Legal Tweaks That Would Change NSW and the Nation

Legal Tweaks that would change NSW and the nation.

2017 Edited By Jade Tyrrell

Published By New South Wales Society of Labor Lawyers

Artistic Design By Lewis Hamilton

Cover Illustration By Linda Hoang (www.lindahoang.com)

Our Mission

The New South Wales Society of Labor Lawyers aims, through scholarship and advocacy, to effect positive and equitable change in substantive and procedural law, the administration of justice, the legal profession, the provision of legal services and legal aid, and legal education.

Copyright 2017 New South Wales Society of Labor Lawyers INC9896948. The 2017 Committee is James Mack, Rose Khalilizadeh, Janai Tabbernor, Lewis Hamilton, Tom Kelly, Kate Harrison, Kirk McKenzie, Philip Boncardo, Stephen Lawrence, Claire Pullen, Jade Tyrrell and Tina Zhou.

Disclaimer

Any views or opinions expressed are those of the individual authors and do not necessarily reflect the views and opinions of the New South Wales Society of Labor Lawyers or of the Australian Labor Party. Moreover, any organisations represented in this publication are not expressing association with the New South Wales Society of Labor Lawyers or the Australian Labor Party.

Acknowledgements

Our thanks goes to all those who contributed to this publication, and to the lawyers before them who built the modern Australian Labor Party and embedded social justice in our national identity. We especially thank our sponsors, Maurice Blackburn Lawyers, who carry on the inspiring legacy of Maurice McRae Blackburn, a champion lawyer and a federal Labor MP.

2 Legal Tweaks INTRODUCTION HEALTH & SOCIAL WELFARE

1. Foreword - Mark Dreyfus QC MP 27. Nicholas Cowdery AM QC 2. Foreword - Paul Lynch MP 28. Joe Blackshield 3. Editor’s Note - Jade Tyrrell INDIGENOUS AUSTRALIA ACCESS TO JUSTICE 29. Kathryn Ridge 4. Senthorun Raj 30. Charles Gregory 5. Stephen Lawrence 6. Stephen Dametto LABOUR LAW & STANDARDS OF CARE 7. Harry Edwards 8. Owen Nanlohy 31. Philip Boncardo 9. Aloysius Robinson 32. Penny Parker 10. Greg Jones 33. Cassandra Taylor 11. Eliot Olivier 34. Jack McNally 12. Lewis Hamilton 35. Keifer Veloso 13. James Mack 36. Justin Pen 37. Claire Pullen PUBLIC LAW 38. Aron Nielson

15. Blade Atton MIGRATION LAW

ANTI-DISCRIMINATION 39. Douglas McDonald-Norman 40. Jane Leibowitz 16. Megan Cant 41. Kirk McKenzie 17. Amy Zhang PROPERTY LAW & ANIMAL CRIME & LAW ENFORCEMENT OWNERSHIP 18. Tina Zhou 42. Michael Hall SC 19. Luke Beck 43. Evan James 20. Madeleine Bridgett 21. Maeve Curry 22. Kieran Fitzgerald 23. Rose Khalilizadeh 24. Blake Osmond 25. Amelia Birnie 26. David Rofe

3 It is a pleasure to introduce the 2017 edition of Legal Tweaks.

I congratulate the NSW Society of Labor Lawyers on this progressive publication, now in its sixth successive annual edition.

Law reform is of course a vital part of Labor tradition. It is no doubt through the indispensable hard work of lawyers and academics friendly to the Labor cause that a meaningful law reform agenda endures.

This work is perhaps even more vital given the direction of those presently in Government in Canberra. In so many important areas, law reform has ground to a complete halt during this Liberal Government. Meanwhile, the Government has attacked access to justice with cuts to Legal Aid, Community Legal Centres and other essential legal assistance services.

When we defeat this Government, it will be because we have won a contest of ideas with our conservative opponents; because we have relied on substance instead of slogans.

By consolidating a culture of ideas within Labor, and by encouraging new proposals for law reform, Legal Tweaks is a reminder of the social good that can be achieved by even small ‘tweaks’ to our laws.

I hope this edition, like its predecessors, will encourage further debate and discussion in Labor circles and beyond about the potential for law reform. I congratulate the contributors on the wide range of issues canvassed by this publication, and for reminding us of the work that lies ahead.

Mark Dreyfus QC MP Foreword Federal Shadow Attorney-General Foreword MARK DREYFUS QC MP Member for Isaacs

1 I’m delighted to be able to provide a Foreword to this edition of Legal Tweaks by NSW Labor Lawyers.

Labor cannot be satisfied to merely occupy ministerial benches. If elected to Government, Labor wants to reform and progress. That has always been the hallmark of successful Labor Governments.

To do that, we need a culture of debate, discussion and intellectual endeavour. Legal Tweaks is part of that culture. Since Forewordthe reestablishment of Labor Lawyers in PAUL LYNCHthe MP wake of the 2011 state electoral defeat, the Society has been a fruitful source of discussion, policy proposals, suggestions and ideas. This has made a tangible contribution to the reinvigoration of NSW Labor and helps to prepare the basis for a successful period in Government if we are elected in 2019. The broad range of contributors and contributions has always been commendable.

I’d like to thank the Editor of Legal Tweaks and the Society members involved in the preparation of this year’s edition. It is part of the tradition of progressive reform and advocacy that represents the best of Labor.

Paul Lynch MP NSW Shadow Attorney-General Member for Liverpool

Foreword INTRODUCTION PAUL LYNCH MP

2 As progressive lawyers, it is incumbent upon us to promote law reform that is geared towards improving fairness and equality in society.

This is why Legal Tweaks, now in its sixth year, is such an important platform for advocacy by members of Labor Lawyers and non-members who wish to contribute their proposed ‘tweaks’ to improve the law. Legal Tweaks aims to generate healthy debate around a wide variety of issues to achieve a common purpose: change that advances our society.

It has been a pleasure to edit this publication. The quality and diversity of the tweaks in this year’s edition is truly impressive. They are a testament to the strength of this Society and its supporters. I hope you enjoy reading these submissions as much as I have enjoyed collating them.

With a looming federal election and Turnbull’s tenuous hold on power in Federal Parliament, it is more important than ever for Labor, Labor Lawyers and the legal profession to be advocating for progressive policies and law reform, in a manner that is thought-provoking and well- informed.

I hope to see some of these proposed tweaks reach the floor of Parliament, as we have already seen with some notable contributions in the past.

I sincerely thank everyone who has contributed to this year’s edition of Legal Tweaks. The importance of your contributions extends beyond this publication. I encourage you to keep up the good fight for the change you INTRODUCTION want to see.

Jade Tyrrell Editor’s Note 2017 Legal Tweaks Editor Jade Tyrrell

3 Senthorun Raj LECTURER IN LAW, KEELE UNIVERSITY

If you could change one (Stage Two), unless they could demonstrate particular section or regulation, that they were competent enough to consent. But, the Family Court would still have what would it be? to measure their competence. Either way: trans young people who wanted hormones Australia must legislate so that trans young had to go to court. people can access greater medical support without having to get approval from Legal processes generate enormous fi- the Family Court of Australia. nancial, physical, social, and psychological costs. The Family Court has approved ev- Why does this section or ery application it has received on this issue regulation need to be changed? and urged legislative reform. Trans young people should be able to get the treatment Many trans young people (those who iden- they want, in consultation with their guard- tify with a different sex to the one they were ians and doctors, without courts getting in assigned at birth) get medical support to the way. affirm their gender identity. Unfortunately, common law requires that these minors go to court before a doctor can undertake “spe- The Family Court cial medical procedures”. This applies even when both clinicians and parents support a has approved every young person’s request for treatment. application it has

In 2013, the Family Court of Australia modi- received on this issue fied an earlier decision to hold that doctors and urged legislative could prescribe puberty blockers (Stage One) to trans minors without going to court reform. but a trans minor would still require court ACCESS TO JUSTICE TO ACCESS authorisation to get hormone treatment “

4 Stephen Lawrence BARRISTER, SIR OWEN DIXON CHAMBERS & FORMER PRINCIPAL SOLICITOR, DUBBO ALS

If you could change one the ‘judicialisation’ of summary justice by re- particular section or regulation, placing magistrates of the current Local Court with judges of a new Local Court of NSW. what would it be?

