2013 Legal Tweaks

that would change NSW & the nation

EDITED BY

AMY FOX AND KELLY XIAOPublished by the New South Wales Society of Labor Lawyers

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

Copyright 2013 @New South Wales Society of Labor Lawyers Inc. (INC9896948)

Our thanks goes to all those who have contributed to this publication, and to the lawyers before them who built the modern labor party and imprinted social justice on our national identity.

Special thanks to our sponsors: Maurice Blackburn Lawyers, who carry on the great legacy of Maurice McCrae Blackburn, a champion lawyer and a federal labor member.

CONTENTS

Robin Schuck 3

Kate Washington 4

Pat Garcia 23

Ben Slade 24

Ben Fogarty 10

Carl Godfrey 16

Kate Eastman SC 17

Hannah Quadrio 22

Anthony Krensel 25

Tim Stephens 12

Emmanuel Kerkyasharian 13

Miiko Kumar 14

Greg Jones 15

Kirk McKenzie 5

George Williams 6

Joanna Knight 11

Lauren Fieldus 7

Melissa Tan 8

Elisabeth Peden 9

Awais Ahmad 26

Haren Pararajasingham 27

Senthorun Raj 28

Daniel Delimihalis 18

Lewis Hamilton 19

Bilal Rauf 20

CIVIL LIABILITY LEGISLATION

REGULATION OF THE LEGAL PROFESSION

GUARDIANSHIP LAW

FOOD REGULATIONS

ANTI-DISCRIMINATION LAW

PATENT LAW

PRIVACY LAW

LEGAL PROCEDURE

ENVIRONMENTAL LAW

EVIDENCE LAW

FINES

CONSTITUTIONAL LAW

CRIMINAL LAW

CONTRACT/COMMERCIAL LAW

MIGRATION LAW

INDUSTRIAL RELATIONS/EMPLOYMENT LAW

Tanvi Mehta 21

1

FOREWORDfrom the Shadow Attorney-General, Mark Dreyfus QC MP

We on the progressive side of politics do not accept the conservative view that catastrophe is the only legitimate impetus to social change. Rather, we hold that society is improved through a constant process of reform. The reform of the law is an important part of this wider process of societal improvement, and I welcome the contribution of the NSW Society of Labor Lawyers to promoting law reform through this year’s edition of Legal Tweaks.

A particular strength of Legal Tweaks is that it is about starting a conversation about reform. Or perhaps more accurately, it is about starting dozens of conversations about a range of reform possibilities. And you certainly don’t have to agree with every suggestion in this publication to appreciate its value in encouraging discussion about change in the law.

Another strength of Legal Tweaks is that it promotes the ideas of a wide range of practitioners and academics, many of who have long and deep

experience in the particular area of law to which they are suggesting reform.

“A particular strength of Legal Tweaks is that it is about starting a conversation about reform.”

We can expect little interest in serious reform from the conservatives now governing in both Canberra and NSW. So I would take this opportunity to encourage all progressive lawyers to keep the conversation about reform alive and flowing. I have no doubt that the ideas in this edition of Legal Tweaks will form a part of this essential conversation.

2

EDITORS’ NOTEfrom the 2013 Legal Tweaks EditorsKelly Xiao & Amy Fox

The “Legal Tweaks” publication is designed to facilitate dialogue between lawyers who share progressive values and elected Labor members of parliament.

“...we recognise that elected members are in the best position to propose and achieve legislative change.”

As a Society committed to progressive law reform, Labor Lawyers recognises that elected members are in the best position to propose and achieve legislative change. We want to enhance elected members’ practical day to day understanding of how specific legislative clauses and regulations are affecting people in the community.

Legal Tweaks was launched with this

goal in mind. In 2012, Labor Lawyers released the first edition of Legal Tweaks where people from across the legal profession were asked the simple question:

If you could change one particular section or regulation, what would it be, and why?

In 2013, in the lead-up to the election and in the first days of the new government, we again posed the question. Our second edition of Legal Tweaks showcases a wide range of thought-provoking contributions from members of the legal profession, covering a variety of areas of law. These legal practitioners are not all members of the Labor Party, or of the NSW Society of Labor Lawyers. However, they all share the Society’s desire to see sound, progressive law reform. We hope this publication will enable us to share their insights on how the law can be changed - ‘tweaked’ - simply and effectively, for the benefit of the wider community.

3

Proportionate Liability was introduced to civil liability legislation in each Australian jurisdiction in the wake of the insurance crisis that led to the collapse of HIH in the early 2000s. Under Proportionate Liability, each party to a contract is liable for only that share of the loss they were responsible for, instead of each party being jointly and severally liable.

However, when this legislation was enacted, New South Wales, Western Australia and Tasmania passed legislation explicitly allowing the parties to contract out of Proportionate Liability; Queensland’s legislation expressly prohibits contracting out of Proportionate Liability; and the Commonwealth, Victoria, South Australia, Australian Capital Territory and Northern Territory legislation is all silent on the issue.

A uniform, national position against contracting out of Proportionate Liability should be adopted for the following reasons:

1. Contracting out of Proportionate Liability defeats the policy intent for which this reform was introduced in 2002;

2. In some sectors of the economy, Professional

Indemnity insurance is not readily available for professionals contracting out of Proportionate Liability;

3. Contracting out assumes that such a position was freely reached between the parties, when in actuality many contracts are not negotiated, but offered on a “take it or leave it” basis, with unequal bargaining power between the parties;

4. Proportionate Liability moves the parties away from a “deep pockets” approach to liability, and towards each party being responsible for the things they can control. In turn this leads to better outcomes arising out of the contract.

