Balance 1-21

E

1|21

Meet your 2021 Council members PAGE 16

Coercive control, social entrapment and criminalised women PAGE 20

Contents Balance 1|21

Noticeboard 4 From the President: Happy New Year and welcome to 2021!

From the CEO: Society news and updates

© Law Society Northern Territory.

Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of the Law Society NT. Balance is the official journal of the Law Society NT and is published quarterly. The Society reserves the right to refuse to publish submitted advertisements, articles and photographs upon their discretion.

All contributions, letters, advertising and enquiries should be forwarded via email to: balance@lawsocietynt.asn.au

6

8

28

Directors’ duties and cybersecurity

31

Is it time to change jobs?

33

Criminal Lawyers Association of the Northern Territory: Coercive control, domestic violence and our unique jurisdiction 10

Simple things you can do to lead a life of meaning and purpose 35 An update from Lawcover

37

Women lawyers news and updates

Let’s close the super gap

40

12 CASE NOTES

Young lawyers news and updates

14

Meet your 2021 Council members

16

Supreme Court 43 Family Law 45 High Court 51 Federal Court 55

Annual CPD obligations

17

Endnotes 58

Coercive control, social entrapment and criminalised women

20

Unless it is clearly indicated, the views expressed in Balance are not to be taken as those of, or endorsed by, the Law Society NT. No responsibility whatsoever is accepted by the Law Society NT for any opinion, information or advertisement contained within Balance.

New service: Migration and family violence advice for women

NOTICEBOARD CONFERENCES AND EVENTS Please note that dates and times are subject to change.

LAW SOCIETY NORTHERN TERRITORY

Dates, times and information subject to change.

Please check with event hosts regarding information listed below.

8.30 am – 5.00 pm, Mon – Fri excluding public holidays

~ 2021 IWD LAW-N-BOWLS EVENING

GPO Box 2388 Darwin NT 0801

When: Friday 5 March 2021 Where: Alice Springs Golf Club Host: NT Women Lawyers & NT Young Lawyers Information: https://tinyurl.com/syem2ynn

3/6 Lindsay St Darwin NT 0800 T

(08) 8981 5104

E lawsoc@lawsocietynt.asn.au www.lawsocietynt.asn.au www.facebook.com/lawsocietynt www.twitter.com/lawsocietynt ABN 62 208 314 893

~ INTERNATIONAL WOMEN’S DAY BREAKFAST When: Thursday 11 March 2021 Where: Hilton Hotel Darwin Host: NT Women Lawyers & NT Young Lawyers Registration: https://tinyurl.com/a5mp49te

COUNCIL Emma Farnell, President Richard Henschke, Vice-President Matthew Littlejohn, Treasurer Victoria Bell, Secretary

CPD - 2021 TIPS ON TRUST MONEY & CHANGES TO ~REPORTING OBLIGATIONS Wednesday 17 March 2021, 12.00 pm - 02.00 pm Host: Law Society NT Registration: https://tinyurl.com/5xjt4dfc

Anna Gill, Councillor Bernadette Raumteen, Councillor Bronwyn Haack, Councillor Dr Guzyal Hill, Councillor Jim McMillan, Councillor Kelly Stephenson, Councillor Lisa O’Donoghue, Councillor

~ CPD - MANAGING CHANGE AND THE FUTURE WORKSHOPS Thursday 18 March 2021, 12.00 pm - 02.00 pm Host: Law Society NT Registration: https://tinyurl.com/v0vpk2sq

Michael Vailas, Councillor Nadia D’Souza, councillor Nicholas Salagaras, Councillor Peggy Cheong, Councillor Ruth Morley, Councillor

~ Law Week Northern Territory

SECRETARIAT

When: 17–23 May 2021 Information: https://lawsocietynt.asn.au/events/law-week.html

Kelvin Strange Chief Executive Officer

~ 18

BIENNIAL CONFERENCE ‘I can’t believe it’s not Bali – Lock downs and lock ups’ When: 10-13 August 2021 Where: Darwin Host: Criminal Lawyers Association of the NT Registration: https://www.solusibs.com/upcoming-conferences TH

~ MEMBERS’ CHRISTMAS DRINKS – SAVE THE DATES Darwin: Friday 3 December 2021 Alice Springs: Thursday 9 December 2021 Host: Law Society NT

BALANCE CONTENT DEADLINES 26 May, 18 August and 17 November 2021

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LAW SOCIETY NT BALANCE EDITION 1|21

Julie Davis Corporate Services Manager Fiona Kepert Manager Regulatory Services Kieren Ko Regulatory Services Solicitor Des Crowe Complaints Investigator Marian Wilson Senior Policy Lawyer & Pro Bono Coordinator Carolyn Zombolas Events & CPD Coordinator Leonie Stokes Licensing Officer Evie Buffon Publications & Communications Officer Leana Wood Receptionist & Administration Assistant

Curated by a team of over 50 Australian legal professionals, LEAP clients enjoy the ability to: Work with confidence or expand practice areas with matter plans for all common areas of law, providing practical commentary and precedents in sequential order.

