors specific have been recorded and can be downloaded lists with contact details for readers seeking to the job and workplace relationship issues as podcasts and videos. Recent topics at assistance. and external stressors such as caring the Year in Review conference include the responsibilities or personal relationship keynote address on International Law and LIV Migration Lawyers Directory issues; treatment of stress; and seeking the case of Julian Assange presented by help. The site also provides information barrister Jennifer Robinson. Other topics www.liv.asn.au/MigrationLawyersDirectory on other psychology topics and diagnoses, included Australia’s Year in International Law; The LIV has launched the Migration Lawyers and search functions for a psychologist. International Criminal Law; and the Royal Directory, a resource for members of the Commission into Violence, Abuse, Neglect public and the legal profession. The directory McCabes Lawyers and Exploitation of People with Disability. was developed to help the general public – Trial by Podcast The recordings date back to 2017 and locate legal practitioners who specialise are listed by year. ■ in migration law and can assist with the https://podcasts.apple.com/au/podcast/ legal issues of migrating to Australia. Legal trial-by-podcast/ practitioners listed in the directory have met Produced by McCabe Curwood, this series the specified eligibility criteria listed under of podcasts presented by lawyers and
MAY 2021 LAW INSTITUTE JOURNAL 59 reviews Books
IN_PRINT This month’s books cover proportionality in constitutional law, anecdotes from legal practice, legal interpretation and contract law.
Proportionality in Australian Constitutional Law Mostly Guilty
Shipra Chordia, The Federation Press, 2020, hb $120 Michael Challinger, Hybrid Publishers, 2021, pb $35 Proportionality is capable of exciting even the most equable I’m sitting on a decrepit seat in the back of the Children’s Court of Australian constitutional lawyer. High Court Chief Justice Susan Victoria when a lawyer hands me his business card. Later, after we Kiefel is a strong proponent of proportionality and has slowly but finish our matter, an unsuccessful costs application against the police, surely been convincing her brethren of its merits. However, judicial I don’t see him again. advocates of proportionality have had to defend it from suggestions A decade later that man writes a book. It’s Michael Challinger. that it is an “exotic jurisprudential pest” imported from abroad The book is a collection of anecdotes of legal practice over the (see Murphy v Electoral Commissioner  HCA 36 at ). In past 40 years or so. Each is generally a paragraph or two spread over academia, proportionality also generates spirited debate, with some nearly 300 pages. I feel bombarded. scholars in favour of structured proportionality, others in favour of His practice has spanned the world’s stage – London, Port calibrated proportionality, and yet others against it completely. In all Moresby, Traralgon – and is now mainly focused on the criminal list of this controversy, it is easy to forget the purpose of proportionality. the Magistrates’ Court of Victoria, assault, trafficking and stealing. Shipra Chordia reminds us that proportionality is a doctrine I’m genuinely surprised and impressed that he can remember of judicial review. That is to say, proportionality is a tool to assist in detail so many matters. judges to enforce the constitutional limits of legislative and executive Some of it is uncomfortable reading for me, Chapter 13 is entitled power. Like any tool, its worth depends on what we use it for. “Greeks and Other Ethnic Clients”. This is not an isolated case. There Chordia makes a compelling case for proportionality’s usefulness is a chapter or two on the Children’s Court where I have spent the in cases concerning the implied freedom of political communication. past 10 years. Challinger says “It’s stressful, it’s demoralising, it’s In this context, proportionality arguably brings greater clarity and alienating. You wonder what the world is coming to . . . I don’t know transparency to what would otherwise be uncertain and overly how they do it. Most of us can’t stand the place”. subjective judicial value judgments. On the other hand, Chordia I read it all and pretty quickly. Barristers and solicitors of all cautions against unreasonably introducing proportionality into s92 persuasions will find this so familiar, the worn carpet, the clients jurisprudence, where a modicum of clarity was achieved in Cole and benches, so it will appeal to those and also to our friends and v Whitfield after almost a century of uncertainty. There are many neighbours. other insights packed into this slim volume, making it a welcome Tasman Ash Fleming, barrister and mediator intervention in this lively debate, albeit certainly not the last word.
Julian R Murphy, barrister
60 LAW INSTITUTE JOURNAL MAY 2021 reviews
Investigating Corruption and Misconduct in Public Office e2 Peter Hall Member: $217.80 Non-member: $242 This long-awaited Interpretation Commercial Contract Clauses: second edition Principles and interpretation reflects more than a Perry Herzfeld and Thomas Prince, 2nd edn, decade of activity by Thomson Reuters, 2020, hb $236 Joshua Thomson, Leigh Warnick and Justice commissions of inquiry and state-based crime This book is the second edition of the Kenneth Martin, 3rd edn, Thomson Reuters, 2019, commissions, as well as by governments well-received text Interpretation and Use hb $248 legislating in relation to public integrity, of Legal Sources – The Laws of Australia, In the third edition of this text the three public trust obligations and other matters. published in 2013. authors discuss, in the context of both www.liv.asn.au/PublicOfficeMisconduct Now simply titled Interpretation, this case law and legislation, the practical edition retains two of the original authors issues that lawyers need to consider when Regulation in Australia – barristers Perry Herzfeld SC and Thomas drafting and interpreting what can wrongly Prince. The book is also published as be assumed are settled standard clauses Arie Freiberg a chapter in the legal encyclopaedia, in commercial contracts. Member: $85.50 The Laws of Australia. The intent of the text as expressed in Non-member: $95 As with the first edition,Interpretation the opening chapter is “to illuminate the Regulation in Australia is a reference book spanning interpretation techniques of construction . . . and provide . . . adopts an expansive approach to government in both public law (statutes, subordinate a framework within which detailed rules may regulation, viewing it legislation and the Australian Constitution) be understood and applied”. This intent takes as an arm of public and private law (contracts, deeds etc), the form of looking at the varying judicial policy that provides an and rules of precedent. approaches, both literal and contextual, to understanding of what governments do and This edition remains relatively compact. contract interpretation and analysing the how they do it, rather than as a technical It has been restructured, making it more outcomes that flow from these. exercise in rule-making and compliance. accessible, and its scope broadened in Divided into 21 chapters, specific topics www.liv.asn.au/AustralianRegulation some aspects and reduced in others. include a discussion of clauses addressing There are new sections for private law on the creation of debt and monetary Annotated Federal Court implying terms in, and rectifying of, private obligations, joint, several and proportionate Legislation and Rules e3 legal documents. As for public law, the book liability, indemnities, consents, good faith now covers interpreting patents, industrial provisions, time stipulations, force majeure K E Lindgren, awards and agreements, and development and termination clauses. The last three D Cremean and N Cujes Member: $189 consents in planning. Significantly, an entire mentioned topics having a new significance chapter from the first edition, on international Non-member: $210 in the COVID-19 environment. Incorporating all law, has been excluded. Thankfully, the Justice James Edelman in his introduction legislative