This change has been proposed previously at Standing Committee of Attorneys General and Standing Council of Law and Justice meetings, but discussion has been deferred. Until the reform occurs, the pitfalls Proportionate Liability was designed to overcome risk being repeated.

Robin Schuck is a Senior Legal Policy Advisor at Consult Australia.

Remove the ability to contract out of Proportionate Liability under the Civil Liability Act 2002 (NSW).

Why does this section/regulation need to be changed?

If you could change one particular section or regulation, what would it be?

ROBIN SCHUCK Senior Legal Policy Advisor

4



This section unreasonably precludes grandchildren from recovering damages for pure mental harm arising from shock. Only a witness of the victim being killed, injured or put in peril; or a close family member of the victim, may recover damages.

The problem lies with the definition of “close family member” which is limited to a victim’s parent; spouse or partner; child or stepchild; or sibling. Grandchildren are not considered ‘close’ enough.

Examples of the impact:

An Aboriginal woman’s grandfather died due to neglect in an aged care facility. As a result of his death, she suffered significant psychological injury and yet, she cannot recover damages.

A granddaughter visits her grandfather in hospital and finds him dead on the floor, next to his bed. Due to the hospital’s negligence, she suffers a breakdown but cannot recover damages.

“The definition of ‘close family member’ is out of step with our community.”

The definition of ‘close family member’ is out of step with our community. It imposes a traditional Anglo-Saxon model of ‘family’ and in so doing, discriminates against people of indigenous and multicultural heritage. This paternalistic law should be repealed.

Kate Washington is a Partner at Catherine Henry Partners.

From the perspective of a plaintiff personal injury lawyer, I would like to see s 30(2) of the Civil Liability Act 2002 (NSW) repealed.

KATE WASHINGTON Solicitor and Partner

5

Section 44(iv) of the Constitution prevents any person who “holds any office of profit under the Crown…” from standing for Federal Parliament as a Candidate. This prevents federal or state public servants from nominating as a Candidate for Federal Parliament unless such persons resign their employment prior to formally nominating as a Candidate (See Sykes v Cleary (1992) 176 CLR 77).

This provision prevents many highly experienced public administrators from standing for Parliament without having to give up their employment even though they may later be unsuccessful candidates.

Section 44 should be amended so as to only affect persons who are actually elected. The amendment could deem successful candidates to have resigned their employment and disclaimed all benefits arising from such employment at and after the declaration of the poll, apart from any termination payments due.

A recent example of the current injustice arose when the Labor Candidate for North Sydney

in the 2013 election was forced to resign from his employment with the Australian Bureau of Statistics even though his chances of being elected were remote. He expected to return to his job after the elections but was denied re-employment.

Section 44(iv) appears to discriminate against Candidates according to their employment status and as such, is arguably a breach of Article 25 (freedom to participate in public affairs and/or politics, without discrimination) of the International Covenant on Civil and Political Rights, which Australia as a nation has ratified and under international law, is required to implement into its domestic laws, including our Constitution.”

Kirk McKenzie is a Partner at Haylen McKenzie.

I would amend the Constitution to allow public servants to stand for Federal Parliament without having to resign.

KIRK MCKENZIESolicitor and Partner



6

“Although the section acts as a penalty, it does so by acknowledging that a State is entitled to disqualify people from voting due to their race.”

Headed ‘Provision as to races disqualified from voting’, section 25 provides that where a State disqualifies the people of race from voting in its elections, the people of that race are not to be counted as part of the State’s population in determining its level of representation in the Federal Parliament. Although the section acts as a penalty, it does so by acknowledging that a State is entitled to disqualify people from voting due to their race. This reflects the fact that at Federation in 1901, and for decades afterwards, States denied the vote to Aboriginal people. Unfortunately, the Constitution still recognises this as being a legal possibility. Section 25 should be repealed because it is fundamentally inconsistent with the contemporary

value that people should not be discriminated against because of their race.

“Section 25 should be repealed because it is fundamentally inconsistent with the contemporary value that people should not be discriminated against because of their race.”

George Williams AO is a Professor of Constitutional law, Anthony Mason Professor, Scientia Professor and the Foundation Director of the Gilbert + Tobin Centre of Public Law at the Faculty of Law, University of New South Wales.

Section 25 of the Australian Constitution should be repealed. There should be no place in the Constitution today for a section that recognises that a State can disqualify people from voting because of their race.

GEORGE WILLIAMS AOProfessor



7

In the case of Morganite Ceramic Fibres Pty Lt v Sola Basic Australia Ltd (1988) 5 ANZ Ins Cas 60-883, the Court expanded the principle of subrogation so that the insurer’s rights as against a third party were wider than that of the insured’s. As a third party had knowledge of an insurer, a release signed with the insured was held to be ineffective (otherwise known as the “Morganite principle”). This infringes and violates the idea that the insurer’s rights are no different from that of the insured.

“This infringes and violates the idea that the insurer’s rights are no different from that of the insured.”