Easily produce documents that automatically merge with LEAP data with over 5,500 integrated precedents.

Access accurate information quickly with an extensive library of commentaries and reference materials featuring relevant legislation, cases and procedure.

Exclusive integration with

For more information about By Lawyers visit: leap.com.au/by-lawyers

FROM THE PRESIDENT

EMMA FARNELL PRESIDENT LAW SOCIETY NT

Happy New Year and welcome to 2021!

I

write the above despite it being March at the time of publication of this edition of Balance.

The Society has been publishing Balance since 1991 and it is traditional for this column to open with a hope that the profession enjoyed a break over the Christmas/New Year period and wishes that the new year is off to a good start. I have no desire to be cutting edge or innovative in this respect and despite the festive period involving far-less international travel than is usual: welcome back to one of the best wet seasons (or wettest summers in Central Australia) in years.

In making the above claims as to history I am conscious of needing to provide evidence to the satisfaction of 635 lawyers. I am also mindful of the Presidents’ who have written this very same column over the previous decades and the great but varied style which they have done so.

A short, non-random, sample is below1: 1. Maria Savvas (2020): Welcome everyone to 2020.... May 2020 bring us all good fortune, good health and success! In hindsight 2020 was generally a very challenging year with a significantly greater focus on public health (including general and mental health) then was envisaged in earlier that year. The scope and the impact of the COVID-19 pandemic were, at the time of publication, unknown

6

LAW SOCIETY NT BALANCE EDITION 1|21

however it was heartening to be part of a profession that readily adapted to new ways of working.

2. Jon Tippet (2001): Mr Tippet welcomed the new century with a poetic turn of phrase as follows: Dawn 01.01.01. It found me on my back in the pool yard face inconveniently directed skywards. A heavy still dawn. Silence before the coming heat tripped a bandsaw of cicadas. The quiet disturbed by the plop of debris falling on the fronds of the fan palm as a sulphur-crested furtively demolished my star-apples. A bronze wing calling Machu Picu. I am conscious this is the start of a new decade (rather then a new century) and this should be recognised in some meaningful way. But I am also conscious that commercial lawyers, such as myself, are often considered to be rather pragmatic as opposed to poetic. I am also concerned that any personal efforts are likely to produce some sort of tortured and juvenile limerick.

3. John Stirk (1991): Mr Stirk’s column was titled “Buck$top” and a key update of the column was to relay the then Attorney-General’s (Mr Daryl Manzie) desire for lawyers to continually upgrade their knowledge and to maintain a keen interest in the dynamics of the law (and noting the Society was considering whether mandatory CLE should be introduced

to the profession). It is comforting to note that continuing professional development has been a topic of conversation (and keen interest) for over 20 years. Humorously, and noting the trials and tribulations of ‘new’ technology during 2020, a significant update in the March 1991 edition of Balance was the assurance that “You’ll probably be delighted to know that the phone system is being upgraded, meaning that when you call you should not get the eternal and irritating engaged signal.” As a final note—this President is taking suggestions for the name of the column.

I am currently 62 days into the term as President of the Society. To date it has been a busy time for the Society with the Opening of the Legal Year (in Darwin and Alice Springs) and organising the Society’s various committees and their work. I have been meeting with the Society’s key stakeholders, attending committee meetings and hope to have further opportunities to meet members over the coming weeks.

As always, I welcome any comments or feedback from members about any issues of importance to members and our local profession. I can be contacted at president@lawsocietynt.asn.au.

1. These gems can be located in past publications of Balance; which can be found on Austlii at: http://

WE’RE RECRUITING Senior Solicitor (Complaints Investigator) The Law Society NT is looking for an experienced solicitor to join the regulatory team. The primary focus is on investigating and providing advice to the Society in relation to complaints against lawyers; this requires someone with strong interpersonal skills and excellent analytical abilities. The role also involves advice to the Society and guidance to lawyers and members of the public on regulatory matters and legal ethics.

This is an opportunity to join a small but supportive team with good work/life balance.

Please contact Fiona Kepert on (08) 8981 5104 for more information about the role.

Applications can be submitted via email to mrs@lawsocietynt.asn.au and should include your curriculum vitae and a 1–2 page summary on how your experience equips you to meet the key responsibilities and skills as set out in the job description which can be found on the Society’s website here.

classic.austlii.edu.au/au/journals/BalJlNTLawSoc/.

Applications are due by 19 March 2021.

Happy Birthday Balance, you’re 30 years old!

Fiona Kepert Manager Regulatory Services mrs@lawsocietynt.asn.au (08) 8981 5104

FROM THE CEO

KELVIN STRANGE CHIEF EXECUTIVE OFFICER LAW SOCIETY NT

Society news and updates START AT THE TOP FAMILY LAW CONFERENCE 23 JANUARY 2021

W

ell 2021 has well and truly arrived and the Society has hit the ground running. First and foremost, I am pleased (and relieved) to report that the transfer of presidential powers at the Society has run much more smoothly than elsewhere in the world with barely a mention of impeachment. This is just as well, given the prospect of a very busy year ahead still impacted very much by things pandemic.