amendments new edition offsets this by retaining some speaks to the book fulfilling the three Cs up to and including discussion on how international law affects of contract law – clarity, consistency and 2 May 2019, this text the interpretation of domestic statutes. The coherence. In its use of relevant case law contains annotations to change results in the book having a more and legislation, it provides practical guidance essential Federal Court legislation, rules and forms in one concise portable volume. localised, Australian focus. on important contract construction issues, in As the preface states, the aim of the book particular, in the areas of common qualifying www.liv.asn.au/AnnotatedFederalCourt is to “state concisely what the law is”. The provisions and boiler plate clauses. Both authors have succeeded in achieving that these areas warrant much closer attention aim. Interpretation also continues to impress than they commonly receive. with its breadth of coverage. It remains an The book is a valuable resource not only for www.liv.asn.au/LawBooks invaluable resource for any Australian lawyer those commencing work in a commercial law Level 13, 140 William Street, Melbourne practising the art of legal interpretation. context but also experienced practitioners. n [email protected] Dr Bruce Chen, Deakin Law School Peter Flanagan, lawyer
MAY 2021 LAW INSTITUTE JOURNAL 61 reviews LIV Library
Family law – matrimonial property settlements – pandemics Clemente, Robert, Berger, Barry, Taylor, Stacey et al, Sound education in IN_REFERENCE family law, audio CD, Television Education Network, 2020 (ACD KN 170 C 27) Eligible LIV members may borrow library material for 21 days. Items can be CD 1: Family law report 2. The impact of COVID-19 on property settlements 3. posted or sent via DX free of charge. Material including the location REF is Family law case watch CD 2: 1. Adjusting for future needs in property settlements: time to take out the crystal ball? unable to be borrowed. Please check the library homepage at www.liv.asn.au/ library for library service updates during the COVID-19 period. Family law – parental access – child custody – international child abduction – tax disputes Clemente, Robert, Gaudion, Nick, Warnock, Beth et al, Sound education in Books, multimedia and seminar papers family law, audio CD, Television Education Network, 2020 (ACD KN 170 C 28) CD 1: Family law report 2. What the Family Court doesn’t realise about unrealised Commercial law – litigation tax liabilities 3. Family law case watch– CD 2: International parenting arrangements Bowyer, Geoff, Hopper, Sam, CB Cold Storage & implications for business lawyers and relocation disputes & commercial litigators, seminar paper, Law Institute of Victoria, LIV Education, 2020 (F KN 350 B 1) Family law – third parties and parenting orders – bankruptcy Clemente, Robert, Lahey, Lisa, Chila, Frank et al, Sound education in family law, Confidentiality audio CD, Television Education Network, 2020 (ACD KN 170 C 26) Dal Pont, GE, (2nd edn), LexisNexis Butterworths, 2020 Law of Confidentiality CD 1: Family law report 2. Can I join in? Third parties and parenting orders 3. (KM 209.P7 D 2 2) Family law case watch – CD 2: 1. When bankruptcy and family law collide Costs Land subdivision Dealehr, Cate, Shepherd, Stafford, Jackson, Rupert et al, National Costs Law Conference, Libbis, Simon, Subdivisions unpacked, seminar papers, Law Institute of Victoria, seminar paper, Law Institute of Victoria, LIV Education, 2021 (F KN 397 D 4) LIV Education, 2021 (F KN 72 L 7) Dictionaries Mental health – professionals – performance – leadership Moore, Alison, The Macquarie Dictionary (8th edn), Macquarie Dictionary Publications, Goleman, Daniel, Emotional Intelligence: Why it can matter more than IQ, 2020 (REF K 120 M 1 8) (Not for loan) Bloomsbury Publishing, 2020 (KL 96.6 G 1) Easements – estates management – alternative dispute resolution Occupational health and safety – mock trials Clemente, Robert, Townsend, Matthew, Bambagiotti, Philip et al, Sound education Jackson, Rob, Power, Charles, Kapitaniak, Aggy et al, Occupational health & safety in Victorian law, audio CD, Television Education Network, 2020 (ACD KB 105 C 29) mock trial, seminar papers, Law Institute of Victoria, LIV Education, 2019 (F KN 198 J 4) CD 1: 1. Spring Street report 2. Easements: key imperatives and latest developments (Victoria) 3. Law case watch – CD 2: 1. The wisdom of Solomon – how to ensure Retirement villages – aged care equalisation in estates – alternative dispute resolution – starting with end in mind Luarte, Michelle, Harrison, Margaret, Retirement village and aged care contracts, seminar paper, Law Institute of Victoria, LIV Education, 2021 (F KN 151.6 L 2) Electronic contracts – estate planning – testamentary trusts – personal injury – transport accident and workers compensation Sale of business – unfair dismissal – personal property securities Clemente, Robert, Argy, Philip, Braithwaite, James et al, Sound education in Clemente, Robert, Norgate, Toby, Djukanovic, Angela et al, Sound education in Victorian law, audio CD, Television Education Network, 2020 (ACD KB 105 C 27) Victorian law, audio CD, Television Education Network, 2020 (ACD KB 105 C 28) CD 1: 1. Spring Street report 2. Formation of electronic contracts: binding the parties CD 1: 1. Spring Street report 2. Selling a business - managing the back end of the in an online world 3. Law case watch CD 2: 1. Law case watch 2. What the new deal 3. Law case watch CD 2: 1. Law case watch 2. Big brother in the workplace: testamentary trust changes mean for estate planning 3. Victoria personal injury out of hours conduct in the spotlight 3. PPSA headaches in business acquisitions law update – transport accident & workers compensation Succession Family law – binding financial agreements Dal Pont, GE, Law of Succession (3rd edn), LexisNexis Butterworths, 2021 (KN 120 D 1 3) Weldon, Liz, Section 90K(1)(d) and the enforcement of financial agreements, seminar paper, Television Education Network, 2021 (F KN 170 W 9) Succession Wilson, Kathy, Rasiah, Kaplian, Dolan, Michael et al, Succession Law Intensive, Family law – disciplinary proceedings (lawyers) – parenting orders seminar paper, Law Institute of Victoria, LIV Education, 2020 (F KN 120 D 5) Clemente, Robert, Blizzard, Monica, Rubin, Melanie et al, Sound education in family law, audio CD, Television Education Network, 2020 (ACD KN 170 C 25) Wills – forms and precedents Hutley, Francis Charles, Birtles, Craig, Neal, Richard et al, Hutley’s Australian CD 1: Family law report 2. Strategy and procedure when staring down the barrel Wills Precedents (10th edn), LexisNexis Butterworths, 2021 (KN 125 H 1 10) of a disciplinary complaint CD 2: 1. Family law case watch 2. Contravention cases in family law: when parents don’t comply Workplace relations Sheridan, Kate, Knowles, Fiona, Bornstein, Josh et al, Workplace Relations Conference, Family law – legal drafting seminar papers, Law Institute of Victoria, LIV Education, 2021 (F KN 190 S 1) Young, Evelyn, In the beginning . . . drafting letters of advice in family law, seminar paper, Television Education Network, 2021 (F KN 170 Y 1) Family law – maintenance agreements – matrimonial property settlements Clemente, Robert, Wilson, Melanie, Turnball, James et al, Sound education in family law, audio CD, Television Education Network, 2020 (ACD KN 170 C 29) CD 1: Family law report 2. Making dollars and sense out of spousal maintenance CD 2: 1. Family law case watch 2. A fair share: financial resources and property settlements
62 LAW INSTITUTE JOURNAL MAY 2021 reviews LIV Library