There is an implied duty on the insured not to release, diminish, compromise or divert the benefits of any rights to which an insurer should be entitled. Third parties should not be punished for an insured’s breach of this duty. Insurers should seek compensation from insureds rather than third parties for such a breach. It seems that this principle now needs to be included in the ICA so as to put this beyond doubt and provide third parties with certainty that their releases with insureds will not come back to bite them.

Lauren Fieldus is a Solicitor at Wotton + Kearney.

I would like to see the Insurance Contracts Act 1984 (Cth) (IC Act) amended to put beyond doubt that, upon an insurer being subrogated to the rights of the insured to recovery from a third party, the insurer does not acquire an independent cause of action in its own right. It is an indivisible cause of action.

LAUREN FIELDUSSolicitor



8



The IAA’s new s 21 – which commenced on 6 July 2010 – effectively denies parties the choice to opt out of the Model Law in their international arbitration seated in Australia. However, it is unclear if the section applies retrospectively, or only has prospective effect. If it does not have retrospective effect, this inadvertently means that statutory coverage is missing for:

• an international commercial arbitration agreement

• entered into before 6 July 2010,

• which has the Model Law excluded (as allowed by the old s 21),

• with the seat of arbitration in an Australian state/territory which has enacted a new Commercial Arbitration Act.

The ‘black hole’ this creates leaves parties with claims under such agreements the opportunity

to avoid arbitration by resorting to litigation or pressuring opposing parties into a less than favourable settlement. This is clearly contrary to the parties’ agreement to submit to arbitration in the first place.

Legislative reform is therefore needed to address the legislative ‘black hole’, and until then, the lack of clarity does nothing to advance Australia’s ambitions to be the seat of choice in Asia for international commercial arbitration.

Melissa Tan is a Solicitor working at Wotton + Kearney.

I would amend s 21 of the International Arbitration Act 1974 (Cth) (IAA) to clarify whether or not it applies retrospectively to pre-6 July 2010 international arbitration agreements that have excluded the Model Law from operation.

A legislative ‘black hole’ currently exists for certain international arbitrations seated in Australia.

MELISSA TAN Solicitor

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The difficulty with the doctrine of privity is that because the third party is unable to sue on the contract in their own right, the circumstances often lead to an unjust result – the third party is unable to obtain the benefit that the parties to the contract expressly agreed to confer.

Currently, the doctrine of privity is an obstacle to a third party beneficiary taking action in their own right to enforce the contract, even if there was a clear intention that the contract would benefit that third party. Where such an intention exists, there ought to be a right given to the third party to enforce.

In the context of insurance contracts, privity does not create an obstacle, due to section 48(1) which states: “Where a person who is not a party to a contract of general insurance is specified or referred to in the contract, whether by name or otherwise, as a person to whom the insurance cover provided by the contract extends, that person has a right to recover the amount of the person’s loss from the insurer in accordance with the contract notwithstanding that the person is not a party to the contract.”

The closest the High Court of Australia has

come to reforming the doctrine of privity was in Trident General Insurance v McNiece. The opportunity to generally overturn the doctrine of privity in relation to contracts benefitting third parties in that case was not taken, with the joint judgment of Mason CJ and Wilson J, and that of Toohey J ultimately limiting their approach to contracts of liability insurance. A side-effect of the advent of s48(1) was that this decision in became less generally relevant .

Perhaps the time has come to take a wider statutory approach, as no later court has seemed inclined to push the approach of the Trident majority further, and the existing “exceptions” based on trust and agency etc put too great a burden on the third party intended to be benefitted. Notably, other jurisdictions have reformed privity. England introduced the Contracts (Rights of Third Parties) Act 1999 and America abandoned privity in the nineteenth century.

Dr Elisabeth Peden is a Barrister, Mediator and Professor of Law (contract, commercial, equity, evidence and property).

I would “fix” privity of contract by extending the approach taken in s48 of the Insurance Contracts Act 1984 (Cth) to all contracts made with the intention to benefit a third party:

ELISABETH PEDENBarrister, Mediator & Professor of Law



10

Presently, subsection 69(1) of the Act permits the Tribunal to make orders with respect to the payment of costs of proceedings before it “if in the particular circumstances of the case it is of the opinion that it is appropriate to do so”.

I would amend section 69 to add the following subsection:

“It will be appropriate for the Tribunal to order costs in proceedings which are dismissed on the basis that there is no finding the person is not capable of managing his or her own affairs, as is required under subsection 25G(a) of the Act.”

“At present the ‘frivolous and vexatious’ costs provisions in the Act set the bar too high.”

It is intended that this will have the effect of deterring third parties from bringing entirely

unmeritorious applications or applications in lieu of proceedings properly commenced for recovery of disputed debts. At present the ‘frivolous and vexatious’ costs provisions in the Act set the bar too high. Persons the subject of such applications and their families are compelled to respond to such applications or find that a financial management order is made by the Tribunal. The implications of being under a financial management order are far-reaching and life-changing. Applicants must be compelled to ‘think twice’ before making such applications and the only way to do this is by exposing their hip-pockets to the risk of a costs order.

Ben Fogarty is a Barrister at Denman Chambers, with expertise and interest in guardianship law, mental health law, criminal law, discrimination law and employment law.

I would amend the costs provisions of the Guardianship Act 1987 (NSW) so as to make unsuccessful applicants for financial management orders liable for the legal expenses reasonably incurred by the person for whom an order is sought and other interested parties who oppose the application, under certain conditions.