The year began with the running of a very successful Start at the Top Family Law Conference over the Australia Day weekend. The decision to proceed with the conference this year was not made without some trepidation and so it was extremely pleasing to have over 75 delegates attend the conference with a very large contingent from interstate. Once again the efforts of Judge Cole OAM of the Federal Circuit Court, the

8

LAW SOCIETY NT BALANCE EDITION 1|21

Family Law Committee and the Secretariat’s Carolyn Zombolas in organising the conference must be acknowledged.

Hot on the heels of the conference came the annual Opening of the Legal Year events in Darwin and Alice Springs both of which were well attended. As always the Society thanks the Attorney‑General and Chief Justice for their attendance and contribution. Thanks is also extended to Dr Jacoba Brasch QC, the current Law Council of Australia President for her interesting insights into her connections other matters.

The Society would also like to congratulate Tass Liveris who in December was elected to the position of President Elect of the Law Council of Australia.

Tass has had a long association with both the Society and the Law Council representing the Northern Territory legal

Recent Law Society NT advocacy and activities SUBMISSIONS Specialists Approach to Domestic & Family Violence 04/02/21

ENGAGEMENTS Bilata Pathways Reference Group Meeting & morning tea with Pre-Law participants 04/02/21 President & CEO meeting with Chief Judge Local Court 04/02/21 President & CEO meeting with NTBA 05/02/2021

profession and the Society wishes him well in his new role.

I must also mention that the Society’s new Council has already commenced its work with its second meeting for the year held last week. There are quite a few new faces on Council this year with their details included in this edition, so please take a moment to review who’s who. The work of the various committees have also recommenced.

It is to be hoped that this year will see a gradual return to normality with a successful rollout of a vaccination program and general reopening of trade, commerce and travel between the States and Territories and eventually internationally. It is likely however that the year will again present its own surprises, challenges and opportunities to both the legal profession and wider community.

On behalf of everyone here at the Secretariat I wish everyone the best for 2021. The Society and the Secretariat looks forward to working with the profession throughout the year and assisting in any way.

President & CEO meeting with AGD 05/02/21 President & CEO meeting with Chief Justice 15/02/21

CPDs HELD Start at the Top Family Law Conference

NT legislation

INTRO

PASSED

AMENDED

Taxation Administration Amendment Bill 2021

25/02/21

Mineral Royalty Amendment Bill 2021

25/02/21

Planning Amendment Bill 2021

16/02/21

25/02/21

NO

Medicines, Poisons and Therapeutic Goods Amendment Bill 2021

16/02/21

23/02/21

NO

Police Administration Amendment Bill 2021

18/02/21

Criminal Code Amendment Bill 2021

18/02/21

Liquor Further Amendment Bill 2020

11/11/20

12/11/20

YES

Statute Law Repeals Bill 2020

12/11/20

24/02/21

NO

Treasury and Finance Legislation Amendment Bill 2020

10/11/20

11/12/20

NO

Appropriation (2020-2021) Bill 2020

10/11/20

11/12/20

NO

Evidence (National Uniform Legislation) Amendment Bill 2020

12/11/20

18/02/21

NO

Weapons Control Amendment Bill 2020

12/11/20

16/02/21

NO

Statute Law Revision Bill 2020

22/10/20

12/11/20

NO

Justice and Other Legislation Amendment Bill 2020

22/10/20

Legislation information sourced 9.19 am, 26/02/2021 from: https://legislation.nt.gov.au/en/LegislationPortal/Bills/By-Session

ceo@lawsocietynt.asn.au (08) 8981 5104

LAW SOCIETY NT BALANCE EDITION 1|21

9

CL ANT

MARTY AUST PRESIDENT CRIMINAL LAWYERS ASSOCIATION OF THE NORTHERN TERRITORY (CLANT)

Coercive control, domestic violence and our unique jurisdiction

A

re new specific coercive control offences warranted, having regard to the current domestic violence laws in the Northern Territory?

Education and support rather than fresh offences needs to be a priority when it comes to tackling coercive control within domestic relationships.

The Domestic and Family Violence Act in the Northern Territory has a very broad definition of ‘domestic violence’ which already includes intimidation and economic abuse, as well as attempts at either. Intimidation includes ‘any conduct that has the effect of unreasonably controlling the person or causing the person mental harm’, and allows for consideration of any pattern of behaviour that may be relevant to the question of intimidation. Further, economic abuse is broadly defined in section 8 of the Act and includes, amongst other things, ‘coercing the person to relinquish control over assets or income’ and ‘unreasonably preventing the person from taking part in decisions over household expenditure…’

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LAW SOCIETY NT BALANCE EDITION 1|21

Our definition appears to sufficiently cover the scope of behaviours that fall within a range of conduct amounting to ‘coercive control’ as discussed in reports or research relevant to private member’s bills tabled in other jurisdictions.

Community education around socially acceptable relationships and available supports to persons and families of persons experiencing or at risk of experiencing coercive control, should be a key concern when engaging in any discussion around the issue.