I would repeal the Local Court Act 2007 The next Labor (NSW), abolish the Magistracy and replace “ the existing summary justice system with government should a modern, properly resourced and fairly continue the functioning, equal justice system. ‘judicialisation’ of Why does this section or summary justice... regulation need to be changed? Magistrates should become judges of The summary jurisdiction of the NSW judi- equal, but different, stature to judges of the ciary has a long and troubled history. Be- District Court and be remunerated accord- ginning with the landed ‘convict magistra- ingly, while maintaining a proper judicial cy’, through to the modern day of judicial hierarchy. Rotation between the two courts independence under statute, the continu- should be considered to encourage com- ous reality has been inadequate resourcing mon behavioural norms.

ACCESS TO JUSTICE of the summary justice system in NSW. This legislative reform should be accompa- The Wran Labor Government took import- nied by the replacement of Police Prosecu- ant steps to guarantee summary judicial tors with prosecutors from the Office of the independence and drag the Local Court DPP. Rigorous monitoring of resource allo- into the modern era, but important work cation and justice outcomes should take remains to be done. place to weed out the various ‘postcode’ and other inequities that currently bedevil The next Labor government should continue the summary justice system.

5 Stephen Dametto DETECTIVE SUPERINTENDENT, AUSTRALIAN FEDERAL POLICE

If you could change one O’Brien v Warden (1981) 54 FLR 16 at 20). particular section or regulation, However, in other cases there seems to be support for a less prescriptive definition what would it be? of “vote” including only the marking of an elector’s name off the electoral roll and the It is an offence to intentionally vote multiple receipt of ballot papers: Rowe v Elector- times in elections, but the term “vote” is not al Commissioner (2010) 243 CLR 1 at 39; defined in the Commonwealth Electoral Holmdahl v Australian Electoral Commis- Act 1918 (Cth) (“Act”). A definition in the Act sion (No 2) (2012) 277 FLR 101 at 124. would clarify the evidence necessary to prove the offence. A clear definition Why does this section or “ regulation need to be changed? of what constitutes a “vote” in the Section 339(1C) of the Act provides that “A person commits an offence if the person legislation is needed... intentionally votes more than once in the same election”. A number of sections in the Act seek to describe requirements for A clear definition of what constitutes a validly casting a vote in elections for the “vote” in the legislation is needed to assist Senate and the House of Representatives. those investigating the offence of multiple The effect of these sections seems to be voting and to clarify the evidentiary require- that, for a person to “vote”, they must mark ments to satisfactorily prove the offence,. a ballot paper in the manner prescribed. The successful investigation of these of- There is also common law authority which fences encourages faith in our electoral indicates that voting requires marking and system and therefore our democracy. submitting a ballot paper: Evans v Crich- ton-Browne (1981) 147 CLR 169 at 208; JUSTICE TO ACCESS

6 Harry Edwards REGISTERED FOREIGN LAWYER, FREEHILLS

If you could change one Defendants must still meet existing means particular section or regulation, and merits requirements. However, the means test is so low that a person who what would it be? fails the means test simply cannot afford a lawyer. In terms of merits, legal aid is nev- I would amend the policy introduced by er available for matters which do not have Legal Aid NSW affecting the availability of possible prospects of success. legal aid for defended hearings in the Local Court. This policy remains in force and its exis- tence risks innocent but unrepresented Why does this section or people being wrongly convicted or pun- regulation need to be changed? ished beyond what is fair because they fail to mount a defence. In NSW, 90% of On 4 November 2013, Legal Aid NSW intro- criminal matters are finalised in the Local duced a defended hearing policy, where le- Court. Even if a person is not at risk of im- gal aid will be refused for those who plead prisonment, a criminal record will make fu- not guilty in the Local Court, unless there is ture employment and travel more difficult. a real possibility of a term of imprisonment In addition to this, being subjected to an or if certain exceptional circumstances exist. unjust process threatens to alienate them This was justified on the basis of budgetary further from the community.

ACCESS TO JUSTICE pressure placed upon Legal Aid NSW. This policy should be reversed immediate- Imprisonment in this context includes full- ly, and sufficient funding must be provided time incarceration, suspended sentences, to Legal Aid NSW to provide support to intensive correction orders, home deten- those in need of assistance. tion or community service orders. “Excep- tional circumstances” include matters such as where the applicant is a child or if they have a psychiatric condition.

7 Owen Nanlohy LAWYER, PIPER ALDERMAN

If you could change one particular section or regulation, ...the purpose of this what would it be? reform can be justified There is a degree of uncertainty regard- by the increasing ing whether or not a common law tort for need to protect breach of privacy is recognised by Austra- lian law. A Commonwealth statutory cause individual privacy in of action for breach of privacy is a necessary and desirable reform in order to clarify an age where social the position. media and digital

Why does this section or communication are regulation need to be changed? ubiquitous.

Following the decision of High Court of “ Australia in Australian Broadcasting Corpo- If the uncertainty surrounding the exis- ration v Lenah Game Meats Pty Ltd (2001) tence or otherwise of this tort were not rea- 208 CLR 199, and the decision of the Vic- son enough to develop a statutory cause torian Court of Appeal in Giller v Procop- of action which covers the field, then the ets (2008) 24 VR 1, there remains an open purpose of this reform can be justified by question regarding whether or not these the increasing need to protect individual cases have provided a foundation for a privacy in an age where social media and cause of action in unjustified intrusion digital communication are ubiquitous. upon personal privacy, beyond the liability which may be found for equitable breach of confidence. ACCESS TO JUSTICE TO ACCESS

8 Aloysius Robinson SOLICITOR, BLAIR CRIMINAL LAWYERS

If you could change one been that “a bill has not yet been settled”. particular section or regulation, Judges can admonish and chastise, but they have no practical tools in the legis- what would it be? lation to sheet home responsibility to the laggards. I would insert a provision into Part 3, Chap- ter 3 of the Criminal Procedure Act 1986 (NSW) to introduce a power to award costs ...a remedy must on adjournment in the District Court. be made available Why does this section or to incentivise the regulation need to be changed? efficient conduct of When an indictable matter is at the com- matters... mittal stage in the Local Court, there is jurisdiction for a magistrate to award costs “ on adjournment to one party on the basis Delay within the Office of the Director of of “unreasonable conduct or delay” of the Public Prosecutions is being made a neg- other party: Criminal Procedure Act 1986 ative externality, and a remedy must be (NSW), s 118. Once the matter progresses made available to incentivise the efficient

ACCESS TO JUSTICE to the District Court there is no provision to conduct of matters so that defendants can remedy delay. at least take their place in the long queue for the final resolution of their proceedings. I have not had a single matter in 2017 ar- raigned and have a date set for sentence or trial on its first listing in any District Court this year. I understand that is a widespread common experience. The almost sole and invariable reason in my experience has

9 Aloysius Robinson Greg Jones SOLICITOR, BLAIR CRIMINAL LAWYERS BARRISTER

If you could change one particular section or regulation, [Open justice] needs what would it be? to be balanced with Amend the Crimes (Domestic and Person- an indivudal’s right to al Violence) Act 2007 (“DPV Act”), s 45, so that proceedings for an interim or final ap- privacy... prehended domestic violence order under the DPV Act are closed to the public and to prohibit publication of such proceedings “ except where the Court orders otherwise In too many cases it can be argued any on public interest grounds. public interest in the reporting of such proceedings can be overshadowed by sen- Why does this section or sational media reporting, which gives the regulation need to be changed? public a provocative but not a representa- tive perspective of domestic violence. Al- This proposed amendment is modelled on though it can be argued open justice is one the Queensland Domestic and Family Vio- of the most fundamental aspects of the lence Protection Act 2012, ss 158 and 159. system of justice in Australia, this needs to For too long in New South Wales, domestic be balanced with an individual’s right to pri- violence proceedings under the DPV Act vacy, particularly in relation to a former or have been subjected to intrusive reporting existing domestic relationship. The risk of by the media. If the above amendment had parties, especially the victim, having their been enacted in New South Wales, it is less dignity unfairly impugned by incorrect or likely that a court would permit either the unnecessarily embarrassing media cover- opening or publication of these types of age is too great under the current law. proceedings. ACCESS TO JUSTICE TO ACCESS