Articles may be requested online and will be emailed to members. LIBRARY CONTACT DETAILS Bullying – sexual harassment – workplace Mazzone, Angela, O’Higgins Norman, James, “Make it stop” in Law Society Hours: 9am-5pm Gazette Ireland, vol 115 no 1, January/February 2021, pp48-51 (ID 87285) Ph: 9607 9360/1 Fax: 9607 9359 Deceased estates – testators family maintenance Email: Marks, DW, “Novel remedies for dissipation, absent notional estate” [email protected] in Australian Law Journal, vol 95, no 1, 2021, pp21-24 (ID 86267) Web: http://library.liv.asn.au DNA profiling – genetics Dale, Amy, “Cracking cold cases: is it in our genes?” in LSJ (NSW), no 74, February 2021, pp29-33 (ID 87399) Employment law – freedom of speech – termination of employment Wilson, John, Pender, Kieran, “Free speech at work: Folau, Banerji, and beyond?” LIV LIBRARY – in Ethos, iss 255, Autumn 2020, pp30-36 (ID 87185) NEW MATERIAL Files – documentary evidence To browse recent McMillan, Jen, “The power of the file note” inBalance , edition 2, 2020, pp34-35 (ID 87181) additions to the LIV Food packaging and labelling – health Library, go to Lai, Jessica C, Becher, Shmuel I, “Front-of-pack labelling and international trade law: www.liv.asn.au/ revising the Health star rating system” in Melbourne Journal of International Law, NewMaterial vol 21 no 1, 2020, pp144-189 (ID 87093) Human rights – business – slavery Gill, Abigail, Wynn-Pope, Phoebe, Gill-Herdman, Kate, “Human rights in 2021: key considerations for Australian businesses” in LSJ (NSW), no 75, March 2021, pp74-76 (ID 87401) EBOOKS AT THE LIV LIBRARY In-house counsel – legal ethics Byrne, Sarah, “Making the call from inside the house: ethics and the in-house counsel” The LIV library now has remote access in Ethos, iss 257, Spring 2020, pp26-29 (ID 87134) to selected eBooks. Lawyers – professional skills – artificial intelligence Loans are available Bremers, Ingrid, “More than a lawyer – opportunities for lawyers in the disruption to LIV members of the legal industry” in Ethos, iss 256, Winter 2020, pp46-48 (ID 87228) (excluding student members) for two Mental health – legal profession days. For more Moss, Simon, “Step up integrating emotional intelligence with professional practice” information and a list in Balance, edition 1, 2020, pp24-26 (ID 87183) of titles visit the LIV website www.liv.asn. Pandemics – immunisation au/LibraryDatabases Muldowney, Susan, “Immunity challenge” in In the Black, February 2021, pp21-25 (ID 87229) or contact the library on 9607 9360. Recruitment – videoconferencing Elias, Jason, “Six ways to ace a video interview” in Balance, edition 3, 2020, pp26-27 (ID 87107) Vicarious liability Dietrich, Joachim, Field, Iain, “Statute and theories of vicarious liability” in Melbourne University Law Review, vol 43 no 2, 2020, pp515- (ID 87096) ■
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MAY 2021 LAW INSTITUTE JOURNAL 63 practice Ethics
DEALING WITH SELF-REPRESENTED LITIGANTS A solicitor must be conscious of their competing ethical duties to the court and the administration of justice, their client and the self-represented litigant.
You act for the defendant in a civil litigation matter, and the other side While a solicitor’s paramount duty ▼ is a self-represented litigant (SRL). The SRL has prepared a statement to the court and the administration of claim. On reviewing the statement of claim you notice that the SRL of justice may result in the need for TIPS has relied on legislation that is outdated, to the advantage of your solicitors to provide some form of • Dealings with SRLs client. Should you inform the SRL of their error, even though this may procedural assistance to an SRL, the may be challenging. disadvantage your client? solicitor’s role is not to provide legal An SRL may be advice to any person other than their unfamiliar with the legal system and It is common for a solicitor to act in a matter in which they oppose an client. The solicitor may direct the SRL is not bound by the SRL. Dealings with SRLs present challenges for a solicitor, who must to seek legal advice concerning their same ethical duties be mindful of their ethical obligations pursuant to the Legal Profession matter, and additionally may encourage as a solicitor. Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic) (ASCR). the SRL to contact the court registry • A solicitor must The ASCRs contain overarching ethical obligations that a solicitor where appropriate for assistance keep top of mind must adhere to, including: regarding court forms or procedures. their paramount 3 Paramount duty to the court and the administration of justice duty to the The question answered 3.1 A solicitor’s duty to the court and the administration of justice court and the is paramount and prevails to the extent of inconsistency with A solicitor has an ethical obligation to administration any other duty. ensure that they do not take advantage of justice and their duty to act in the 4 Other fundamental ethical duties of their opponent’s error (ASCR r30), best interests 4.1 A solicitor must also: and therefore should disclose to the of the client. 4.1.1 act in the best interests of a client in any matter SRL the legislation that they seek to rely on is outdated. Further, it is considered • Courteous in which the solicitor represents the client communication professionally courteous to disclose 4.1.2 be honest and courteous in all dealings in the is key. A solicitor course of legal practice. to your opponent where they rely on 6 should ensure that When opposing an SRL, a solicitor’s paramount duty is to the court incorrect legislation. As an officer of the they communicate and the administration of justice. This duty may require a solicitor court, a solicitor has a paramount duty expectations to at times to provide a form of assistance to SRLs that may appear to the court and the administration of their client and to conflict with the solicitor’s duty to act in the best interests of their justice, so drawing the SRL’s attention set appropriate client. A solicitor additionally owes duties to their opponent, the SRL.1 to their error at first instance may assist boundaries with the SRL. Therefore, a solicitor must ensure that they do not mislead the SRL the court to deal expeditiously and justly (ASCR r22) and must not take advantage of any obvious error made with the matter. by an SRL (ASCR r30). As outlined in ASCR r4.1.2, the solicitor must LIV Ethics, Wellbeing & Practitioner behave courteously throughout the matter, even where the same Support is currently producing an ethics guideline on SRLs. behaviour may not be reciprocated. While legal processes may be The LIV Ethics Hotline assists solicitors in dealings with SRLs, second nature to a solicitor, they may be unfamiliar, frustrating and ph 9607 9336 or email [email protected]. ■ intimidating to an SRL. Carly Erwin is a graduate lawyer, LIV Ethics. It may be a difficult balancing act for a solicitor to adhere to 1. The ASCR Glossary of terms define an opponent to mean “that party, if the party is these competing ethical obligations. Guidelines published in other unrepresented” and therefore includes a self-represented litigant. Australian jurisdictions make clear that in dealings with SRLs, 2. See Queensland Law Society and LawRight, “Self-represented litigants: Guidelines for 2 communication is key to managing these conflicting obligations. solicitors”, November 2017; See also The Law Society of New South Wales “Guidelines From the outset, a solicitor must set expectations with their for dealing with self-represented parties in civil proceedings”, December 2016. client as to what their dealings with an SRL entail. The client should 3. Michelle Sharpe, “Dealing with a self-represented litigant”, 2014, 88 (04) LIJ. be advised that dealing with an SRL means that “the chances of 4. Michelle Sharpe, “Dealing with a self-represented litigant”, 2018, 38, July, Proctor 34. 5. Queensland Law Society and LawRight, “Self-represented litigants: Guidelines for settlement are diminished, the trial will likely run longer, their legal solicitors” November 2017, 5. costs will be greater and the court has a duty to assist SRLs. Clients 6. See Emirates Park Pty Ltd v Magic Millions Sales Pty Ltd  FCA 1039. should also be coached not to overreact to questions or behaviour by an SRL that might be aimed at antagonising them”.3 Further, the solicitor must ensure that they establish appropriate boundaries with the SRL.4 It is necessary for the solicitor to communicate that, while they do have various ethical obligations, STOCK ADOBE they represent only their client and will act always in their client’s bests interests.5
64 LAW INSTITUTE JOURNAL MAY 2021 practice LPLC
FIVE PRACTICE ESSENTIALS An understanding of the key areas of legal practice management is essential to provide a quality legal service.