It may be that current providers of assistance to protected persons, whether it be the police or non-government organisations, need to consider the scope of the legislation that is already in existence. The pro‑forma police DVO application form has a box for harassing or intimidating and there is also a box entitled ‘other’ that can be ticked and filled in with the term ‘economic abuse.’

18TH BIENNIAL CONFERENCE I can’t believe it’s not Bali: Lockdowns and Lockups 10–13 August 2021 Criminal Lawyers Association of the NT Click here for more information

The true picture of issues relating to coercive control is currently difficult to gauge, however it is anecdotally true that offences of breaching domestic violence orders in the NT are predominately the result of non-violent interactions. Most of these breaches occur between persons with entrenched social or medical issues including alcohol and drug addiction; and homelessness. It is reasonable to imagine coercive control issues arising in the circumstances of such relationships.

Given the circumstances of our jurisdiction and our broad ranging definition of domestic violence, there seems little basis to create further offences.

Instead, any urgent reform to our current domestic violence laws should focus on repealing mandatory sentencing for breaches of orders.

If we can eradicate mandatory sentencing and incorporate the Aboriginal Justice Agreement into our sentencing laws, it is hoped that therapeutic and alternative sentencing regimes can be utilised that better address the cultural, social and medical issues and other underlying criminogenic risk factors unique to our jurisdiction.

If we can achieve this, then in time we should see marked improvements in the health and safety of our community, which in turn should promote healthier and more supportive family and domestic relationships.

www.clant.org.au 0421 782 339 @Crim_Lawyers_NT

MEMBER UPDATE The way in which you purchase your CPD DVDs is changing The Law Society NT is shifting from a DVD‑based system to a convenient online video‑streaming service to deliver recorded CPD content to members.

Ordering a CPD recording is simple: Go to https://lawsocietynt.asn.au/profession/ cpd/purchase-cpd-recordings.html and download the order form.

Fill in the your details and email it to ecc@lawsocietynt.asn.au Once payment has been confirmed as received, you will be emailed a link and password giving you access to view the CPD recording from a computer or mobile device.

You will also have the option to download the CPD recording to view at a later time should you wish to do so.

Carolyn Zombolas Events & CPD Coordinator ecc@lawsocietynt.asn.au (08) 8981 5104

NT WL A

TRACI KEYS PRESIDENT NORTHERN TERRITORY WOMEN LAWYERS ASSOCIATION (NTWLA)

Women lawyers news and updates

W

e have welcomed in a new legal year with many of our members attending official events in Darwin and Alice Springs. Dr Jacoba Brasch QC, President of the Law Council of Australia provided speeches in Darwin and Alice Springs, highlighting the challenges faced by the legal profession throughout 2020. Also welcoming in the new year were speeches by his His Honour Chief Justice Michael Grant and the Honourable Attorney‑General and Minister for Justice Selina Uibo MLA. NTWLA also welcomed comments from the newly elected President of the Law Society for the Northern Territory Emma Farnell, that sexual harassment would be an area of priority in 2021.

NTWLA welcomed in the new year with a planning meeting in late January 2021 to determine our priorities and focuses for the year. While some of these plans are still being pinned down, there are some exciting events contemplated for our members and those interested in joining us. We hope to resume Patron’s Drinks—conditions permitting. We are also hoping to run our “You Can’t Ask That” event, an opportunity for members (and non-members) to ask questions of senior members of the profession that they have never felt brave enough to ask. We also aim to continue our work in the sexual harassment space. Please watch our Facebook space for a list of events for the year, in Darwin and Alice Springs.

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LAW SOCIETY NT BALANCE EDITION 1|21

Back by popular demand Our first event for 2021, in conjunction with the NTYL, is our annual International Women’s Day Breakfast. The breakfast will be held at the Hilton Hotel on Thursday 11 March 2021. The theme for this year is #Choose to Challenge. Please get in early to get your ticket as the event always sells out well before the day. The link to tickets can be found here.

In Alice Springs, also in conjunction with NTYL, will be our Law-n-Bowls event on 5 March 2021 from 5.30–7.00 pm at the Alice Springs Golf Club.

Our speaker for this event will be the Honourable Judge Sarah McNamara. Free for members and $10 for non-members.

New to our voluntary executive committee, is Ashlea Begg (NAAJA) who has agreed to be our Alice Springs Vice-President and ordinary Committee Members: Tijana Jones (A/Civil Registrar) and Megan Ellis (CAWLS).

Welcome to the NTWLA.

Passing of a Member, Committee Member, a friend and a colleague On a sadder note is the passing of Colleen Atkinson. Colleen had been a member of NTWLA since 2013-14, and was on the committee from 2013-2015, and contributed to many not-forprofit community organisations over the years. She was involved in amendments to the NTWLA constitution and a regular at functions. Colleen will be dearly missed.

Why be a member?

Lastly, if you are reading this article and you are not a member or perhaps a lapsed member, now is a good time to consider joining.