BEN FOGARTYBarrister



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If a woman works in a store that is robbed, or her partner assaults her, or she’s hit by a dangerous driver, the offender is punished. That is just. What is unjust is that when the woman is pregnant, the offence isn’t treated more seriously.

“This must change. The change should protect all pregnant women, not just some.”

This must change. The change should protect all pregnant women, not just some. If a woman is 19 weeks pregnant and is assaulted by her partner, or 32 weeks pregnant and hit by a drug-affected driver, the protection should

be the same. Both women have the right to choose to carry to full term, to fulfill their plans to deliver and love and raise a child, and to do so in a safe environment.

This change allows courts to pass a sentence which more fully reflects the circumstances. We do not need a separate offence that opens up the deeply personal debate of when a life begins, and risks valuing one pregnancy over another.

My proposed amendment allows courts to deal with an offence already proven, by formally recognising its consequences.

Joanna Knight is a Solicitor practicing in Campbelltown, NSW.

I would create an additional aggravating factor in s21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) where the victim was pregnant.

JOANNA KNIGHTSolicitor



12

The climate of NSW is changing, and changing fast. Temperatures in NSW have risen by 0.9°C since 1950, and as early as 2050 much of the state could experience temperature increases of between 2 and 3°C. With the Abbott government disbanding the Climate Commission (which examined state-by-state climate impacts in its landmark Critical Decade 2013 report) there is a need for a State government response to fill the information gap.

Under s 6 of the PEA Act, the EPA already has the power to ‘publish reports and information on any aspect of environmental protection’. The EPA should be mandated to report to residents of NSW the clear link between carbon pollution and the likely changes to the climate in NSW according to key emissions scenarios. EPA ‘Climate Impact’ reports should be released annually based upon the latest research and should be disseminated widely, through publication online, with one page summaries in rural, regional and urban newspapers.

Climate impacts need to be communicated more clearly and regularly to communities across NSW, particularly in rural areas. It is, for instance, not widely known that if greenhouse gas emissions are not curbed, by 2070 Dubbo’s climate may become as extreme as that of Emerald in Queensland today, or that Wilcannia may have 129 days above 35°C each year (compared with 63 today).

If communities are to adapt successfully to the climate change that is coming, and understand the need to cut greenhouse gas emissions to avert even further catastrophic warming, there is a need for regular, accurate, and independent regional-scale climate information. This will help inform public discussion and debate, and assist in planning and decision-making by citizens, industry, and government.

Tim Stephens is an Associate Professor and Co-Director of the Sydney Centre for International Law, Faculty of Law, University of Sydney.

The Protection of the Environment Administration Act 1991 (PEA Act) should be amended to include a statutory requirement for the Environmental Protection Authority (EPA) to provide regular updates to communities across NSW on projected climate change impacts in 2030, 2050, 2070 and beyond.

TIM STEPHENSAssociate Professor



13

Presently, the law provides a discretion to admit the evidence, and the Courts take a very liberal approach allowing evidence in in most cases. It is not uncommon to be 12 months post charge, three days into a trial, and be served with evidence that utterly destroys one’s case. This costs everyone - the Local, District and Supreme Courts, the accused, the prosecution and often legal aid - significant sums of money in preparing and running a trial that would not otherwise have been run.

‘A prohibition on admission in all but the most exceptional circumstances would ensure that investigators and prosecutors had a strong

incentive to properly and promptly divulge the case against an accused...’

A prohibition on admission in all but the most exceptional circumstances would ensure that investigators and prosecutors had a strong incentive to properly and promptly divulge the case against an accused, leading to more pleas of guilty before trial.

Emmanuel Kerkyasharian is a Barrister at Forbes Chambers.

I would amend the Criminal Procedure Act 1986 (NSW) to provide that evidence that is not served by the prosecution within the time the court allows is not admissible.

EMMANUEL KERKYASHARIAN Barrister



14

The Evidence Act 1995 discarded tests for competency of witnesses based on the age of the witness. This was to benefit children. However, since 1995, some District Court judges hearing child sexual assault trials involving child complainants have misapplied the clear requirements in s 13 (judges have presumed a child can only give unsworn testimony or judges have not strictly applied the provision for unsworn testimony). Either of these two errors has resulted in appeal courts finding that the complainant’s evidence is inadmissible (see for example Brooks (1998) 44 NSWLR 121; RJ [2010] NSWCCA 263; SH [2012] NSWCCA 79).

“The result has been that convictions have been quashed and new trials have

been ordered.”

The result has been that convictions have been quashed and new trials have been ordered. This is frustrating as the content of the child’s evidence would have been the same even if the judge had not erred in the application of s 13.

In practical terms, the application of s 13 does not affect the credibility or reliability of the evidence. The provision should be amended to deal with any future misapplication of this section.

Miiko Kumar is a Barrister & a Senior Lecturer at the Faculty of Law at the University of Sydney.

I would amend the Evidence Act 1995 (ss 13 and 21) so that it provides that a failure to comply with section 13 in respect of a witness who is less than twelve years does not cause that witness’ evidence to be rendered inadmissible.

MIIKO KUMARBarrister and Senior Lecturer



15

This provision needs to be amended so that punishment of serious driving offenders (including those speeding 20 km/h over the speed limit, going through red lights or using a mobile phone whilst driving) can be meted out more equitably. Wealthy serious driving offenders should, as far as practicable, suffer as much of a blow to their hip pocket as those on limited incomes.