Doing quality legal work involves a lot more than just Work ▼ knowing the law. There are many practice management Quality legal work requires systems, precedents, TIPS actions necessary to provide quality service. Effective processes and effective communication. • Providing quality communication, deadline management, people Systems include the technology and legal work requires management and record management are just some of infrastructure to operate the firm such as more than just good the basics you must perform for every client matter to hardware, software, connectivity and the skills ensure quality. legal knowledge. to effectively use these tools. It’s how you • There are An understanding of the key areas of legal practice communicate with clients, produce the work key practice management and the important things to do in each of and access third party platforms such as PEXA management those areas is essential to complement your knowledge and the courts. Your systems must be efficient, components of the law and deliver a quality legal service. The Quality reliable and secure. Fit for purpose practice that need to be Legal Practice Framework is a tool LPLC has developed management software can provide many benefits implemented to to help busy practitioners identify these key areas and as detailed in the LPLC’s Jan/Feb LIJ column provide consistent the important things to cover. “Digital Systems the New Normal”. quality legal work. The framework breaks down practice management Precedents are your tools to do the work. It’s • The five key components are into five key areas that work together to deliver quality. how you generate a volume of consistent quality governance, They are governance, engagement, work, people and work, avoid errors, increase efficiency and meet risk management. engagement client time expectations. Every matter should start management, Governance and end with a checklist, so all relevant information work systems and is collected, necessary steps identified and nothing Practitioners and firms should establish a direction with processes, people is inadvertently missed. A comprehensive advice management clear goals and objectives so they know where they are letter should be provided on every matter and and overall risk going and what they are trying to achieve. With competing using a precedent letter allows you to do this management. demands on their time, clear objectives will help them efficiently. Having precedent letters and tools like identify the important actions to focus on for the best pro forma file notes for common situations allow outcome. A clear definition of the work the firm and each individual will do is a good starting point. With defined areas of work, practitioners can focus on choosing the right clients and setting up the right tools and processes to do the job. They can also focus on developing the people skills required to produce high quality work in those specific areas of practice. Regular work in defined areas of practice also helps you identify common risk situations and practices to avoid or manage those risks. Good governance also requires an understanding of all regulatory and ethical obligations. An ethical compass is essential, as is best practice regulatory compliance – not just technical compliance. The objective should always be to do the right thing as a firm and an individual on each client matter. Engagement Every new engagement creates a new duty of care and doing an assessment of the client, the matter, and your capacity to do the work is important risk management. Not every client is the right client for you, and it’s both difficult and dangerous to take work you are not experienced in or set up to do. Even if it is the right type of client and the right work, you may not have the capacity to take it on and do it well. Follow the LPLC Engagement habit and decline if it’s not the right client, right work or right time.
MAY 2021 LAW INSTITUTE JOURNAL 65 practice LPLC
you to quickly do the work and generate written advice to clients, Risk management particularly in high risk situations. All legal work should have a risk management focus. What are the Processes should be in place and documented so everyone knows risks each client matter brings and how are you going to manage what to do, how to do it and when to do it. Consistency, even if those risks? Setting up your governance, work intake, work you work by yourself, leads to efficiency and avoids oversight. production and people, is putting the building blocks in place to Processes for critical steps such as client engagement, making file produce quality legal work. Doing all these things well, should lead notes, confirming advice in writing, data entry, cyber security and to the production of high quality work, but it is still important to be electronic funds transfer should be in writing, easily accessible and alert to risk and foster a risk aware culture. not left to chance. Sometimes things go wrong, you have a near miss, or you identify Communication is the critical connection between you and a weakness. These are opportunities to improve. Don’t be tempted to the client. You can’t be a good adviser without the skills to collect blame the client, think it’s a one-off or just bad luck. With an open and information and effectively communicate your advice to the client. honest approach take every opportunity to improve. Identify the true Communication should be appropriate for the client and their cause of the weakness and take action to rectify it. circumstances. Consider using tools like whiteboards, videos, diagrams and similar fact stories to assist the client’s understanding. Summary The golden rule is to always confirm important matters with the We know that lawyers are busy people and it’s hard to find the time client in writing. Written advice not only creates focus and clarity, to make changes, but change and continual improvement in pursuit of but also allows the client to go over the advice at their own pace high quality work is a key to success. That’s why LPLC has developed and in their own time. Where possible, give clients time to make the Quality Legal Practice Framework as a tool to help firms and important decisions. If you cannot communicate effectively with practitioners understand the key practice management components a client, you may not be the appropriate practitioner for them and and things they can implement for high quality legal work. It’s not one both parties may benefit from a change of practitioner. size fits all but takes the most relevant things and makes them fit for People purpose for your firm or individual role – doing something in each area of the framework will make an impact. Support your comprehensive Firms need people with the right skills to do the required tasks, but legal knowledge by combining it with good practice management this doesn’t just happen by itself. Firms and leaders must determine across the five areas of governance, engagement, work, people the skills required to operate the firm in accordance with the firm’s and overall risk management and it will result in the provision of business strategy. They should define the people they require, high-quality legal services. ■ prepare detailed job descriptions and actively seek people with the right skills and attributes. People performance should be measured This column is provided by the Legal Practitioners’ Liability Committee. For further information ph 9672 3800 or visit www.lplc.com.au. and accountable but supported with training, clear delegation and proactive supervision. Firm culture is an important factor that influences people performance and the behaviour and performance of the firm’s leaders is critical to a high-performance workforce.
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66 LAW INSTITUTE JOURNAL MAY 2021 practice Property
OPTION TO RENEW LEASE UPDATE The amending Act creates practical difficulties and many uncertainties.