Being a member allows you to participate in events coming up throughout the year, (often cheaper or free), and over this next year we will invite members to be involved in the creation, organising and delivery of our events, or contribute in other ways so members can help shape the association in ways that matter to female lawyers. This

approach allows participation without the full commitment of becoming a committee member. Please email us if you are interested.

I look forward to seeing all our members throughout 2021.

Traci President NTWLA

ntwomenlawyersassoc@ gmail.com @ntwomenlawyers

INTERNATIONAL WOMEN’S DAY BREAKFAST Thursday 11 March 2021 Hilton Hotel 6.30–8.30 am Panel Discussion Click here for more information and to register

NT YL

NICHOLAS SALAGARAS PRESIDENT NORTHERN TERRITORY YOUNG LAWYERS (NTYL)

Young lawyers news and updates

L

14

et us start by thanking Sarah Strzelecki and the 2020 committee who showed some great strength through an ‘unprecedented’ and ‘challenging’ year (feel free to insert your favourite 2020 buzzword)... From the rolling red hills of the Alice, to the (at times not-so-bustling) streets of Darwin, the 2020 committee took online mediums within their stride finding new and innovative ways to ensure that our young lawyers had access to CPDs and support in a jurisdiction where isolation and distance work was already a work place hazard. Fortunately (and again proving that the NT really is the place to be), our young lawyers were back in action with over 100 people attending our trivia fundraiser at the end of last year.

Annual General Meeting and 2021 Committee

The current committee is excited to bring back a number of events that were missed last year, including the sunset sail! This event has previously been a big hit and has completely sold out. Due to COVID restrictions, the committee will be looking into bigger and better boats to accommodate as many young lawyers and their friends as possible.

Whilst the NTYL won’t be going quite as big as the ‘Ruby Princess’, members and friends should remember that the event will be ticketed and to keep an eye on our Facebook page to ensure they don’t miss out on tickets.

Treasurer Emma Cook NT Legal Aid Commission

LAW SOCIETY NT BALANCE EDITION 1|21

On 27 November 2020, NTYL held our AGM at Parliament House—a big thanks to The Honourable Ngaree Ah Kit, Speaker for providing us with this space. We are pleased advise the profession of this year’s committee: President Nicholas Salagaras Hall & Wilcox Vice-President (Darwin) Kate Bremner Solicitor for the NT Vice-President (Regional) Sara Dobbyn Director of Public Prosecutions

Secretary Chris Teng Ward Keller General Committee members Bettina Kobelt Ward Keller Jessica Lena Ward Keller Kirralee Pavy Hunt & Hunt Kyla Pajarillo Minter Ellison Land Williamson Office of the Ombudsman Monica Thompson Supreme Court of the NT Taylah Cramp Solicitor for the NT

2020 Christmas parties The 2020 NTYL social season ended with its Christmas drinks in Darwin and Alice Springs. In Darwin, a celebration was held after the AGM at the Deck Bar with a great attendance from our members. The Alice Springs members held a fantastic celebration at Epilogue Lounge.

We would like to that all those who attended and supported our events in 2020.

2021 Welcome Drinks The Darwin Welcome Drinks were be held on Friday, 26 February 2021 at Six Tanks Brew Co on Mitchell Street from 5.00 pm.

2021 International Women’s Day (IWD) We are pleased to advise that NTYL have partnered with NT Womens Lawyers Association for the third year with events in both Darwin and Alice Springs guided by the global theme #ChooseToChallenge.

DARWIN Breakfast at the Hilton Hotel on Friday 6 March 2020 kicking off at 6.30 am (sharp) – 8.30 am with an exciting panel to be announced very soon.

For further announcements, please refer to NTYL and NTWLA Facebook pages and tickets can be purchased through Eventbrite.

ALICE SPRINGS After its resounding success last year, Law-n-Bowls will be back again with special guest speaker Local Court Judge Sarah McNamara.

Further details will follow, but for now, please block the evening of

5 March 2021 out in your diaries and join us at the Alice Springs Golf Club.

For further detail on all NTYL events, follow us on Facebook or email us to be added to the mailing list. If you would like to become a member please head to our page on the Law Society NT website. Details below.

NTYL.Committee@gmail.com @NTYLpage

NTYL membership lawsoc@lawsocietynt.asn.au

2021 NTYL Calendar 5 MARCH International Womens Day, Law-N-Bowls at the Alice Springs Golf Club (Alice Springs) 11 MARCH International Womens Day, breakfast and panel discussion at Hilton Darwin (Darwin) 15 MAY 2021 Law Week, The Great Debate (Darwin) JUNE/JULY Dry season (Darwin) and winter (Alice Springs) social events AUGUST Golden Gavel (Darwin, streamed live to Alice Springs) SEPTEMBER Trivia fundraiser (Darwin) NOVEMBER Annual General Meeting (Darwin) Christmas drinks (Darwin and Alice Springs) With 3-4 Continuing Professional Development events held over the course of the year in both Darwin, Alice Springs and streamed live to regional members.