10 Eliot Olivier CLASS ACTION LAWYER

If you could change one particular section or regulation, Percentage-based billing also gives clients certainty about legal costs, offers a cost-ef- what would it be? fective alternative to litigation funding, and aligns lawyers’ incentives with their clients’ I would amend the Legal Profession Uni- and the community’s interest in the effi- form Law (NSW) (“LPUL”) to lift the ban on cient resolution of disputes. lawyers charging contingency fees, with safeguards for vulnerable clients. Many individuals and Why does this section or small businesses in regulation need to be changed? Australia are denied The LPUL prohibits lawyers from charging fees calculated by reference to a percent- access to justice age of what the client recovers, i.e. contin- because they do gency fees. The ban is out of step with similar jurisdictions in the UK and Canada, and not qualify for legal lifting it is in the interests of justice. aid, but cannot

ACCESS TO JUSTICE Many individuals and small businesses in afford their own Australia are denied access to justice be- representation. cause they do not qualify for legal aid, but cannot afford their own representation. “ Contingency fees would improve access The changes should include safeguards for to justice for this ‘missing middle’, by pro- vulnerable clients: caps on maximum per- viding a means for lawyers to represent centages for non-corporate clients; and re- clients in meritorious claims that are other- taining the prohibition on contingency fees in wise not commercially viable. criminal, immigration and family law matters.

11 Eliot Olivier Lewis Hamilton CLASS ACTION LAWYER LAWYER, MAURICE BLACKBURN

If you could change one activity that has such a significant bearing particular section or regulation, on access to justice - would be consistent with the nature of the existing exemptions. what would it be?

I would add a “Division 8 - Pro Bono Legal Services” to Part 4 of the Payroll Tax Act Granting a tax “ 2007 (NSW) (“the Act”) to make wages paid exemption for pro to legal practitioners conducting pro bono work (for the duration of that work) exempt bono legal work... wages under the Act. would be consistent Why does this section or with the nature of the regulation need to be changed? existing exemptions.

Part 4 of the Act already provides payroll tax exemptions for wages paid to employ- Providing a payroll tax exemption indexed ees engaging in volunteer fire fighting and to the number of pro bono hours worked emergency service work; to health care by legal practitioners during the relevant service providers; and to workers in prima- taxation period would be a much-need- ry and secondary education. There is an ed incentive for law firms in NSW to com- acceptance that these activities are for the mence (or expand) their pro bono prac- public good and should not be punished tices. It would assist further in closing the by the imposition of costly payroll tax. gap between those who can afford legal services and those who cannot. In particu- Despite the clear “public good” afforded by lar, it would incentivise pro bono assistance pro bono legal assistance, it is not present- for cases that are not suited to condition- ly considered part of this group. Granting a al costs arrangements such as petty fines tax exemption for pro bono legal work - an and minor offences. JUSTICE TO ACCESS

12 James Mack BARRISTER, LEVEL 22 CHAMBERS

If you could change one scheme would be complicated by issues particular section or regulation, relating to Federation. However, it would be in the interests of both state and federal what would it be? governments to give effect to the scheme as it may provide another source of fund- I would amend the law so as to give effect ing for the community legal sector to carry to an Australian version of s 194 of the Legal out their important work which contributes Services Act 2007 (UK), which empowers a to the proper functioning of society. court to make a pro-bono costs order.

Why does this section or ...it would be in the regulation need to be changed? interests of both The UK pro-bono costs order scheme ap- state and federal plies to civil proceedings where a party is represented by a lawyer who provides their governments to give service free of charge, in whole or in part. If effect to the scheme the pro-bono party is successful, the court may make what is known a “pro-bono costs as it may provide order” which is, in effect, an order requiring another source ACCESS TO JUSTICE the unsuccessful party to pay the costs of the pro-bono party to a “prescribed char- of funding for the ity”. The prescribed charity in the UK is the “Access to Justice Foundation” which community legal “distributes the money to agencies and sector... projects that give free legal help to those in need”. “

In Australia, the implementation of such a

13 James Mack BARRISTER, LEVEL 22 CHAMBERS

Labor Lawyers have shaped Labor’s history since 1890. Join today: nswlaborlawyers.com/join.

14 Blade Atton Megan Cant LAW STUDENT, UNIVERSITY OF SYDNEY

If you could change one parable jurisdiction under s 75(v) of the particular section or regulation, Constitution (which applies to decisions of officers of the Commonwealth). Another what would it be? anomaly is the ADJR Act’s maintenance of the vice-regal exception to judicial review, I would amend s 3(1) of the Administrative abolished at common law. Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) by expanding the definition of a “decision”. ...the ADJR Act lags “ Why does this section or behind common law regulation need to be changed? judicial review. The ADJR Act’s overarching aim was to simplify and codify the process of judicial review by ameliorating the complexities of Precisely what an amended ADJR Act the common law remedial system. Follow- would look like has been subject of debate ing the decisions in Griffith v Tang (2005) since the Administrative Review Commis- 221 CLR 99 and NEAT Domestic Trading sion’s 1989 report into that issue. But re- Pty Ltd v AWB Ltd (2003) 216 CLR 277, what form is certainly needed if the ADJR Act is constitutes a decision made “under an en- to reach its potential as the premier mech- actment” has become unduly technical, re- anism for judicial review.

PUBLIC LAW viving the complexities associated with the prerogative writs.

At the same time, the ADJR Act lags behind common law judicial review. The restrictive formula of “under an enactment” is significantly narrower than the High Court’s com-

15 Megan Cant LAW STUDENT, UNIVERSITY OF SYDNEY SENIOR EMPLOYMENT & SAFETY LAWYER, STEVENS & ASSOCIATES LAWYERS

If you could change one which a physical attributes protection should particular section or regulation, be addressed in other areas of life and what should be the test for determining the partic- what would it be? ular conduct which constitutes discrimination on the basis of a physical attribute, I suggest I would like to see s 4 and Part 4A “Discrimi- that it is time to include such protection in the nation on the Ground of Disability” in the An- area of employment because there is simply ti-Discrimination Act 1977 (NSW) (“the Act”) ex- no reason to treat another person differently at panded to include physical attributes (such as work on the basis of their physical appearance height and weight) in the area of employment. and the consequences of such discrimination can be devastating for the victims. Why does this section or regulation need to be changed? ...there is simply no Part 4A of the Act prohibits discrimination reason to treat another against a person on the grounds of disability in particular areas of life. The Act provides person differently welcome and necessary protection against at work on the basis unlawful discrimination for people who may be more vulnerable than others. However, un- of their physical like in Victoria, discrimination on the basis of physical attributes does not receive such pro- appearance and the tection. In an age where bullying in the work- consequences of such place is arguably not adequately addressed in legislation, and in a diverse and growing discrimination can be society, it is necessary to fully include all willing devastating for the participants in working life and to afford them victims. protection and fair treatment. Whilst further ANTI-DISCRIMINATION research is needed to determine the extent to “

16 Amy Zhang SENIOR ASSOCIATE, HARMERS WORKPLACE LAWYERS

If you could change one There is no rational basis for retaining the particular section or regulation, cap in circumstances where: what would it be? • The NSW Civil and Administrative Tribunal assesses loss and awards damages in ac- Section 108 of the Anti-Discrimination Act cordance with established authority; and 1977 (NSW) limits the quantum of damag- the quantum of the cap is artificial and has es awardable in NSW anti-discrimination no logical connection to the loss and dam- claims to $100,000. I would amend section age actually suffered by a claimant; 108 to remove the damages cap.

Why does this section or • there has been judicial recognition at all levels that damages in discrimination claims regulation need to be changed? need to increase in line with community expectations; and The effect of the statutory damages cap is that those persons in NSW who are unable to access the federal anti-discrimination • the federal anti-discrimination regime and regime will be limited to making discrimi- the majority of other state anti-discrimina- nation claims under the NSW anti-discrimi- tion regimes do not provide for any caps on ANTI-DISCRIMINATION nation legislation, and will be consequently damages awardable. limited in the damages they can obtain, irrespective of the loss they have actually Section 108 should be amended such sustained. This is an unsatisfactory and un- that the NSW anti-discrimination regime fair outcome, particularly when compared becomes an uncapped damages regime, to the position in the majority of other Aus- consistent with the majority of other juris- tralian states, where no monetary cap on dictions in Australia. damages exists.