Amendments to the Retail Leases Act 2003 (RLA) by the Retail and for the option exercise deadline to be extended until the result is Leases Amendment Act 2020 (which commenced on 1 October known. 2020) require additional information to be provided for retail leases Early market review that include an option for the tenant to take a further term. The amending Act requires notice to be given about the date The amended RLA does not specify whether this early review right is by which an option may be exercised, the amount of rent, the in addition to or instead of, a review in accordance with the terms of entitlement (provided by the amending Act) to call for an early review the lease. of the rent to market (where appropriate), a cooling off entitlement Section 28A(4) extends the deadline for the exercise of the option and changes to the most recent disclosure statement. until 14 days after the current market rent is determined. It does not The new notice must be given at least three months before the specify whether the extension only applies in the case of an early last day on which the option may be exercised. Three months is the market review. typical option exercise period so the notice will normally need to Changes to disclosure statement information be given at least six months before the end of the lease term. Updated information must be provided – including for outgoings The amending Act creates practical difficulties and (but not rent). A new disclosure statement, including the same many uncertainties. information, must also be given under s26 of the RLA not less than Option exercise deadline 21 days before the end of the current term. The prescribed form Section 28(1A)(a) of the amended RLA requires the date by which an in the Regulations has not yet been updated. option to renew may be exercised to be “set out” in the notice. Defective notice If a date is specified but the notice is served late, the option If the notice does not contain all the required information or is given exercise date is extended but does that also mean that the notice late, the option exercise period is extended until three months after is defective and needs to be replaced? Can that result be avoided a complying notice is given (s28(2) of the amended RLA). by setting out that the last date is the later of the date specified The uncertainties surrounding what is the deadline date and rent or three months after the notice is given? Would such words comply to be “set out” in the notice, make this penalty particularly onerous. with the obligation to set out the date? Notice re option to renew lease Rent amount The LIV copyright lease is to be amended by including a new form Section 28(1A)(b) of the amended RLA requires the rent for the of notice which is cognisant of but does not fully resolve, these first 12 months of the new term to be “set out” in the notice. This practical difficulties and uncertainties. ■ presents no obstacle if the rent will not change or is to be adjusted by a fixed percentage or amount. However, it is not possible under Robert Bradley is a principal lawyer at Aitken Partners and a member of the standard leases to specify an amount if the rent is to be adjusted to LIV Property Law Committee. market (which is the default position under the LIV Lease) or by CPI or by reference to turnover. Do you “set out” the rent payable if you merely state the means by which it can be determined? Do you need to insert an amount together with a reference to the means of adjustment? In the case of a market review, should the amount set out be the landlord’s estimate required to start the rent review process (see cl 11.1.2 of the LIV Lease)? Does an amount stated with nothing more, prevent a landlord from calling for eg, a market review? Should landlords now be amending leases to calculate rent reviews six or more months before the term expires? Is every existing lease providing for a market, CPI or turnover rent review on exercise of option now unenforceable in that respect? Should future leases provide for a fixed review on exercise of option and a market review for the second year of the further term? It is considered that the legislators cannot have intended that an amount be stated and be binding on the landlord despite any entitlement to review (at least where the lease provides for a market Rental review) because s28A of the amended RLA entitles the tenant within 28 days after receiving the notice to call for an early market review ADOBE STOCK
MAY 2021 LAW INSTITUTE JOURNAL 67 practice Technophile
SMARTER DRAFTER This contract automation platform assembles contracts automatically based on comprehensive and dynamic questionnaires tailored to the specific area of law.
additional guidance to the practitioner throughout the completion of the SNAPSHOT questionnaire and can thereby be a training tool for junior lawyers What is and paralegals. Smarter Drafter? A contract automation PETER MORAN Parts of the questionnaire can be sent to clients to complete their relevant platform which details and which will in turn populate generates complete contracts based on Which practitioners would find this technology useful? the contract within Smarter Drafter. populated forms Any legal practice looking to expedite its contract drafting process. This can decrease the correspondence between lawyer and client in order to What type of technology? How does it work? finalise the contract. Cloud platform Smarter Drafter has a document bank of pre-built automated Smarter Drafter is tailored to the documents and content that is pulled together to assemble laws of each state in Australia. Vendor contracts across a wide array of legal practice areas (eg, from Any changes made to the FluentDocs Pty Ltd commercial leasing to intellectual property) based on answers to the questionnaire will automatically update Country of origin comprehensive questionnaires. The questionnaires are not static, but every relevant part of the contract Australia a dynamic and intuitive workflow that ask further specific questions ensuring greater accuracy compared to Similar tech products depending on the answers given and to ensure all fields are covered. manual edits where there is a greater Josef, Settify The specificity goes well beyond details such as parties to the possibility of such updates being missed. Hot Docs contract, but to the various clause mechanisms relevant to that type Contracts Express Cost of agreement. Significant legal input has been sought in the creation Practice management of the workflows and the result is a high quality but tailored contract Pricing starts at $499.17 per month software with that is able to be generated more automatically and quickly than via a with one user. A free trial is available. precedents that can be populated through traditional drafting method, whether drafting from scratch or through Risks “cutting and pasting” clauses from other precedents. in-built fields Cyberisk, as with any cloud offering, The system is designed to deliver a complete and comprehensive Non-tech alternatives is present as regards confidential and contract at the end of the process. This sets Smarter Drafter apart Lawyer, paralegal sensitive data moving beyond a firm’s from typical precedent banks that exist within practice management More information internal systems. Smarter Drafter data is software which often merely populate matter details into the www.smarterdrafter. held in Australia in an encrypted format agreement (eg, parties, addresses, jurisdiction). Smarter Drafter com.au via Microsoft Azure servers. requires the user to understand legal concepts and answer the questions in their entirety, which is not something that could be Downsides completed by a lay person. The language and content of the contracts generated is unchangeable Benefits at the workflow level (depending on plan level, higher plan tiers come in both PDF and Word format) which limits the ability of practitioners The pre-built documents bank that Smarter Drafter generates to craft contract language to their own firm’s style and drafting contracts from is also a form of precedent bank and is therefore preferences. Contracts generated by users of Smarter Drafter will be excellent for new firms and sole practitioners who may not have their in many respects identical in content which may be a disadvantage own precedent libraries or are looking for a competitive edge based where firms are directly in competition with one another (albeit the on fixed contract pricing and responsively producing contracts. Unlike contracts will vary depending on the questionnaire answers). some triage and “bot” systems where the practitioner or firm must However, the look and feel of the contract, including branding, can create the workflow from scratch, Smarter Drafter’s processes allow be tailored to the firm’s requirements so it may only be the contract immediate productivity in generating contracts merely by answering content that will be similar across firms and clients may be less the questions. attuned to the similarities given the difference in “look and feel”. However, where practitioners want more bespoke processes, Firms are also then free to amend the agreements at their discretion Smarter Drafter also enables editing of the workflows or even the once the Smarter Drafter process is completed. ■ creation of new ones from scratch. This functionality may appeal to larger firms with greater resources and scalability that wish to create Peter Moran is managing principal at Peer Legal and founder of the Steward Guide, ADOBE STOCK ADOBE more distinctive offerings within the Smarter Drafter functionality. an online technology guide for lawyers (www.stewardguide.com.au). The platform also contains in-built guidance notes that provide context to the implications of question/answers. This provides
68 LAW INSTITUTE JOURNAL MAY 2021 practice VLSB+C
TAKE A STEP BACK Lawyers must maintain professional boundaries.