L AW SOCIET Y NT UPDATE

Meet your 2021 Council members

Emma Farnell

16

Richard Henschke

Matthew Littlejohn

Victoria Bell

Anna Gill

Bernadette Raumteen

PRESIDENT

VICE-PRESIDENT

TREASURER

SECRETARY

COUNCILLOR

COUNCILLOR

Dept. Industry, Tourism & Trade

Halfpennys Lawyers

William Forster Chambers

Tindall Gask Bentley Lawyers

NAAJA

Maher Raumteen Solicitors

Bronwyn Haack

Dr Guzyal Hill

Jim McMillan

Kelly Stephenson

Lisa O’Donoghue

Michael Vailas

COUNCILLOR

COUNCILLOR

COUNCILLOR 1

COUNCILLOR

COUNCILLOR

COUNCILLOR

Solicitor for the NT

Charles Darwin University

Murray Chambers

De Silva Hebron

Solicitor for the NT

Bowden McCormack Lawyers

Nadia D’Souza

Nicholas Salagaras

Peggy Cheong

COUNCILLOR

COUNCILLOR 2

COUNCILLOR

COUNCILLOR

HWL Ebsworth

Hall & Wilcox

Hunt & Hunt

Ruth Morley Legal Services

LAW SOCIETY NT BALANCE EDITION 1|21

Ruth Morley

1

nominated by NT Bar Association

2

nominated by NT Young Lawyers

Annual CPD obligations The CPD year begins on 1 April and ends on 31 March the following year during which practitioners must complete a minimum of 10 CPD points in four different competency areas to maintain their Practising Certificate (PC).

If practitioners do not hold a PC for the entire CPD year, CPD points can be completed on a pro rata basis.

All practitioners must submit an Annual CPD Certificate regardless of whether or not all of the required CPD points have been obtained.

Practitioners who have not obtained the required number of CPD points by 31 March, must also submit a Supplementary CPD Certificate by 30 June to confirm that the outstanding CPD points have been accrued and that mandatory obligations for the CPD year have been complied with.

Further information relating to pro rata accrual of CPD points and mandatory CPD obligations can be found on the Society’s website and in the CPD Guide for Practitioners.

To download the Annual / Supplementary CPD Certificate templates, please go to: https:// lawsocietynt.asn.au/forms.html

Need CPD points?

RATE OF ACCRUAL

MAX PER ACTIVITY

MAX PER ANNUM

Preparing or giving a presentation

0.5 CPD point per 30 mins

5 CPD points

No limit

Attending a seminar

0.5 CPD point per 30 mins

No limit

No limit

Private study using audio or visual material

0.5 CPD point per 30 mins

No limit

5 CPD points

Preparing or giving a lecture

0.5 CPD point per 30 mins

5 CPD points

No limit

Writing an article

0.5 CPD point per 500 words

No limit

5 CPD points

Refereeing or structural editing of an article

0.5 CPD point per 500 words

No limit

5 CPD points

Committee participation

0.5 CPD point per 60 mins

No limit

3 CPD points

Attending lectures (postgrad studies)

0.5 CPD point per 30 mins

No limit

5 CPD points

Writing assignments or a thesis (postgrad studies)

0.5 CPD point per 500 words

No limit

5 CPD points

CPD ACTIVITY

2021 practitioner calendar CPD CERTIFICATES 31 March: Annual CPD Certificate due 30 June:

Supplementary CPD Certificate due

PRACTISING CERTIFICATES 1 April:

PC renewal period starts

1 June:

PC late fee applies

30 June:

PC renewal period ends

See also Legal Profession Regulations 2007, Schedule 2, Continuing Professional Development Scheme.

LAW SOCIETY NT BALANCE EDITION 1|21

17

INDEX CATEGORY

LAW WEEK 2021

Recent ethical and professional responsibility issues in a trivia-like fashion!

Ethical Pursuit? is a CPD trivia quiz about a subject that’s not at all trivial. Trivia and ethics may seem an unlikely fit, but the quiz format makes for a clear and effective way to raise a wide range of topics within ethics and professional responsibility.

This workshop in the format of a new game show designed to help lawyers satisfy their CPD requirements for at least one CPD unit in the Ethics and Professional Responsibility category.

Come along and receive a drink on arrival, and then use your phone to answer trivia questions about a subject that’s not at all trivial! At the end of the evening you're invited to join us for refreshments in the garden.

THURSDAY 20 MAY 2021 | 5.30–8.30 PM | DARWIN RAILWAY CLUB Registrations are essential: https://2021lawweekethicalpursuit.eventbrite.com.au

18

LAW SOCIETY NT BALANCE EDITION 1|21

LAW WEEK 2021

SAVE THE DATE TUESDAY 18 MAY 2021 Teams of six NT lawyers will compete for a coveted trophy.

‘Roped In’ was victorious in 2019... Who will win in 2021?