17 Amy Zhang Tina Zhou SENIOR ASSOCIATE, HARMERS WORKPLACE LAWYERS LAW STUDENT, UNIVERSITY OF NEW SOUTH WALES

If you could change one The Western Australian Inspector of Cus- particular section or regulation, todial Services found that the regime in the Act discriminates disproportionately against what would it be? Indigenous Australians and women. Of the 1,358 people who entered prison as a result The Fines, Penalties and Infringement No- of fine defaults, 43% were Indigenous. In- tices Enforcement Act 1994 (WA) (“the Act”) digenous people only make up 3.6% of the should be amended to end incarceration population of Western Australia. Additional- for unpaid fines, especially as a result of ly, between July 2006 – March 2015, 64% of trivial offences. incarcerated fine defaulters were Indigenous females, and 73% were unemployed women. Why does this section or regulation need to be changed? Western Australia’s current practice of incarceration for trivial offences punishable by In New South Wales, our laws were fines also conflicts with the findings of the changed in 1987 so that prison was no Royal Commission into Aboriginal Deaths in longer an option for fine defaults after an Custody, which included a recommendation incident at Long Bay prison where a teen- to remove imprisonment for trivial offences. age inmate had been locked up due to his inability to pay a parking fine. Little benefit is derived by the community from the incarceration of indigent fine de- However, in Western Australia, approximately faulters or those unable to pay. In October 1,000 people are jailed every year for unpaid 2017, the United Nations Human Rights Com- fines. The stark reality and complete tragedy is mittee conducted a review of Australia’s hu- that it has taken a 2016 Coronial Inquest into the man rights compliance and suggested that death in custody of a young 22 year-old Indig- these fine default laws should be abolished. enous woman, Ms Dhu, whose fine escalated Given the domestic and international outcry from $200 to $3622, to force the Western Aus- in response to this regime, the Western Aus-

tralian Government to consider reform. tralian Government should take action. ENFORCEMENT CRIME & LAW

18 Luke Beck SENIOR LECTURER IN CONSTITUTIONAL LAW, WESTERN SYDNEY UNIVERSITY

If you could change one religious orthodoxy (correct belief) and particular section or regulation, religious orthopraxy (correct behaviour). Those who do not conform technically still what would it be? face the threat of criminal punishment. This is not a proper role for the law. I would change s 574 of the Crimes Act 1900 (NSW). The section permits prosecutions for blasphemy where a person engages in “scoffing” at Christianity. The The law should not play section should be changed to abolish the favourites between offence of blasphemy. religions. Why does this section or regulation need to be changed? “ The United Nations Human Rights The crime of blasphemy is wholly Committee has also explained that inconsistent with a secular and religiously blasphemy laws and other laws prohibiting CRIME & LAW ENFORCEMENT diverse Australian society. displays of lack of respect for a religion are inconsistent with the right to freedom of The crime of blasphemy gives official thought, conscience and religion, which, preference to Christianity over other as a signatory to the International Covenant religions, since it is lawful to scoff at other on Civil and Political Rights, Australia is religions. The law should not play favourites supposed to protect. between religions.

While there have been no recent prosecutions under this law, its presence on the statute book nevertheless still involves the state endorsing and enforcing

19 Madeleine Bridgett BARRISTER, 6 ST JAMES HALL CHAMBERS

If you could change one In Australia, the right to a fair trial was de- particular section or regulation, scribed as “a central pillar of our criminal justice system” in Dietrich v The Queen what would it be? (1992) 177 CLR 292. In China, prisoners of conscience are not afforded this basic I would amend the offences of organ traf- human right, and are subjected to cruel, ficking in Division 271 of the Criminal Code inhuman and degrading treatment, often Act 1995 (Cth) so the laws have extraterrito- resulting in death. rial application. Why does this section or Australia must... regulation need to be changed? amend its laws to It was officially acknowledged in 2005 that address organ executed prisoners were harvested for their organs in China, as a means of supplying a trafficking which vast and lucrative organ transplantation in- occurs overseas. dustry. There is now compelling evidence that organs are also sourced from prison- “ ers of conscience, including Falun Gong As China is a neighbouring country of Aus- practitioners, who are detained in labour tralia, and the demand for organs is high, camps due to their religious and spiritual Australians may be at risk of participating in beliefs. Extrajudicial killings for organ pro- organ trafficking. Australia must therefore curement, and the systematic, forced and amend its laws to address organ trafficking state-sanctioned organ trafficking in Chi- which occurs overseas. na, are serious human rights violations and breaches of international law. CRIME & LAW ENFORCEMENT CRIME & LAW

20 Maeve Curry Kieran Fitzgerald BARRISTER, SIR OWEN DIXON CHAMBERS FEDERAL PROSECUTOR, COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

If you could change one the amendment of sub-section (6), to the particular section or regulation, extent that it refers to those provisions. what would it be? The High Court has emphasised that two- stage sentencing, where objective factors The Crimes (Sentencing Procedure) Act and then subjective factors are considered, 1999 (NSW) (“Sentencing Act”) provisions, is an erroneous approach and contrary specifically sections 54A(2) and 54B(3), (5), to the instinctive synthesis in sentencing. and (6), which were inserted to ‘clarify’ how These principles are reflected in sections the standard non-parole period (“SNPP”) is 44(1) and 54B(2) of the Act; the SNPP that is to be applied in sentencing. set is what the Court concludes, in all of the circumstances and having regard to all the Why does this section or elements of punishment, ought to be the regulation need to be changed? minimum period of actual incarceration the offender must spend in full-time custody. Section 54A(2) has been interpreted as a clear attempt to legislate what the High In light of the SNPP definition provided by s CRIME & LAW ENFORCEMENT Court said In Muldrock v The Queen (2011) 54A, the content of s 54B(3) and the corre- 244 CLR 120 at [27]. The SNPP therefore sponding provision for aggregate sentences represents the NPP for an offence that is in under (5) is not only futile, it also invites an erro- the middle of the range of seriousness, tak- neous approach to sentencing. ing into account only the objective factors affecting the relative seriousness of that offence. A helpful tweak to this provision would be an explanation of what “objective factors” means in this context.

Section 54B ought be tweaked by the removal of sub-sections (3) and (5) and by

21 Kieran Fitzgerald BARRISTER, SIR OWEN DIXON CHAMBERS FEDERAL PROSECUTOR, COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

If you could change one mum sentence might have on them. particular section or regulation, what would it be? The use of mandatory I would repeal s 25B of the Crimes Act 1900 minimum sentences (NSW) (“Crimes Act”): Assault causing death when intoxicated—mandatory minimum has no place within the sentence. criminal justice Why does this section or system. regulation need to be changed? “ The use of mandatory minimum sentenc- The so-called “one-punch” laws were in- es has no place within the criminal justice troduced amidst a tabloid media-induced system. It removes the discretion of judges moral panic in early 2014. The offences they to deal with individual cases based on their purport to cover were already punishable own subjective features, and can lead to under existing laws dealing with murder and perverse outcomes far removed from the manslaughter in the Crimes Act. The added intention of the legislation. The real motive fault element of intoxication of the offender for the legislation is clear: mandatory mini- does not heighten the seriousness of the mum sentences are better at creating head- offence, and should not be an aggravating lines for politicians than they are at reducing factor in determining an individual’s culpa- crime. bility.