In Finland, traffic fines are proportionate to the latest available data on an offender’s income (see www.poliisi.fi/Ip/home) and are calculated using a Ticket Calculator formula. Briefly, this formula incorporates the seriousness of the offence and takes into account the personal wealth of an offender as gauged by his or her net monthly income adjusted by number of dependents.

Take for example the traffic violation of failure to comply with a red light. In Finland, applying the Ticket Calculator, an offender earning a net income of 4000 euros per month (AU $5,795) with no dependents would be subject to a fine of 620 euros (AU $898). A dramatic example of how this fine system impacts more fairly than ours is the case where in 2002 the then Nokia Chief executive Ansii Vanjoki received a 116,000 Euro ticket for riding his Harley Davidson at 75 km/h in a Helsinki 50 kilometre zone.

Finland is not the only country with a sliding scale fine system - Switzerland also employs an income based

system. In Switzerland, two years ago a motorist who was speeding at 290 km/h received a fine of $1 million.

Fines are a desirable alternative to prison, which is punishment of last resort, but they must act effectively as a deterrent from a socio-economic perspective. The concept that “the punishment must fit the crime” must extend to determining a financial penalty so that all offenders fairly suffer the financial repercussions from fines imposed for serious driving offences.

Further, in my view, under a progressive fine system, a moiety of fines imposed should be directed to the NSW Road Safety Centre, Traffic Offender’s programs & non-governmental organisations involved in road safety.

On a slightly different note bearing in mind the privilege of holding a driver’s licence is accompanied by personal responsibility a Court should have a discretion in circumstances where a driver is convicted of dangerous driving causing death to order that the offender immediately financially support according to his or her means the deceased’s dependants along the lines of relevant child support/child maintenance federal legislation without affecting the provisions of the Compensation to Relatives Act which benefit the deceased dependants.

Greg Jones is a Barrister who practises in the areas of criminal law, commercial/corporate law, consumer law, personal injury, torts, administrative law and human rights.

I would change s 6 (Consideration of accused’s means to pay) of the Fines Act 1996 (NSW) to add a subsection (c) which would read: “In respect of a serious driving offence under the Road Transport Legislation the fine to be imposed whether by the relevant authority or by the court is to be proportionate to the offender’s income calculated in accordance with the formula prescribed in the Fines Act Regulations.”

GREG JONESBarrister



16

Section 106N of the Food Act 2003 (NSW) requires a standard food outlet to display nutritional information “of a kind prescribed by the regulations” in relation to the standard food items which that outlet sells. Clause 16S of the applicable Food Regulation 2010 (NSW) specifies that this information should include the average energy content of each item “expressed in kilojoules”. When considering the energy content of food, many Australian consumers are likely to be able to think more clearly in terms of calories than kilojoules.

‘When considering the energy content of food, many Australian consumers are

likely to be able to think more clearly in terms of calories than kilojoules.‘

Although the Food Regulation also requires an outlet to provide some context to its labeling by stating that “the average adult daily energy intake is 8,700 kJ”, a description of energy contents in calories as well as kilojoules would enable the average consumer to better understand how the food item fits in with their diet as a whole.

Carl Godfrey is a Policy Officer at the Department of the Environment.

I would amend clause 16S of the Food Regulation 2010 (NSW) to require the average energy content of standard food items to be expressed in calories as well as kilojoules.

CARL GODFREYPolicy Officer



17

“Unlike other Australian States, the Anti- Discrimination Act does not make discrimination on the ground of a person’s religious beliefs, exercise of the beliefs or manifestation of religious beliefs unlawful.”

Unlike other Australian States, the Anti-Discrimination Act does not make discrimination on the ground of a person’s religious beliefs, exercise of the beliefs or manifestation of religious beliefs unlawful. Rather, the limited protection in the Act from discrimination on the ground of ethno-religious origin has created confusion about what the expression

ethno-religious origin means, who is covered, who is excluded and how to prove a person’s ethno-religious origin. The interpretation of this expression by tribunals has led to some unexpected and unfortunate outcomes. In my view, it would be preferable to have a provision which reflected article 26 of the International Covenant on Civil and Political Rights, which relevantly provides:

“… the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Kate Eastman is a Barrister at Sixth Floor St James Hall Chambers practising in the areas of human rights, discrimination, employment, administrative and constitutional law.

Repeal the expression ‘ethno-religious origin’ in definition of ‘race’ in s 4 of the Anti-Discrimination Act 1977 (NSW). I would make discrimination on the ground of a person’s religious beliefs a separate, specific ground covered by the Act.