LAW SOCIETY NT BALANCE EDITION 1|21

19

FE ATURE

JANET TAYLOR

JULIANNA MARSHALL

MANAGING PRINCIPAL SOLICITOR, CENTRAL AUSTRALIAN WOMEN’S LEGAL SERVICE

CLE & POLICY SOLICITOR, CENTRAL AUSTRALIAN WOMEN’S LEGAL SERVICE

Coercive control, social entrapment and criminalised women Promised as a child. Married at 15. Mother at 16. Repeated assaults. 18 years, 37 hospital admissions. Bruises, abrasions, lacerations, broken jaw, facial fractures. Choking. Sexual assault. Police reports. Brutality. Nightmares.

Depression. Post-traumatic stress disorder.

Domestic Violence Order. Full no contact.

Unwanted visit. Unwanted sexual advance.

Retreat. Pursuit. Physical struggle. Use of a weapon. Death. Arrest. Manslaughter. Prison.

Three children. Relationship. Partner committed violent offences against third party.

Imprisoned. Separation. Ex-partner released.

Woman located. Threats of violence. Pressure to resume relationship. Ongoing threats.

Ongoing Abuse. Stalking. Threats to strangers.

Repeated false imprisonment. Repeatedly restrained from leaving. Repeatedly kicked and punched to the face, head, chest. Escape.

Located again. And again. Restrained from leaving. Again. Repeated police calls. Repeated attempts to leave. Ongoing jealousy, stalking, violence. Punched. Broken rib. Internal bleeding. Death.

Kill or be killed.

These are the tragic experiences of many domestic and family violence (DFV) victims in the Northern Territory.

Women are predominantly the victims of DFV.1 But women, particularly Aboriginal women, are also the fastest growing prison population across Australia.2 These two facts are connected. The majority of women in prison have experienced DFV.3 These experiences are significant risk factors for imprisonment. Too often, it is only after a woman has been criminalised that she is identified as a victim who needed significantly more support than she had received to manage her safety, and the safety of her children.

In an ongoing national DFV crisis, the Northern Territory has experienced an increase in the number of reported DFV related assaults in the order of 30%.4 This article explores the criminalisation of women in the Territory focusing on the consequences when women are misidentified as primary perpetrators. We also seek to highlight a systemic failure to support women who use or have used violence to resist ongoing abuse and coercive control.

It is clear there is an urgent need for a more robust and widespread understanding of coercive control to underpin community and justice

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system responses to family violence, whether or not a specific criminal offence is introduced. In doing so, we draw attention to the fundamental role of specialist women’s legal services.

Victims misidentified as perpetrators Single mum. New relationship. Violence.

Jealousy. Ongoing assaults. Hit with a rock. A metal bar. Hospitalised. Surgery. Attempts to leave. Heavy drinking. Ongoing violence.

Vicious and controlling behaviour. Attempts to leave. Physical and sexual assaults. Kicked in the mouth. Lost teeth. Stabbed in the stomach.

Burnt with a stick. Financial control. Forced to beg. Domestic Violence Orders. Perpetrator convicted 10 times... Ongoing violence. Use of violence to resist. Prison. Ongoing violence.

Prison. Reciprocal DVO. Further financial control. Further threats. Cognitive impairment.

Post-traumatic stress disorder. Alcohol use disorder. Ongoing violence. Stabbed by perpetrator. Armed with weapon. Assaults perpetrator. Perpetrator suicides. Prison Recent research supports our experience that women are increasingly being misidentified as perpetrators of DFV.5 The number of women served with DVOs is disproportionate when we consider what is known about the gendered nature of DFV.6 By way of brief background, each state and territory has a civil legislative regime to facilitate the making of protection orders referred to as DVOs (known in other jurisdictions as apprehended violence orders or family violence intervention orders).7 These orders seek to protect a victim of DFV by prohibiting the named respondent from specified behaviour. A breach of an order constitutes a criminal offence.

In the NT, police may make an interim DVO if satisfied it is necessary to ensure a person’s safety.8 DFV is defined to include conduct causing harm, damaging property, intimidation, stalking and economic abuse. The legislation specifically allows for consideration to be given to a pattern of conduct. As explored in our previous contribution to Balance magazine, the

definition is arguably broad enough to encompass the patterns of behaviour which are coercive control but unfortunately many instances of coercive control are not yet widely recognised or accepted as DFV.9 Following well established understandings of the gendered nature of DFV, it would be expected that the vast majority of respondents to DVO’s would be male.10 In other words, it would be reasonable to expect that few women would be identified as respondents. Yet, Central Australian Women’s Legal Service is increasingly being asked for assistance by women who have been served with a DVO by police or by their abusive partner/ex-partner. This experience is consistent with the findings of Australia’s National Research Organisation for Women’s Safety (ANROWS).11 ANROWS recent report draws attention to the number of women being identified as respondents to DVOs across all States and Territories.

In the NT, the number of female respondents to DVO applications from 2015-18 was more than one fifth of the total number of respondents.12 Alarmingly, the NT reports a significantly disproportionate rate for breaches by female respondents, and Indigenous female respondents in particular.13 The consequences are significant.

As a ‘protected person’ under a domestic violence order (DVO), perpetrators are being provided yet another tool by which to effect coercive control.