The Royal Commission into the Management of Police standards of excellence. Where lawyers have ▼ Informants made a number of recommendations relating engaged in conduct that breaches their ethical to lawyers and legal regulation. My team has been working or legal obligations by failing to maintain their SNAPSHOT closely with our partners in the profession, including the LIV, independence, we will use our regulatory powers • The Royal Victorian Bar and the Department of Justice and Community to take action. This can include imposing sanctions Commission into Safety, to implement them. on a lawyer, stopping them from engaging the Management While the Royal Commission provided a road map for in legal practice or removing them from the of Police Informants made change, we don’t need to wait for the implementation profession altogether. recommendations of the recommendations to start this process. Last year I asked former High Court justice the relating to lawyers. At the Victorian Legal Services Board and Commissioner Hon Kenneth Hayne whether he believed lawyers • Lawyers need (VLSB+C) we continue to consider the implications of the have played a part in the erosion of public trust in to consider findings and the significant failure of ethics in the conduct institutions like the justice system and, if so, what how to maintain of Nicola Gobbo acting as a police informer while working role should they play in helping to rebuild it. professional as a lawyer. He spoke of the importance of a lawyer having independence One of the most important things we as lawyers can do the courage and skills to provide “steely-eyed in relationships is to consider how to maintain professional independence in advice” to a client. He also noted that it may with clients. our relationship with our clients in light of the serious risks be incumbent on the lawyer to take one step • In May, the VLSB+C to individuals and the profession that can arise when these firmly back, to look overall at what is proposed is releasing guidance to assist boundaries begin to blur. and be prepared to say “no, you can’t do that. CPD providers to Professional boundaries, as put by the Royal Commission It’s contrary to the law”, or “well, you might do improve the delivery in its final report, are one of the keys to the effective that and it might not be a breach of the criminal of ethics education administration of justice and the reputation of the law, but I can tell you your reputation will be shot to lawyers. legal profession. if you do it”. I agree with this. It underlies why The erosion of professional boundaries can lead to it is so important that lawyers always strive to a lawyer’s independence being compromised or impact maintain their professional independence in their on their ability to act ethically and in the best interest of relationships with clients. their clients and the community. In addition to professional boundaries, the Royal An obvious example is the criminal lawyer who socialises Commission also examined how professional education with their clients, their client’s families and broader circle of supports a lawyer’s understanding of, and adherence to, friends. This behaviour is not prohibited, but can expose the their ethical duties and obligations. In May, the VLSB+C lawyer to information about potential criminal activities from is releasing guidance to assist continuing professional individuals who are not their client, and to whom they owe development (CPD) providers to improve the delivery no obligations of confidentiality or privilege. This can leave of ethics education to lawyers. This is in line with a the lawyer open to misunderstandings or manipulation. recommendation of the Royal Commission and the Or consider the lawyer who has developed a close and outcomes of our recent CPD review. The guidance will longstanding relationship with a client, where they have outline how legal ethics education should be embedded in obtained confidential information that extends beyond the four compulsory fields of CPD, including through the their client’s legal affairs, to knowledge about their client’s use of practical, scenario-based learning. In putting this personality, broader relationships and financial and business guidance together, we have consulted directly with CPD affairs. The closer a lawyer is to their client, the harder it providers to understand their approach to providing strong will be for them to maintain the level of independence and ethics education and plan to continue this conversation objectivity required to do their job effectively. through the implementation phase of our CPD review. The Royal Commission shone a light on the extreme Education in ethics is critically important to all aspects behaviour and actions of one lawyer, but has also provided of being a good lawyer. You will hear more about this in an important opportunity to talk about how all lawyers can my upcoming Commissioner Updates, along with updates do better to uphold and maintain the public’s confidence on the implementation of other recommendations. ■ in our justice system. Fiona McLeay is Victorian Legal Services Board CEO and Commissioner. While my office receives only a small number
ADOBE STOCK ADOBE of complaints about conflict of interest or failure to maintain professional independence, we are determined to ensure legal services in Victoria meet the highest ADOBE STOCK
MAY 2021 LAW INSTITUTE JOURNAL 69 practice According to merit?/Diversity
ADDRESSING DISABILITY AND JUSTICE Practitioners need to have a good understanding of accessibility resources provided by courts.
Rania Saab is a solicitor with Legal Aid NSW, and in her decade She argues that the best means of creating systemic change is working in litigation she has regularly encountered the challenges to request court adjustments if and when necessary for your client. facing someone who relies on court accessibility systems. Ms Saab This involves having a clear understanding of what your client needs is hard of hearing, one aspect of her identity that informs but does not and the best way to address these needs. “If you come across a define her work. She is passionate about creating a more accessible client with a disability, it’s very important to have that conversation system of justice and her commitment is unwavering, having with them from the outset about what they need and how we can practised in a government legal centre for 14 years and tirelessly help them. To be their advocate.” This simple act of asking questions advocated to update court processes and procedures to make the creates a relationship where clients may not have to grapple with system open and readily accessible to all. the emotional burden of disclosure. This small act of curiosity, An estimated one in six Australians are affected by hearing loss.1 in her mind, is the path to being a better ally and advocate. However, in Ms Saab’s experience, this has not influenced the If you’re thinking about how to make your practice a more inclusive way court processes unfold. She recounts stories that highlight the one, keep Ms Saab’s recommendations in mind: ask your client inconsistencies of the system and how each experience is shaped what they need, check to see if the tools and resources provided by the specific people involved and their unconscious biases. Her are adequately servicing your client, and educate yourself about the experience is, sadly, not unique. She shares the experience of a friend accessibility resources available in the courts. where the court, despite its best efforts, struggled to provide them Lawyers with disabilities overcome many barriers, and this is with the adjustments necessary to participate in a proceeding. “The only exacerbated for female lawyers or culturally diverse lawyers court didn’t know how to help them and they didn’t know what to ask with a disability. This year, Victorian Women Lawyers (VWL) for.” will introduce a Diversity in the Law series to highlight, educate Such examples highlight the need for practitioners to have a good and assist in overcoming the many barriers and stigma faced by understanding of accessibility resources provided by courts. Ms lawyers and specifically female lawyers Saab says the expectation is not for people to have answers, but to with a disability. Members of the be willing to ask questions and to better educate themselves about profession are invited to attend accessibility resources available. “It’s okay for people not to know. and hear from leaders in the We don’t expect people to know the solutions, but just to say – what profession advocating for the is it that you need?” equal participation of people The key message to emerge from our discussion is a need for with disabilities in the legal equity. Ms Saab describes the cost of not providing adjustments profession. ■ to the court experience as this: limited access to justice. “For any Samantha Gonzales is a human being, if you have to go to court for any matter, imagine how VWL Diversity and Inclusion stressful it would be. Imagine if you had a disability – how much Committee member. would that stress be exacerbated by worrying about whether you 1. Access Economics, “Listen Hear! would be able to have access to the court room?” Justice cannot The economic impact and cost of and should not be tied to whether you or a client is able to hear in the hearing loss in Australia” (2006) 9. court room. Couched in such terms, the untenability of the situation seems obvious.
COVID-19 Hub The one-stop source of information for the legal profession ADOBE STOCK ADOBE STOCK ADOBE www.liv.asn.au/COVID19
70 LAW INSTITUTE JOURNAL MAY 2021 practice Young Lawyers
Despite the legal profession no longer overtly promoting overwork, it is an unstated assumption that young lawyers will work overtime.