Such provisions do not work as a deterrent for violent crimes. People involved in drunk- en violence late at night are unlikely to think

about the impact that a mandatory mini- ENFORCEMENT CRIME & LAW

22 Rose Khalilizadeh Blake Osmond BARRISTER, FORBES CHAMBERS LAW STUDENT, UNIVERSITY OF NEW SOUTH WALES

If you could change one breach by using drugs. There may not be particular section or regulation, “good reasons” for excusing their breach in these circumstances. what would it be? A common view adopted by some courts is I would amend s 98(3)(b) of the Crimes that drug use is a choice, and therefore “good (Sentencing Procedure) Act 1999 (NSW) to reasons” do not exist. There are also related clarify and extend the definition of “good consequences (such as missing appoint- reasons” for excusing a breach of a sus- ments with Community Corrections). How- pended sentence. ever, that same offender may engage in rehabilitation subsequent to the breach, move Why does this section or to a drug-free residence, or obtain custody of regulation need to be changed? children. The law as it stands makes it difficult for the court to take those steps into account The Crimes (Sentencing Procedure) Act when determining whether or not good rea- 1999 (NSW) allows a breach of a section 12 sons exist to excuse the breach. good behaviour bond to be excused when CRIME & LAW ENFORCEMENT there are “good reasons for excusing the offender’s failure to comply”. The Court of A common view Appeal in DPP v Cooke & Anor (2007) 168 A adopted by some “ Crim R 379; [2007] NSWCA 2 clarified that the assessment of “good reasons” is at the courts is that drug use time of the breach. is a choice... This could result in offenders facing a heightened risk of imprisonment, even This amendment would ensure that the when they have taken significant steps to justice system properly acknowledges, en- engage in rehabilitation since the breach. courages and prioritises long-term rehabili- For example, an offender may cause a tation over unnecessary punishment.

23 Blake Osmond BARRISTER, FORBES CHAMBERS LAW STUDENT, UNIVERSITY OF NEW SOUTH WALES

If you could change one Despite recent studies which suggest particular section or regulation, “stealthing” is increasingly becoming a trend amongst young people, there are currently what would it be? no provisions within the Crimes Act which address the removal of a condom during The insertion of a subsection (4)(e) into s 61HA sexual intercourse without the knowledge of the Crimes Act 1900 (NSW) to expressly of the other party. provide that the non-consensual removal of protection during sexual intercourse negates While academics have suggested the consent. non-consensual removal of a condom during sexual intercourse amounts to sexual Why does this section or assault, the law remains ambiguous. There is regulation need to be changed? no evidence of any successful prosecutions in NSW for stealthing offences to date. The non-consensual removal of a condom during sexual intercourse, more colloquially Legal systems around the world are increas- known as “stealthing”, exposes victims to ingly making attempts to grapple with this sexually-transmitted infections and unwant- complex problem. For example, Switzerland ed pregnancies. It is also a severe breach of recently became one of the first countries to trust, bodily autonomy and sexual agency. impose a sentence on a man for removing a condom during sex without informing his partner. There is no evidence “ This proposed tweak is designed ensure the of any successful law with respect to this issue is unambigu- prosecutions in NSW ous in NSW. It would send a strong message to perpetrators: the non-consensual remov- for stealthing to date. al of a condom during intercourse trans-

forms consensual sex into sexual assault. ENFORCEMENT CRIME & LAW

24 Amelia Birnie David Rofe JURIS DOCTOR STUDENT, UNIVERSITY OF SYDNEY SOLICITOR, ABORIGINAL LEGAL SERVICE (NSW/ACT)

If you could change one hey J stated (at 355-356) that the words ‘or- particular section or regulation, dinary person’ could not be divorced from ‘in the position of the accused’ without “un- what would it be? mistakeable and unambiguous language”. This cannot be satisfied by the mere re- I would amend s 23(2)(d) of the Crimes Act moval of words. 1900 (NSW) to expressly include a subjective element in the ordinary person test for the partial defence of extreme provocation. ...Gummow J warned... Why does this section or [a purely objective regulation need to be changed? ordinary person test]

The then Attorney-General Brad Hazzard would undermine the said in his Second Reading Speech for principles of equality the Crimes Amendment (Provocation) Bill in 2014 that the removal of the words “in before the law... CRIME & LAW ENFORCEMENT the position of the accused” from section 23 would have “the effect of removing the “ need for the jury to assume that the ordi- However, if the test was interpreted to be nary person has been provoked to the level purely objective as Mr Hazzard indicated, that the accused was”. This has been inter- Gummow J in Green (at 386) warned such preted by some as a purely objective ordi- an operation would undermine the princi- nary person test. ples of equality before the law and individual responsibility. The operation of this section needs to be clarified. While reference to legislative history can reveal necessary implications, in Green v R (1997) 191 CLR 334 (“Green”) Too-

25 David Rofe JURIS DOCTOR STUDENT, UNIVERSITY OF SYDNEY SOLICITOR, ABORIGINAL LEGAL SERVICE (NSW/ACT)

If you could change one fence”, is found in s 9(6) of the Act. particular section or regulation, On the other hand, offences which have what would it be? taken place in another jurisdiction after midnight 1 July 2013 may count towards wheth- There is confusion within the legal fraternity re- er an offence is a “first offence” or a “second garding whether interstate traffic convictions or subsequent offence because section count towards an offence under the Road 4(h) “major offence”, likely captures convic- Transport Act 2013 (NSW) (“the Act”) being a tions in another jurisdiction as being a first “first offence” or a “second or subsequent of- or second/subsequent offence where other fence” under s 9 of the Act. The penalty for States have offences of the same or similar each offence differs. The law is need of reform character to the offences defined as major to provide clarification to legal practitioners, offences. This was the essence of Latham police prosecutors, and magistrates. J’s reasoning in DPP (NSW) v Beaman (2005) 64 NSWLR 634. Why does this section or regulation need to be changed? When the Act was introduced, it was a consolidating Act designed to collect NSW traf- Many practitioners are of the view that in- fic legislation in one Act and to homogenise terstate convictions which took place after traffic legislation across the nation. midnight on 1 July 2013 do not count towards whether an offence under the Act is a “first of- Given that many legal practitioners, police fence” or a “second or subsequent offence” prosecutors, and magistrates operate under because there has been no declaration to what appears to be a misapprehension that this effect, as ostensibly provided for under interstate traffic convictions do not count the Act. The power to declare offences which for the purposes of s 9 of the Act, reform is have taken place in another jurisdiction, for required to have the correct position clari- the purposes of whether a new offence is a fied through an express provision in the Act.

“first offence” or a “second or subsequent of- ENFORCEMENT CRIME & LAW

26 Nicholas Cowdery AM QC Joe Blackshield ADJUNCT PROFESSOR OF LAW & FORMER NSW DIRECTOR OF PUBLIC PROSECUTIONS SOLICITOR

If you could change one cieties in other countries. It happens in Aus- particular section or regulation, tralia, but covertly and unevenly. Legislation has been proposed in Australia many times what would it be? and it is now time it passed. I would change s 18(1)(a) of the Crimes Act 1900 (NSW) – murder. I would remove from its scope assistance in voluntary assisted The person should dying, which should be legislated for else- be free to make an where. Section 31C (aiding, etc. suicide) would also need to be amended. informed choice and medical professionals Why does this section or regulation need to be changed? should be free (but not obliged) to assist. None of us had a choice about when, where and how we would be born, but many of HEALTH & SOCIAL WELFARE “ us – given the right circumstances – would like the choice of a dignified ending. Vol- untary assisted dying should be a right of all competent adult persons in positions of extreme suffering or settled and irrevers- ible serious decline. It should be subject to rigorous legislated safeguards, of course. The person should be free to make an informed choice and medical professionals should be free (but not obliged) to assist. Effective and generally accepted lawful schemes operate in many comparable so-

27 Joe Blackshield ADJUNCT PROFESSOR OF LAW & FORMER NSW DIRECTOR OF PUBLIC PROSECUTIONS SOLICITOR

If you could change one particular section or regulation, This tweak would what would it be? encourage magistrates I would tweak s 42 of the Mental Health (Fo- to divert appropriate rensic Provisions) Act 1990 (NSW) (“MHFPA”) to add s 33 to the list contained at (a)(i). cases, prevent mentally ill people from Why does this section or regulation need to be changed? being dragged through the punitive system, Section 33 is the section by which magistrates in the NSW Local Court may divert and save substantal people who are classified as “mentally ill” court costs. for the purposes of the MHFPA to a mental health facility. The definition of “mentally ill “ persons” includes people who are suffering The practical impact of this is to discourage a mental illness and, because of that illness, magistrates from diverting cases into the are a danger to either themselves or others. mental health system under s 33 for fear As s 33 is not currently present in the list at that diverted persons will only receive tem- s 42 of the MHFPA, there is no requirement porary care and support. for the Mental Health Tribunal to review the Community Treatment Orders of people re- This tweak would encourage magistrates to leased under s 33 when the relevant orders divert appropriate cases, prevent mental- expire. This means that people who are a ly ill people from being dragged through a danger to themselves or others are often punitive system, and save substantial court left without support after their orders, which costs. cannot last longer than 12 months, expire. & SOCIAL WELFARE HEALTH