KATE EASTMAN SCSenior Counsel



18

The rising prevalence of unpaid internships is a product of the economics of labour; in industries like the media and arts,1 and law2 the supply of graduates vastly surpasses the number of entry level positions. In response to this reality, students have internalised as a norm the idea that unpaid internships are an effective method of gaining skills, experience, and professional networks to effectively leverage from unpaid internships into paid positions. Most worryingly, Andrew Stewart and Rosemary Owens found in their extensive report for the Fair Work Ombudsman (the Report), that ‘a growing number of businesses are choosing to engage unpaid interns to perform work that might otherwise …[be] done by paid employees…’3

The FW Act provides for only one instance of unpaid work, undertaken as part of a ‘vocational placement… as a requirement of an education or training course…’4 I believe that the FW Act could and should go further and prohibit arrangements

that provide for unpaid labour. In doing so, the FW Act would clarify much of the uncertainty surrounding this area of law and add teeth to the Fair Work Ombudsman’s present guidance.5 The legislative amendment should provide for serious consideration to be given to the purpose of the arrangement between an employer and intern, the obligations placed on the intern (to assess whether the work would ordinarily be performed by paid employees), and the nature of the enterprise that the intern is working in so as to not exclude social justice volunteering and internships. Legislating to clarify this issue would go some way to delineating the complex grey area that exists between volunteer labour and genuine work.

Dan Delimihalis is a Graduate lawyer at Ashurst Australia.

I would amend the Fair Work Act 2009 (Cth) (FW Act) to clarify the status of unpaid labour and prohibit arrangements that provide for unpaid labour.

DANIEL DELIMIHALISGraduate Solicitor

1 Andrew Stewart and Rosemary Owens, ‘The Nature, Prevalence and Regulation of Unpaid Work Experience, Internships and Trial Periods in Australia - Experience or Exploitation?’ (Report for the Fair Work Ombudsman, University of Adelaide, January 2013), [3.58]. 2 Stewart and Owens, above n 1, [3.61]. 3 Stewart and Owens, above n 1, [3.87]. 4 Fair Work Act 2009 (Cth), s 12. 5 Fair Work Ombudsman, Internships, Vocational Placements & Unpaid Work (March 2013) <http://www.fairwork.gov.au/factsheets/FWO-fact-sheet-Internships-Vocational-Placements-Unpaid-Work.pdf>



19

A labour hire arrangement exists where a labour hire firm employs a person and then assigns them to work for a third party company. This type of arrangement now applies to 5% of the workforce, and the number is growing.

“Labour hire arrangements obscure the employment relationship and make it difficult for a person to claim unfair dismissal.”

Labour hire arrangements obscure the employment relationship and make it difficult for a person to claim unfair dismissal. A person may be relieved of their services to a third party company but still be on the payroll of their labour hire firm. The cessation of work with the third party company is generally not regarded by the common law as a dismissal,

and therefore cannot attract unfair dismissal protection. This is despite the fact that the cessation of work may have led to the loss of secure and regular income, or that the person may have been under the employment of the third party company for an ongoing period of time.

An approach under the FW Act that extends unfair dismissal protection to a labour hire employee who has been hired on an ongoing basis for more than six months would help mitigate the lack of protection they currently receive. It would prevent a third party company from using labour hire to circumvent their obligation to dismiss fairly, but still maintain the flexibility that makes the arrangement appealing.

Lewis Hamilton is a Juris Doctor student studying at the University of Sydney.

I would amend the Fair Work Act 2009 (FW Act) to extend unfair dismissal protection to labour hire arrangements that have been ongoing for a period of more than six months.

LEWIS HAMILTONLaw Student



20



There is currently uncertainty about the proper application of the good faith bargaining requirements and whether they compel a bargaining representative to seek to conclude an agreement.

This uncertainty was highlighted in a series of cases culminating in the Federal Court’s decision in Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764. In that case, the Federal Court accepted a construction of s 228(1) to the effect that parties were under an obligation to try and conclude an agreement. This was despite express provisions which provided that bargaining representatives were not required to make concessions during bargaining or reach agreement on the terms which are to be included in an agreement.

As a consequence, while the good faith bargaining requirements were broadly construed, the provisions dealing with the remedies which might be granted were read down so as to render the provision ineffective and confusing in its application.

In practical terms, there are a range of options available for parties to regulate terms and conditions of employment. For example, a number of industries and employers have traditionally elected to apply contracts or awards rather than agreements. The Federal Court’s construction adopted in relation to s 228(1) now compels employers, if approached to bargain, to do so with a view to concluding an agreement, despite the prevailing circumstances and historical methods of employment regulation.

The application of the FW Act’s good faith bargaining requirements was an area considered by a panel which reviewed the Fair Work Act in mid 2012. At the time, the panel reported that the good faith bargaining laws were still in the process of being developed and no case had been made for any amendment. However, since that time, there have been conflicting interpretations and issues relating to the application of the provision.

Bilal Rauf is a Special Counsel in Employment law at Ashurst Australia.

I would amend s 228(1) of the Fair Work Act 2009 (Cth) (FW Act) to clarify that the good faith bargaining requirements do not oblige a bargaining representative to conclude an enterprise agreement

BILAL RAUFSpecial Counsel

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Under section 7C of the Privacy Act, an act or practice of an organisation otherwise subject to the Privacy Act is exempted from the scope of Australian data protection law if it directly relates to an individual’s employment relationship with that organisation, or an employee record held by the organisation. “Employment relationship” can refer to an employee’s current or past employment relationship with the organisation. “Employee record” is defined similarly broadly, and can include sensitive information (eg information about an employee’s trade union membership) or health information (eg information about the health and/or disability of the employee) within its scope.

“The fact that the exemption applies even after the employee’s relationship with the organisation has ended is

also worrying.”