Invariable institutional practices within traditional law firms have and professional lives slowly began to blur, lockdown for many led to a culture that promotes unhealthy work expectations.1 started to resemble a nightmare dressed as a working holiday. It is a “discipline [so] … imbued with tradition” that it has … Traditional attitudes towards overwork are unsustainable. led to the “inertia that stymies change”.2 This is hardly a new These attitudes are unstated assumptions among almost all phenomenon. young lawyers we interviewed. While the legal profession With the mandated change to remote working during may no longer overtly promote overwork, being silent on work COVID-19, the issues of isolation and overwork did not go expectations is no better than explicitly mandating or rewarding away. Despite the newfound flexibility in working from home overwork. In an industry full of individuals that often pride and positive reports of remote success, many young lawyers themselves on working to the bone, it is not enough to merely suffered in silence. offer assistance, it needs to be actively provided. COVID-19 ushered in many benefits for our industry. A key difference between young lawyers who were adversely It allowed for flexible schedules, spurred the integration of affected by the lockdown and those able to manage, was the new legal technologies and eliminated the office commute. effective internal communication around expectations. Clear The majority of firms were found to be supportive in terms communication on expectations of young lawyers and strategies of material aids, such as providing computers, keyboards and for managing isolation is key in the development of our industry. helping workers establish their remote setup. Additionally, While the legal industry has demonstrated technological most large firms with dedicated human resources departments flexibility, the pandemic has demonstrated how much the legal were able to deliver various casual and virtual engagements profession still needs to improve. Significantly, there is now a call throughout their firms. to set clear, explicit and transparent outlines of expectations to However, without a support system regularly and casually help young lawyers in an evolving global environment. engaging with them, new graduates were more susceptible to As students, we are concerned with the lack of a response suffering the stress of the legal profession alone. Some young to the reported experiences of colleagues. By highlighting their lawyers felt their firms failed to support them on a social and experiences, we hope to inform the industry of not adequately supervisory level. A senior practitioner suggested the unusually addressing expectations of overwork and isolation leading up to high volume of meetings COVID-19 created often meant a COVID-normal. ■ supervisors were unable to properly engage with their juniors. A If you need mental health assistance contact the LIV EAP Converge 1300 687 327. senior associate in one firm said it was unjustifiable to schedule a casual conversation over small things. Anastasia Misarvidis-Tyshing is an Arts/Law student at Monash University and a part-time legal assistant. For new graduates, some imbued with imposter syndrome, admitting overwork is difficult. Many graduates did not feel Matthew Healy is a JD student at the University of Melbourne and a part-time they were able to voice grievances due to guilt fostered by the legal assistant. oversaturated job market and the competitive nature of the 1. Thornton, Margaret “Squeezing the life out of lawyers: legal practice in the profession. Without check-ins, structured and casual, young market embrace” in Griffith Law Review, vol 25 no 4, 2016, pp471-491, DOI: lawyers have suffered in isolation. 10.1080/10383441.2016.1262230, https://www.tandfonline.com/doi/pdf/10.1080/ For graduates in many firms there is the expectation of 10383441.2016.1262230?needAccess=true&. overtime. While a significant proportion of graduates are 2. “Lawyers & Robots? – Conversations Around The Future Of The Legal Industry”, Lexis Nexis, 2017, https://www.lexisnexis.com.au/en/insights-and-analysis/ contracted for manageable 40 hour weeks,3 57 per cent are research-and-whitepapers/2017/lawyers-and-robots. working 10 hours’ overtime, with 21 per cent working an extra 3. Queensland Young Lawyers, Queensland Salary and Careers Guide, Pepper 4 15 hours. It is not surprising this is leaving graduates feeling Corn Recruitment, 2019, https://peppercornrecruitment.com.au/wp-content/ overworked. While it is an honour to be a part of a rich and uploads/2019/05/QLD-LEGAL-SALARY-SURVEY-2019.pdf. long-standing profession, it is vital to realise when traditional 4. Khan, Lewis, “Study Reveals Increasing Time Demands Placed On Legal practices are stifling its progression. Professionals”, Thomson Reuters, 2013, https://legal.thomsonreuters.com.au/ about-us/news/work-hours.aspx. While we know of no firm explicitly asking young lawyers to increase their hours, many found themselves working overtime without remuneration. A small number of the lawyers interviewed were reduced to nine-or eight-day fortnights, but felt an expectation to produce the same amount of work. Several young lawyers felt obliged to miss lunch breaks, feeling the need
ADOBE STOCK ADOBE to be contactable at all times. The perception of these young lawyers was that if they weren’t seen to be working online, then they were not working. As the line between graduates’ personal ADOBE STOCK
MAY 2021 LAW INSTITUTE JOURNAL 71 career Admissions
The following people were admitted to practice as Australian lawyers and as officers of the Supreme Court of Victoria on 19 March 2021. The LIJ welcomes them to the legal profession.
ABOU-EID, Zainab GAMLATH, Hiranthika MAHMOOD SAIT, Mehnaz SAWERS, Alice AHEARN, James GAMSU, Matthew MAREI, Alaa SEGU ABDUL CADER, ALFORD, Nicola GEORGIOU, Elizabeth MARLES, Justin Kadeeja Sabeera AMMITZBOLL, Kate GEORGIOU, Nicholas MARSHALL, William SHAKER, Jane AN, Kahee GERONIMO, Benjamin MARTIN, Emilia SHARMA, Kriti ANDERSON, Caitlin GONG, Yijing MASSOURAS, Lucy SHEPPARD, Samuel ARSLAN, Suzan GOODIE, Fiona MCDONALD, Charles SINCLAIR, Lucinda BACKHOUSE, Emma GRACE, Sarah MCDONALD, Madeline SMITH, Lachlan BARAS-MILLER, Steven GRACIAS, Errol MCIVOR, Caitlin SOK, Rachnita BOLITHO, Trysten GRECH, Nathan MCKEOUGH-GREEN, Claudia STERN, Benjamin BONNICI, Stephanie GREGG, Dina MIGHELL, Jack STRATI, Rebecca BRANCATISANO, Charlotte GREGSON, Ryan MORAN, Ryan STRINGER, Mitchell BROWNSTEIN, Emily GROUNDS, Annabel MOSELEY, Elise STUBBINGS, Nathan CALLIL, Peter HANSEN, Skye NARDUZZO, Sonia TAN, Will CARMODY, John HART, William NASSIOS, Nicholas TAYLOR, Clare CAULFIELD, Brooke HE, Kanjie NATHAN, Ayesha TESHUVA, Genevieve CAWTHORN, Simon HEAP, Megan NG, Christine TILAK RAMESH, Khayshie CHAN, Geraldine HEPPER, Glen NG, Eleanor TOWNSHEND, Charlotte CHESNEY, Laura HERON, Jessica NG, Justin Yanching TRAN, Phi CHESTERFIELD, Benjamin HILL, Jason NG, Keh See TRULL, Jaime CHEUNG, Percy HOGG, Natalie NGUON, Jefferson TUITEA, Palavale CHIEW, Razhumikin HOSKING, Jared NGUYEN, Tung VENTURA, Julia CHUA, Liang Jin HOWARD, Montana NIKOLAKAKIS, Christine VISE, Zoe CHUI, Huen Hang HU, Chi Min NIXON, Monica WATTS, Jack COLE, Montague HUNT, Thomas PAPAEMMANOUIL, George WIBOWO, Chyntia COMITO, Celine JACKSON, Renee PEACE, Jade WILSON, Mitchell COOPER, Nicholas JAMES, Olivia PELHAM-THORMAN, Emma WILTSHIRE, Sarah COTTRELL, Darcy JEFFS, Brittany PERERA, Achali WONG, Elvis COUTTS, Bridget JOHNSTON, Brienna PIERORAZIO, Christopher WOOKEY, Nicholas COWELL, Julia JOHNSTON, Rebecca PITTORINO, Liam YAMANAKA, Koji COWLEY, Stephanie KAH, Nathan Wei Chun PORZ, Alex YIEK, Blanca CRAWFORD, Tessa KANG, Serah PREDIC, Deeana YIP, Juanlin CRIMMIN, Billy KAPURUBANDARA, Arachchige Ruvini QI, Bowen YU, Siyi CROCK, Hannah KEENE-MCCANN, Mason RAIKAR, Twinkle YUAN, Michelle CULLEN, Lauren KEIGHERY, Joshua RASHEED, Thaim ZAFAR, Ellaha CURTIS, Hollie KHETANI, Nisha REBBECHI, Celeste ZIA, Mary DE LA MOTTE, John KHOSHABA MASSARO, Victoria REFAAT, Soha DEANE, Jackson KIVINEN, Sarah REHANA, Bernadette DELMENICO, Samara KIZANA, Marlene REMINGTON, Courtney DEVENDRAN, Peshhalaa KLYMENKO, Nathan RICHARDS, Rebecca DUAN, Kevin LAHMY, Doron ROBERTS, Joanna DULULL, Bibi Soumaiya Amiinah LAM, Roman ROBINSON, Sharni ELHASSAN, Jenan LIAKOPOULOS, Elyse ROONEY, Angus ELLIS, Indiarna LILLY, Olivia ROUSSEL, Tess FAILI, Anahita LOOMES, Georgia RYDER, Lydia FARHAT, Nazia LOUGHNANE, Meabh SACHDEV, Nikhil FODROCY, Stephen LOWE, Seamus SAEED, Maleeha FORDHAM, Erich MA, Lin SALIH, Yasemin FRADLEY, Amelia MACPHERSON, Hannah SANDERS, Bonnie
72 LAW INSTITUTE JOURNAL MAY 2021 For more information and to register, go online at www.liv.asn.au/CPD-Networking, call 9607 9473 or email [email protected]. All events held online via Zoom unless otherwise stated.