28 Kathryn Ridge Charles Gregory LAWYER, RIDGE LEGAL BARRISTER, SIXTH FLOOR WINDEYER CHAMBERS

If you could change one sion-making institutions, and to maintain particular section or regulation, and strengthen their spiritual relationship with traditionally owned lands, and all as- what would it be? pects of aboriginal cultural heritage. Standalone Aboriginal cultural heritage laws managed by Aboriginal Peoples, rather than regulation of Aboriginal cultural The NSW Government heritage through the provisions of the Na- cultural heritage tional Parks and Wildlife Act 1974 (NSW). reform process has Why does this section or stalled since the regulation need to be changed? discussion paper of New South Wales is the only state in Aus- 2013. tralia that regulates Aboriginal cultural heritage alongside the protection of flora and “

INDIGENOUS AUSTRALIA fauna. All major parties have a stated policy The NSW Government cultural heritage re- commitment to fix this, and have had since form process has stalled since the discus- 2008, and yet in 2017, almost a decade lat- sion paper of 2013. Legislation is proposed er, there is no Aboriginal Cultural Heritage for the end of 2017 and a public consul- Act. tation process is underway, but central to successful legislation is Aboriginal people The United Nations Declaration on the having the right to speak for that cultural Rights of Indigenous Peoples provides that heritage, including having the right to say Aboriginal Peoples have the right to main- no to development that will destroy it. No tain, control, protect and develop their NSW Government to date has been pre- own cultural heritage. They have the right pared to stand up for the rights of Aborigi- to maintain and develop their own deci- nal people to do so.

29 Charles Gregory LAWYER, RIDGE LEGAL BARRISTER, SIXTH FLOOR WINDEYER CHAMBERS

If you could change one In the past, the Governor could set aside particular section or regulation, farms for settlement leases – over smaller areas, if the Governor thought the land suit- what would it be? able for agriculture, and over larger areas, if they were suitable for grazing. The notice The deletion of part (b) of clause 3(3) of Part described what the land was suitable for. 1 of Schedule 1 of the Native Title Act 1993 A person then applied for a lease. But the (Cth). lease never specified if the lessee was prohibited from using the land for agriculture, Why does this section or horticulture, or cultivation, even if the size regulation need to be changed? of the farm was huge and the land was described as suitable for something like, “the Settlement leases wholly extinguish native fattening of sheep”. How then does one title, unless the lease was for grazing or pas- determine if the lease is caught and wholly toral purposes and, by clause 3(3)(b), it did extinguished native title? not permit the lessee to use the land or wa- ters primarily for agriculture, horticulture, or cultivation. INDIGENOUS AUSTRALIA INDIGENOUS

30 P hilip Boncardo Penny Parker BARRISTER, WARDELL CHAMBERS LAWYER - EMPLOYMENT AND INDUSTRIAL RELATIONS, SLATER AND GORDON

If you could change one tion. The Howard government’s Workplace particular section or regulation, Relations Act 1996 (Cth) imposed pecu- niary penalties on taking industrial action what would it be? outside the nominal term of an enterprise agreement. These provisions were carried Section 417 of the Fair Work Act 2009 (Cth), over into the Fair Work Act. which prohibits and penalises employees and trade unions who take or organise Employees and unions can be sued and industrial action during the nominal term penalised under statute even if the employ- of an enterprise agreement, should be re- er suffers no loss or damage, as required at pealed. common law.

Why does this section or Further, government bodies like the Aus-

LABOUR LAWLABOUR & STANDARDS OF CARE regulation need to be changed? tralian Building and Construction Commis- sion and the Fair Work Ombudsman have The right of employees to withdraw their targeted individual employees (and their labour in support of their social, industrial trade unions) who take or organise industri- and political aspirations arises by neces- al action in support of safety and industrial sary implication from the International La- issues in their workplaces and industries, bour Organisation’s Freedom of Associa- as well as political and social causes. This tion and Protection of the Right to Organise has resulted in hundreds of workers being Convention and the Right to Organise and hauled before the Federal Court and the Collective Bargaining Convention, both of Federal Circuit Court in an apparent effort which Australia has ratified. by the Commonwealth to discipline and undermine organised labour. Until the Industrial Relations Act 1993 (Cth), Australian law did not protect employees The legislature should not penalise industri- and trade unions from being sued at com- al action taken outside bargaining. Section mon law if they engaged in industrial ac- 417 of the Fair Work Act should be repealed.

31 Penny Parker BARRISTER, WARDELL CHAMBERS LAWYER - EMPLOYMENT AND INDUSTRIAL RELATIONS, SLATER AND GORDON

If you could change one ply assess the likelihood of the employee particular section or regulation, taking legal action to recover the amount in deciding whether or not to rectify the un- what would it be? derpayment. This places the employee or the union in a position where their only op- I would amend the Crimes Act 1900 (NSW), tion is to litigate. Where the underpayment to create a criminal offence for wage theft. is not a significant sum, litigation is often not Wage theft should be defined simply as commercially viable. This disadvantages the “where an employer knowingly pays an em- lowest paid employees, for whom under- ployee less than what they are entitled to ac- payments have the harshest impact. cording to law”.

Why does this section or Morally, there is regulation need to be changed? “ little difference Morally, there is little difference between knowingly underpaying an employee, and between knowingly stealing money from their wallet or bank underpaying an account. employee and stealing The two acts should attract the same crimi- money from their nal culpability according to law. wallet or bank account. The current provisions of the Fair Work Act 2009 (Cth) do not provide a sufficient deterrent against employers paying their employees less than their legal entitlements. Even if an employee or a union alerts the employer LABOUR LAW & STANDARDS OF CARE & STANDARDS LABOUR LAW to the underpayment, often employers sim-

32 Cassandra Taylor Jack McNally LAWYER, MAURICE BLACKBURN LAW STUDENT, UNIVERSITY OF NEW SOUTH WALES

If you could change one These workers particular section or regulation, “ what would it be? should have access to meaningful legal Section 789FF(1) of the Fair Work Act 2009 (Cth) should be amended to remove the remedies that do not prohibition on the Fair Work Commission require them to return making orders requiring the payment of money for successful bullying claims. to the workplace in which they were Why does this section or regulation need to be changed? bullied... LABOUR LAWLABOUR & STANDARDS OF CARE The Commission’s current power “to make The reality is that bullying usually causes any order it considers appropriate (other an employment relationship to become than an order requiring payment of a pe- fractured. As an employment lawyer, I see cuniary amount) to prevent the worker be- first-hand the profound impact that working bullied at work” is helpful in situations place bullying can have on a victim’s men- where a bullying victim wishes to return to tal health. All too often I see clients who the workplace, or works for a large organ- are so mentally worn down that they are isation and can be moved to a different on personal leave and are unable to face working environment. However, the Com- returning to work. These workers should mission’s inability to order monetary ‘com- have access to meaningful legal remedies pensation’, coupled with the requirement that do not require them to return to the that it must identify a future risk of bullying, workplace in which they were bullied, and means that the anti-bullying jurisdiction es- instead enable them to heal and move for- sentially fails those who need it the most. ward with their careers.

33 Jack McNally LAWYER, MAURICE BLACKBURN LAW STUDENT, UNIVERSITY OF NEW SOUTH WALES

If you could change one power to manage their side of bargaining. particular section or regulation, While unions and employees must provide employers with three days’ notice of their what would it be? intention to take industrial action, the FW Act does not place the same burden on em- The Fair Work Act 2009 (Cth) (“FW Act”) ployers, allowing them to effectively lock- should be rewritten, including ss 413 and 414, out their employees with no notice. to provide a statutory right to strike.