The automatic application of the exemption means that the usual rules and restrictions around an organisation’s handling of personal information are irrelevant where an employer/employee relationship is concerned. This is particularly problematic when we consider the inherent power imbalance in that relationship. An employee may feel pressured to disclose personal information to his/her employer, and cannot be assured that the employer will protect such information. The fact that the exemption applies even after the employee’s relationship with the organisation has ended is also worrying.

Tanvi Mehta is a technology, media and telecommunications solicitor at Ashurst Australia.

Remove the “employee records” exemption from section 7C of the Privacy Act 1988 (Cth).

TANVI MEHTA Solicitor

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It is unclear, at present, whether this section allows for patents over genetic material that has been isolated from the human body. The issue is currently before the Full Federal Court of Australia (Cancer Voices v Myriad Genetics).

The court will consider whether taking genetic material out of the body can be considered an ‘invention’ or just a discovery of something that occurs in nature. It’s a simple question, and one that most Australians would have a strong gut reaction to. You wouldn’t be able to patent a collection of flowers just because you’d picked them out of the garden and arranged them in a vase. In the same way, you wouldn’t think that a company studying our genetic code could claim any kind of patent or ownership just because it isolated the sequence of a naturally occurring gene.

“If the court finds that isolated genetic material is an ‘invention’, and therefore

patentable, there will be significant consequences for public health.”

If the court finds that isolated genetic material is an ‘invention’, and therefore patentable, there will be significant consequences for public health. If a company can ‘own’ an isolated gene then they can decide how much the diagnostic test for mutations on that gene costs. There are also ethical problems with this scenario: how many steps from this, to commercial ownership of the human body?

If the current position is not reversed through litigation, then the Parliament should amend section 18 to clarify that isolated biological material that is structurally and functionally identical to such material as it exists in nature, is not a patentable invention.

Hannah Quadrio is a practising solicitor and the President of the NSW Society of Labor Lawyers.

I would amend section 18 of the Patents Act 1990 (Cth), which deals with patentable inventions.

HANNAH QUADRIOSolicitor


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The Australian legal profession is governed by no less than 55 different bodies and more than 4,700 pages of legislation and regulation. Indeed, there are 448 solicitors in Tasmania who are governed by their own distinct regulatory scheme.

The National Legal Profession Reform, championed by former Attorney-General, Robert McClelland, was designed to harmonise jurisdictional differences that existed in the regulation of the profession. Today, differences remain in the regulation of admissions, practising certificates, costs agreements and disclosure, MCLE requirements, complaints handling and discipline.

“Today, the legal services market has entered a new phase in its evolution - the internationalisation of the law.”

The National Legal Profession Reform seeks to deliver a uniformly regulated Australian legal services market two decades after a national market was well and truly established. Today, the legal services market has entered a new phase in its evolution - the internationalisation of the law. Fuelled by global investment, the demands of global clients and the need to find growth opportunities, lawyers have sought out new markets and new opportunities outside their jurisdiction. This can be seen in the increasing levels of work being done by Australian firms offshore, and in the recent entry of UK and US firms.

In 2007/08 the Australian legal sector employed more than 99,000 people across the country and generated some $18 billion in income. It is time the regulation of the profession caught up with the commercial realities of this important and productive sector of the Australian economy.

Pat Garcia is the Vice President of the NSW Society of Labor Lawyers.

I would introduce the National Legal Profession Reform.

PAT GARCIASolicitor



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To enable lawyers to charge “Percentage Based Contingency Fees” will help more people to have their claims for compensation heard and determined than is possible at present. It will improve access to justice. The availability of contingency fees will complement the legal services assistance sector and the litigation funding industry by providing an additional model by which complex and substantial claims, such as consumer and commercial class actions, can be funded.

Contingency fees align the interests of the lawyers with those of their clients. The incentive for both parties is for the largest payout in the shortest possible time. Time billed becomes irrelevant while inefficiencies and delay become the enemy of the lawyer as well as the client, whereas in traditional litigation, lawyers who are paid by the hour benefit from the convoluted road that we take to resolve disputes.

Contingency fees will also introduce much needed competition into the litigation funding market where barriers to entry are substantial and the 40% commission being recovered by most funders is, in the author’s opinion, too high. Commercial litigation funders, driven by their desire for high margins to cover their substantial risks, are constrained to fund actions that are predicted to recover at least three times their estimated outlay. If a class action, for example, is likely to cost a funder $4m to

conclude, it will not be underwritten by the funder unless the recovery is likely to be greater than $30m. By comparison, lawyers should be happy with a 25% contingency fee, especially if they are not required to guarantee the adverse costs risk. A law firm considering an action for which costs and disbursements may total $4m, may be willing to conduct a meritorious claim on a contingency fee basis if the expected recovery is greater than $16m, as party and party costs should also be recovered.

Further, the legal assistance sector is starved of funds and unable to assist any but the most marginalised. Lawyers acting on a conditional (speculative) fee basis help a lot of people but the risks associated with larger cases, such as class actions, are too much to expect a law firm to carry without a proper upside. Contingency fees offer this.

Finally, litigation funders operate outside of the legal regulatory system whereas lawyers acting on a contingency fee basis will be well and truly in it and, for most actions, the lawyers’ arrangements will be subject to supervision of the court.

It looks like a “win/win” proposal to me.

Ben Slade is the Managing Principal at Maurice Blackburn Lawyers.