CONFERENCES & MASTERCLASSES YOUNG LAWYERS EVENTS LAW WEEK – LIV PUBLIC EVENTS Government Lawyers Conference Financial Literacy: What is it, Unpacking the Aged Care & Mental Health Friday 18 June, 9am–4.20pm and why is it so important? Royal Commission (6 CPD Hours) Thursday 6 May, 6–7.30pm Thursday 20 May, 5–6pm (1.5 CPD Hours) Understanding When You Need an WORKSHOPS & SEMINARS How Did You Get That Job? Immigration Lawyer Not-For-Profit Law: Tips and traps Thursday 13 May, 6–7.30pm Friday 21 May, 12–1pm for commercial lawyers Tuesday 18 May, 12–2pm Helping Yourself by Helping Others Women in the Workplace: Superannuation, (2 CPD Hours) Thursday 20 May, 6–7.30pm the gender pay gap and pushing for gender equality My Practice by Design (2 parts) Friday 21 May, 1–2pm Wednesday 26 May & 2 June, 9.30am–12.30pm REGIONAL & SUBURBAN SERIES (6 CPD Hours) Succession & Practice Continuity Planning for Legal Practices Bookkeepers Trust Recording Workshop Monday 31 May, 4–5pm Thursday 27 May, 9am–12.15pm (1 CPD Hour) (3 CPD Hours)
COURSES LIV Practice Management Course Wednesday 5, 12 & 19 May, 9am–5pm (21 CPD Hours)
LIV Practice Management Course Wednesday 2, 9 & 16 June, 9am–5pm (21 CPD Hours)
PRACTICAL LEGAL PROFESSIONAL DEVELOPMENT, TRAINING & EVENTS. E T liv Advocacy
SUBMISSIONS LIV GOVERNANCE PRESIDENT Tania Wolff VICE-PRESIDENT Skilled migration: 18 recommendations Molina Asthana In a submission to the Inquiry into Australia’s Skilled Migration Program, 5TH EXECUTIVE MEMBER Tom Ballantyne the LIV has made 18 recommendations to the Joint Standing Committee EXECUTIVE MEMBER on Migration. The LIV is concerned that the skilled migration program is not currently Tom May meeting its intended objectives of attracting migrants who will make LIV COUNCIL MEMBERS a significant contribution to the Australian economy. Rebecca Alexander Rebecca Johnston-Ryan The LIV’s submission makes recommendations to increase the Caitlin Baker Rodd Levy classification of occupations under the Priority Migration Skilled Elly Blizzard John McPherson Occupation List (PMSOL), to decrease processing times, and to allow Caroline Counsel John Toohey Rachel Cox Stuart Webb a higher number of visas to be allocated for grant in the 2020-21 year Lauren Crome Kathy Wilson under the 189 Visa subclass program. Majella Foster-Jones LIV recommends Charter reform LAW ASSOCIATION PRESIDENTS In a letter to the Victorian Attorney-General Jaclyn Symes, the Ballarat & District Law Association LIV has recommended that reform of the Charter of Human Rights Toby Permezel 5329 1208 and Responsibilities Act 2006 (Vic) should remain a priority in 2021. Bendigo Law Association In July 2016, the Victorian government committed to supporting Juliana Smith 5444 1181 45 of the 52 recommendations cited in the 2015 review of the Eastern Solicitors Law Association Inc Charter. While we applaud the implementation of some of these Zubair Mian 9888 5885 recommendations, the LIV understands that many of the other Geelong Law Association reforms recommended have not yet been implemented. Molly Baulch 4243 7211 The LIV’s letter supports the implementation of the 45 Gippsland Law Association recommendations agreed to by the Victorian government in the Nicola Gilford 5174 6311 2015 review. Goulburn Valley Law Association Charles Hart 5820 0200 Voice to Parliament Mornington Peninsula Lawyers Association John Oswald-Jacobs 9225 7333 The LIV has made recommendations in a submission to the Law Council North East Law Association of Australia concerning the proposed Indigenous co-design process Amanda Toner 5752 1493 for the Voice to Parliament. North West Suburbs Lawyers’ Association The proposals discuss possible options for a constitutionally David Gonzalez 9379 7306 enshrined Indigenous Voice to Parliament. North West Victorian Law Association The LIV’s submission addresses the proposals identified in the Tyler Wolff 5021 6200 Referendum Council’s Interim Report and Discussion Paper, making Northern Suburbs Law Association several recommendations concerning the proposed national Voice Antonella Terranova 9432 0266 to Parliament. Southern Solicitors Law Association Celina Roth 9592 7744 Disability human rights framework Western District Law Association Inc The LIV has made a formal submission to the Royal Commission Jessica Dowdy 5572 1600 into Disability. Western Suburbs Law Association Danielle Leo 9334 6803 This cross-sectional submission includes input from LIV members of the Wimmera Law Association Disability, Elder, Health, Criminal, Workplace Relations, and Administrative Patrick Smith 5381 2222 and Human Rights Law Sections. It provides a journey map of how To find out more about LIV governance and representation individuals with a disability experience navigating the legal and justice or to contact LIV Council members see www.liv.asn.au system. Through these case studies it is hoped the LIV’s submission will or phone the secretary to the Council on 9607 9513 or email [email protected]. shed light on previously unheard experiences of people with a disability. ABOUT THE LIV: The LIV represents about 19,000 lawyers and people While the submission makes several specific recommendations in working in the law in Victoria, interstate and overseas. Our members offer their different areas of the law such as mental health, workplace relations, commitment, diversity and expertise to help shape the laws of Victoria and to ensure a strong legal profession for the future. The LIV promotes justice for aged care and criminal law, it’s overarching recommendation is that all advancing social and public welfare in the operation of the courts and legal system as well as advancing education and public confidence both in the legal the Commission recommend a new disability human rights framework, profession and in the processes by which the law is made and administered. As the peak body for the Victorian legal profession, the LIV initiates programs that fully incorporates the International Convention on the Rights to support the needs of a changing profession, promotes an active law reform of People with Disability (CRPD) into domestic law. ■ advocacy agenda, responds publicly to issues affecting the profession and broader community, delivers continuing legal education programs, and continues To read submissions go to the LIV website – Staying informed/Submissions. to provide expert services and resources to support our members.
74 LAW INSTITUTE JOURNAL MAY 2021 Need help resolving your ethics or legal practice concerns?
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