Why does this section or Contrary to regulation need to be changed? international law, no “ The FW Act limits the ability for workers to right to strike exists in strike and engage in industrial action to only Australia. those circumstances related to enterprise bargaining. This prevents workers from engaging in industrial action related to broader Workers, too, must be given the right to workplace interests. It also prevents workers strike, not the right to apply to strike, and from protesting against groups and organ- must be able to control their own political isations, separate to their own employers, and industrial destiny. who have a direct or indirect impact on their employment conditions. For instance, the FW Act prevents striking for political purposes or engaging in ‘secondary striking’.

Contrary to international law, no right to strike exists in Australia. This places workers at a disadvantage compared to their em- LABOUR LAW & STANDARDS OF CARE & STANDARDS LABOUR LAW ployers, who — within legal limits — have the

34 Keifer Veloso Justin Pen LAWYER, COLIN BIGGERS & PAISLEY LAW GRADUATE, UNIVERSITY OF SYDNEY

If you could change one ple, Uber drivers must follow strict protocols particular section or regulation, when “ride-sharing” (such as the type of car and routes). They are also prohibited from pro- what would it be? viding their details to passengers directly and are required to introduce themselves as Uber I would amend s 15 of the Fair Work Act 2009 drivers (representing the brand). (Cth) to insert an intermediate definition of worker, similar to the definition in s 230(3)(b) This type of contract, where workers pro- of the Employment Rights Act 1996 (UK). vide services personally and for a single client/platform, is arguably misclassified as Why does this section or an independent contractor arrangement. In regulation need to be changed? many cases, this leaves the contractor unfairly exposed to free-market competition.

LABOUR LAWLABOUR & STANDARDS OF CARE The rise of the gig economy has shifted a Because of this, they are deprived of the large amount of the financial risk of con- protections of labour law, such as minimum ducting business from companies to their terms and conditions, safeguards against individual contractors. Gig platforms, such capricious termination, and court/tribunal as Uber, Deliveroo, and Airtasker, have dis- oversight of any significantly unfair contract rupted the typical working paradigm by terms. In an increasing number of jurisdic- engaging their workforce as independent tions (such as the UK, Canada, Spain and contractors rather than employees. Italy), legislators are classifying these types of workers as ‘dependent’ contractors. In many cases, however, these contractors closely resemble employees. They often share By inserting an intermediate definition of some of the characteristics of employment, worker, we will be able to better and more including a lack of control over how work is fairly regulate this emerging category of performed, an inability to build goodwill in work, whilst still retaining the flexibility that their own business, and an inability diversify attracts both contractor and client to this risk by engaging multiple clients. For exam- type of relationship.

35 Justin Pen LAWYER, COLIN BIGGERS & PAISLEY LAW GRADUATE, UNIVERSITY OF SYDNEY

If you could change one immediately after a termination of employ- particular section or regulation, ment is one of; shock, distress, humiliation, depression, managing a sudden financial what would it be? crisis, urgently seeking new employment and sometimes seeking alternative housing. Addi- Subsections 366(2) and 394(3) of the Fair tionally many clients are entirely unaware of Work Act 2009 (Cth) (“FW Act”) should be their rights to a potential unfair dismissal or amended to replace “exceptional circum- general protections claim or how to gain the stances” with “special circumstances”. necessary information about their rights at this time.” Why does this section or regulation need to be changed? The bar should be lowered. As a starting point, the requirement for “exceptional circumstances” Under the FW Act, a person must lodge a should be lowered to “special circumstances”. claim for unfair dismissal or general protections involving dismissal within 21 days after In Boscolo v Secretary, Department of Social the dismissal took effect. An application can- Security (1999) 90 FCR 531, French J (as he then not be brought after this period unless there was) observed (at [18]) that “special circum- are “exceptional circumstances”. stances” merely requires “something unusual or different to take the matter the subject of the This bar is set too high. It fails to consider the discretion out of the ordinary course”, but “does difficult, and typical, consequences that flow not require that the case be extremely unusual, from dismissal. Those consequences were uncommon or exceptional”. succinctly summarised by a submission from the NT Working Women’s Centre, to the Aus- The factors identified in the submission tralian Human Rights Commission’s “Willing to above should also be included in a list of rel- Work” Inquiry, (at p. 330) as follows: evant considerations the Fair Work Commis- sion must consider in determining whether LABOUR LAW & STANDARDS OF CARE & STANDARDS LABOUR LAW “Clients report that often the period of time there are “special circumstances”.

36 Claire Pullen Aron Nielson DIRECTOR OF ADVOCACY AND EXTERNAL STAKEHOLDER RELATIONS, FAMILY PLANNING NSW PRINCIPAL LAWYER, SLATER AND GORDON

If you could change one particular section or regulation, To access the Commonwealth entitlement, the non-birth parent is required to be on what would it be? unpaid leave, but no entitlement to unpaid leave exists in the NSW Act unless the The Industrial Relations Act 1996 (NSW) non-birth parent is the primary carer of the (“NSW Act”), Chapter 2 - Part 4 “Parental child (and also a woman; ‘she’ at s 55(2)), leave” should be amended to give effect which would make them ineligible for Dad to the entitlement to Dad and Partner Pay, and Partner Pay. Dad and Partner Pay is available under the Paid Parental Leave and specifically provided to non-primary carer Other Legislation Amendment (Dad and parents. Parents who are primary carers are Partner Pay and Other Measures) Act 2012 entitled to paid Parental Leave under the (Cth) (“the Commonwealth Act”). Fair Work Act 2009 (Cth). LABOUR LAWLABOUR & STANDARDS OF CARE Why does this section or Section 55 in the Commonwealth Act regulation need to be changed? should be amended to include sub-section 55(3)(c) to provide: “a period of unpaid At present, the interaction of NSW and leave to permit the employee to access Commonwealth entitlements prevents Dad and Partner Pay”. Section 60(1) should some employees accessing both systems, also be amended to allow both parents to which is contrary to the purpose of the take parental leave at the same time. Commonwealth Act.

Under the NSW Act, the non-birth parent (who may be male or female) is entitled to paternity or partner leave pursuant to s 55(1) for one week at full pay or two weeks at half pay, and another period of unpaid leave to be the primary carer under s 55(3)(b).

37 Aron Nielson DIRECTOR OF ADVOCACY AND EXTERNAL STAKEHOLDER RELATIONS, FAMILY PLANNING NSW PRINCIPAL LAWYER, SLATER AND GORDON

If you could change one go all around upon which the FW Act is sup- particular section or regulation, posedly built. what would it be? Section 382(b)(iii) of the Fair Work Act 2009 The concept of “ (Cth) (“FW Act”). fairness in the Why does this section or workplace and having regulation need to be changed? access to protections

The effect of s 382(b)(iii) of the FW Act is in circumstances of an to exclude from unfair dismissal protection unfair dismissal should those persons who earn over the defined high income threshold . not be predicated on income. The concept of fairness in the workplace and having access to protections in circumstances of an unfair dismissal should not be predicated on income. Fairness and protection should extend to all in the workplace as a matter of basic equity.

The arbitrary nature of the cap means that a person earning a single dollar over it can have no access to justice even though they were treated worse than a person who earns one dollar under the cap. It simply makes no LABOUR LAW & STANDARDS OF CARE & STANDARDS LABOUR LAW sense and goes against notions of the fair

38 Douglas McDonald-Norman Jane Leibowitz RESEARCHER, 8 SELBORNE CHAMBERS SENIOR SOLICITOR, ASYLUM SEEKER HEALTH RIGHTS PROJECT AT PIAC

If you could change one tection. Asylum seekers must now estab- particular section or regulation, lish, for example, that they would be at risk throughout their country of origin – even what would it be? if it would be unreasonable (or impossible in practice) for them to relocate from their I would amend or repeal ss 5H-5LA of the home region to a supposedly ‘safe’ district. Migration Act 1958 (Cth) (“Migration Act”) This test is contrary to how the Convention to ensure that the term “refugee” is defined is interpreted by the UNHCR, and in com- in terms of the Convention Relating to the parative law. Status of Refugees (“Convention”).