I would like to see the ban on lawyers charging contingency fees removed from the Legal Profession Acts around the country. While the impact of my proposed tweak may be substantial, it is likely that, for each jurisdiction, the amendment required to bring it about could be achieved with a very small tweak.

BEN SLADESolicitor and Managing Principal

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The conflict between a firm’s duty to the client and duty to the court is ever present in the handling of sensitive documents during litigation, and one occasionally hears of evidence “appearing” long after it was sought. Pair this with the millions of documents held by massive corporations in both hard copy and electronic form, and it is almost certain that discovery of existing key evidence is not always achieved. This is doubly so in cases of closely held, high level secrets of corporate misconduct such as cartel behaviour.

“Many organisations already exist to assist law firms in these processes.”

Rules should be inserted to allow the

appointment by agreement between the parties, or by the court where appropriate, of a sufficiently equipped third party who oversees or even conducts the discovery process. Many organisations already exist to assist law firms in these processes. It is not so great a leap to see independent firms of lawyers and information technology experts adequately ensuring the discovery process is conducted appropriately and without disruption to the proceedings.

Anthony Krensel is a Graduate Solicitor in Class Actions at Maurice Blackburn Lawyers.

I would amend division 20.2 of the Federal Court Rules, and equivalent parts of state legislation concerning discovery.

ANTHONY KRENSELGraduate Solicitor



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Subsections 500(6H) and (6J) prohibit the Administrative Appeals Tribunal (AAT), in the review of a visa cancellation or refusal on character grounds, from having regard to oral or documentary “information presented in support of an applicant’s case” unless the Minister has had two business days’ notice of that information. “Information” is undefined giving it ostensible application to oral and written submissions, as well as evidence deposed.

“Contrary to s 2A of the AAT Act 1975 (Cth), these provisions substantially disadvantage an applicant.”

Contrary to s 2A of the AAT Act 1975 (Cth), these provisions substantially disadvantage an applicant. There is no counterbalancing obligation of disclosure on the Minister thereby precluding an applicant

from responding to surprise evidence. Further, an applicant who must exhibit worthy and respectable values as well as strong ties to Australia (e.g. A parent of an Australian citizen) is precluded from straying beyond the words of a pre-prepared statement.

The expressed parliamentary purpose of the subsections, to prevent adjournments necessitated by late service of material prolonging the stay of an applicant in Australia, is illusory as the AAT and the applicant have 84 days to have the case filed, heard and determined. After that period the AAT is deemed to have decided the case against the applicant (see s500(6L)).

Awais Ahmad is a Barrister at Maurice Byers Chambers.

AWAIS AHMADBarrister

I would repeal or amend ss 500(6H) and (6J) of the Migration Act 1958 (Cth).



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Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994, an application for review must be submitted to the MRT within 21 days of the applicant being deemed to have been notified of the delegate’s decision. For the RRT, a 28 day time frame exists (s.412(1)(b)).

“Neither Tribunal has the discretion to accept an application that is lodged outside these prescribed limits.”

Neither Tribunal has the discretion to accept an application that is lodged outside these prescribed limits. Therefore no matter what the reason, whether it be a misunderstanding by a self-represented asylum-seeker or a procedural omission on behalf of a migration agent, no

extension can be granted.

Consequently the only legal remedy available for those in this position is an application to the High Court to review the decision of the delegate. As noted in Re Minister for Immigration; ex parte Miah (2001) 206 CLR 57, such inflexibility runs counter to legal tradition as it prioritises form over substance.

Given that the potential consequences of this restriction may actually be a matter of life and death for certain applicants, surely a more accommodating legislative framework is required.

Haren Pararajasingham is a solicitor at Clayton Utz.

The Migration Act 1958 should be amended to allow the Refugee Review Tribunal (RRT) and Migration Review Tribunal (MRT) the discretion to extend the time for lodging review applications.

HAREN PARARAJASINGHAM Solicitor



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In a liberal democracy, asylum seekers fleeing persecution should be able to access support and protection - not ongoing incarceration.

In 2004, in the case of Al Kateb, a narrow majority of the High Court reasoned that the continuing detention of a stateless asylum seeker was lawful even where there was no prospect of him being returned to another country or granted a visa to be released into the community. In a recent High Court decision on regulations relating to ASIO security assessments,1 both Bell and Gummow JJ identified in obiter that where it was not possible or practicable to deport a non-citizen in detention, the principle of “habeas corpus” should be invoked to effect their release (subject to certain conditions).

“In 2013, Ranjini, a recognised Tamil refugee deemed a

“security risk,” languishes in detention.”

In 2013, Ranjini, a recognised Tamil refugee deemed a “security risk,” languishes in detention. She is unable to respond to the claims of why ASIO believes she is a threat to the community. She is not alone – many others share her fate. While the independent review of ASIO decisions is another matter, Ranjini’s case is a potent reminder of the precarious position of refugees and asylum seekers who, at the behest of Executive or administrative decisions, can remain in detention indefinitely. Out of sight, out of mind.

Senthorun Raj is a Churchill Fellow and is completing a PhD at the Sydney Law School.

End the indefinite detention of refugees and asylum seekers. Currently, sections 189, 196 and 198 of the Migration Act 1958 (Cth) allow indefinite detention to occur.

SENTHORUN RAJChurchill Fellow & PHD Student



1 Plaintiff M47 – 2012 v Director of General Security [2012] HCA 46.

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2013 Legal Tweaks