Why does this section or Assessments by regulation need to be changed? reference to Australia’s Before 2014, the claims of asylum seekers new statutory applying for protection in Australia were definition endanger assessed by reference to the Convention – relevantly, whether they possessed a the lives of people who well-founded fear of persecution in their country of origin. In 2014, a new ‘statutory would otherwise

MIGRATION LAW definition’ of a refugee was enacted, based be eligible for in the text of the Migration Act rather than protection... that of the Convention. “ This statutory definition in ss 5H-5LA of the Assessments by reference to Australia’s Migration Act differs from the Convention new statutory definition endanger the lives definition in several key respects and sub- of people who would otherwise be eligible stantially increases the difficulty of proving for protection as a refugee in Australia un- that an asylum seeker needs Australia’s pro- der the Convention.

39 Jane Leibowitz RESEARCHER, 8 SELBORNE CHAMBERS SENIOR SOLICITOR, ASYLUM SEEKER HEALTH RIGHTS PROJECT AT PIAC

If you could change one general Australian community. For example, particular section or regulation, a maximum-security prisoner in Victoria has the right, guaranteed in legislation, to rea- what would it be? sonable medical care and treatment. If they have a mental illness, they have a specific There are currently no legal standards in the right to special care and treatment. Migration Act 1958 (Cth) to regulate health care in immigration detention. The Federal Court has described this issue as a ‘legislative Detained asylum vacuum’. seekers are suffering Why does this section or without the basic regulation need to be changed? medical care that Detained asylum seekers are suffering with- they need. out the basic medical care that they need. “ Every day, Australia detains close to 1500 An asylum seeker in an Australian immigra- people in mainland immigration detention tion detention centre has no such legislative centres. A further 1200 asylum seekers are rights. Despite the high levels of trauma suf- held in offshore facilities. While the average fered by asylum seekers and the damage length of immigration detention is 32 days in to physical and mental health caused by the US and 25 days in Canada, immigration long-term, indefinite detention, conditions detainees in Australia can expect to spend in immigration detention centres are unreg- an average of 443 days in a secure facility. ulated.

In a correctional setting, all prisoners have

the right to medical care consistent with LAW MIGRATION the quality of health services afforded to the

40 Kirk McKenzie PARTNER, HAYLEN MCKENZIE

If you could change one First, mandatory minimum sentencing under particular section or regulation, s 236B applies to juveniles unless “it is established on the balance of probabilities” that the what would it be? person is aged under 18 years (s 236B (2)). This is a breach of Article 14(2) of the International I would repeal s 236B of the Migration Act Covenant on Civil & Political Rights (“ICCPR”). 1958 (Cth), which imposes a range of man- The ICCPR requires Australia to implement datory minimum sentences for persons con- the presumption of innocence - under which victed of certain people-smuggling offences. all elements of a criminal charge need to be proved beyond reasonable doubt. Why does this section or regulation need to be changed? The section also offends the fundamental principle that a sentence must be appella- Mandatory sentencing infringes the tradi- ble. It is therefore a breach of Article 14(5) tional principle that the punishment must of the ICCPR, which requires a convicted fit the crime and the criminal. A mandatory person to have the right to have their con- sentence under s 236B (3)(a) & (b) is for a viction and sentence reviewed by a higher minimum eight-year term and under s 236B tribunal. There can be no appeal against a (3)(c), is for a minimum of five years. Wher- mandatory minimum sentence. ever mandatory sentencing has been legis-

MIGRATION LAW lated, it has led to strong criticism of its “one Further, a mandatory sentence infringes the size fits all” approach to penalty. This section prohibition against arbitrary detention con- has been strongly criticised by judges and tained in Article 9 of the ICCPR. Another rea- academic commentators. son for repealing this unjust provision is that it has been used by the Coalition as a precedent Noting Australia now has a position on the for its attempts this year to impose mandatory UN Human Rights Council, the section also minimum sentences for firearms trafficking breaches international human rights laws and teenage sex crimes including “sexting”. which Australia has ratified.

41 Kirk McKenzie Michael Hall SC PARTNER, HAYLEN MCKENZIE SENIOR COUNSEL, NIGEL BOWEN CHAMBERS

If you could change one ty serves a ‘proposed acquisition notice’ (PAN). From that point onwards the owner particular section or regulation, is protected – they get the market value if what would it be? the sale proceeds or compensation under s 69 if it is cancelled. But by that stage they I would change s 69 of the Land Acquisi- may already have suffered significant loss- tion (Just Terms Compensation) Act 1991 es. A prudent land owner does not waste (“the Act”) to allow compensation when a money if the land is about to be compul- proposed acquisition is cancelled, whatev- sorily acquired. Recent examples of ac- er stage it had reached. quisitions cancelled before issue of a PAN include: Why does this section or regulation need to be changed? • Commercial tomato growers were told their land was required for a new railway. They de- There is a gap in protection for people cided not to plant the next year’s crop. whose land is threatened with compulsory acquisition, if the proposed scheme does • A publican acquired the lease of premises not proceed. Their use of the land may to open new hotel. He began acquiring li- have been stymied for months or even quor and other licences, but stopped when years without a right to compensation. he was told the land would be compulsorily acquired. When the acquisition was can- Typically when land owners are told their celled, he was six months behind with his land may be required for a public purpose plans and the licensing process had to be- the government seeks to negotiate a mar- gin again. ket sale. Negotiations can last for months. Many owners find that the prices offered A person who suffers loss as a result of a are inadequate, and choose to go through cancelled compulsory acquisition should the compensation process under the Act. be entitled to recover that loss whatever If a sale is not agreed then the authori- stage the acquisition had reached. & ANIMAL OWNERSHIP LAW PROPERTY

42 Evan James BARRISTER, GARFIELD BARWICK CHAMBERS

If you could change one meaning that if the dog is declared dan- particular section or regulation, gerous, all the restrictions imposed by the regulations come into force, and the dec- what would it be? laration can only be challenged by appeal- ing the matter to the Local Court. This can My legal tweak would be to the Companion force owners who have owned dogs for Animals Act 1998 (NSW) (“Act”), s 36, and extensive periods of time to either have to the associated regulations. give the dog up, or have it put down if they can’t comply with the relevant regulations, Why does this section or or if they are unable to afford to bring any regulation need to be changed? appeal to the Local Court.

Everyone agrees that the freedom to have I would like to see s 36 (and the associated

PROPERTY LAW & ANIMAL OWNERSHIP pets brings with it the need to have guide- regulations) changed so council officers lines and rules in place about how those can determine, with a greater degree of pets should be cared for and managed. discretion, which regulations are appropri- Currently, in the case of dogs who may ate to impose in each case, and the time be declared “dangerous” or “menacing” - limit for any restrictions imposed, to bring a whether it’s due to their particular breed or degree of common sense into the process. because they have acted aggressively in some way or another – it is the relevant local council authorised officer which declares, or proposes to declare, a dog dangerous or menacing under the Act. This process sub- jects both the dog and its owner to various restrictions and regulations about how that dog can be walked and kept, for example.

Currently it is an “all or nothing” system –

43 A recommendation they’ll remember.

Maurice Blackburn is Australia’s leading social justice and employment law firm, a true champion in the fight for fair. Our employment law division, led by Josh Bornstein, has an unparalleled track record across a range of progressive legal issues impacting employees. Our team have the experience, expertise and Evan James discretion to find the right resolution for your client.

• Employment contracts • Restraint of trade • Dismissal & redundancy • Whistleblower protection & claims • Workplace bullying Our services • Workplace discrimination • Public sector matters • Performance & disciplinary investigations/allegations

We are the only First Tier employment law firm for employees in Australia, as recommended by the prestigious Doyles Guide.

Alex Grayson Mia Pantechis Alana Heffernan Principal Senior Associate Senior Associate

“Our team has an outstanding record of achieving terrific outcomes for employees in both the private and public sector. We assist our clients with a combination of strategy, tenacity and compassion.”

Josh Bornstein & TRANSPORT LAND LAW National Head of Employment Law Maurice Blackburn 44 These are important years in our national and social development. They are years in which we are shaping not only our own but the destinies of generations to come. They are years of enlightenment and evolution. Of major change and progress. In whatever is taking place Labor has its part to play. It is a major role, one of the very first importance. But how can we, as a party, stand up to these grave responsibilities and play our part, capably and well, unless we are a united party – a united force for the good of all the people? It has always been in times of political stress and challenge that Labor has shown its greatest strength That strength has come from unity within the party – unity in the industrial field, unity in the political field – and unity as between these two very important components…