Women who are alleged to have breached orders attract a criminal justice system response with broad ranging adverse impacts on their family life, social life, finances and employment, whether or not they subsequently serve time—a very real prospect in the NT where mandatory sentencing applies.14 There are significant consequences for women’s ongoing safety, trust in police and the legal system.

In the past six months, CAWLS has assisted over 30 women challenge applications for DVOs against them. The cases are varied and have involved both misidentification by police and systems abuse by perpetrators. Both concepts are explored below before we highlight the need >

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for earlier intervention to identify and support women at risk of ongoing violence and coercive control. Interaction with the criminal justice system and/or incarceration should not be the trigger for identifying victims of family violence.

Women deserve better options than to kill or risk being killed.

from first responders through to judicial officers.

Evidence of physical resistance is taken ‘as evidence that [the woman] had negotiating power in the relationship and [is] therefore responsible for what is a ‘bad relationship’’.15 Women who use violence to resist a pattern of abuse (i.e. coercive control) are seen as perpetrators.16

Misidentification – A failure to understand resistive violence

As noted by ANROWS, women who use resistive violence are more likely to use weapons to counter a physical strength disadvantage.17 The use of weapons will often produce a visible physical injury. To those unfamiliar with the nature of coercive control, a purely physical injury may appear more severe and more urgent than decades of sexual, psychological, emotional, social, economic, financial and technological abuse. Yet, we know that coercive control—which may include any combination of these forms of abuse—is a significant risk factor for intimate partner homicide.18

Violently raped. Defensively armed. Hurt.

Humiliated. Angry. Scared. Distrustful.

Harassed. Followed. Stalked. Attacks perpetrator in public. Arrested. Charged.

Sentenced. Imprisoned.

Misidentification of a woman who uses violence as either the primary aggressor or a participant in mutual violence (i.e. ‘she gives as good as she gets’) appears to be increasing. From our perspective, the causes of misidentification are deeply rooted in misconceptions about both the nature of DFV, particularly coercive control, and when, how and why women use violence.

Frequently, police are called to respond to a domestic violence ‘incident’ in which both the perpetrator and the victim appear to have used violence. In many situations of apparent ‘mutual violence’ it may seem challenging for police to obtain a clear understanding of the nature of the violence that has taken place. There are a number of complex and interrelated reasons which create and compound this difficulty. A significant factor is that first responders do not yet have the required training, resources or support they need to thoroughly and safely investigate histories of coercive control. Consequently, our system continues to fail to misidentify the true perpetrator of family violence and fails to apprehend the nature of ongoing risk for the victim.

Misconceptions about the nature of DFV are tied to the perpetuation of the ‘ideal victim’ stereotype. The ideal victim does not use violence. She is passive, submissive and helpless.

The stereotype of the ideal victim continues to infect decision-making in the justice system

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In both Queensland and Western Australia, further legislative steps have been taken to militate against the tendency for women to be misidentified as perpetrators. Both jurisdictions include the concept of ‘person most in need of protection’ within their civil protection order schemes in an attempt to reduce the number of ‘reciprocal DVO’s’ or ‘cross-applications’ being brought before the court. This concept is intended to reflect the fact that DFV must be distinguished from resistive or retaliatory violence. DFV is characterised by coercive control. It is a pattern of abuse motivated, consciously or otherwise, by a desire to dominate or control. The explanatory memorandum to the Queensland legislation specifically notes that ‘[B]oth people in a relationship cannot be a victim and a perpetrator of this type of violence at the same time’.19 ANROWS recent research project demonstrates that despite these amendments to clarify the intention of DVOs—to address coercive control—there is a gap between intention and application ‘largely due to a lack of comprehension of key concepts, uncertainty about procedural expectations, and organisational practices and culture’.20

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Women are too often in the situation of kill or be killed, stab or be brutally assaulted. If she does resist she runs the risk of being labelled a DFV perpetrator. If she is judged as capable of taking other measures to protect herself, she will likely be served with a DVO protecting the man that has repeatedly assaulted her, raped her and systematically abused her. If she breaches the DVO, she faces criminal charges. So what options does she realistically have?

A robust social entrapment analysis informed by an understanding of coercive control might counter the instinct to suggest she should call the police, lock the doors or simply pack up and leave. The enduring presence of victim‑blaming highlights the need for a much greater understanding of coercive control, and social entrapment, to be embedded in not only our legal response but also our broader community.

Understanding Coercive Control – A crucial element in a Social Entrapment Framework Married. Emigrated to Australia. Worked as a doctor. Regularly assaulted. Bashed with a rolling pin. A metal chair. Forced to perform sexual acts for strangers online. Forced to watch child pornography and child abuse.

Forced to engage in sexual acts with other women. Struck and killed husband while asleep. Arrested. Charged. No self-defence.

Manslaughter. Imprisonment.

In 2019, ANROWS recommended that the justice system utilise a social entrapment framework to respond to women who have killed their intimate partners.21 This follows a similar recommendation by the New Zealand Family Violence Death Review Committee (NZFVDRC) in relation to understanding intimate partner violence.22 NZFVDRC have suggested that intimate partner homicide would be more accurately framed as a form of social entrapment that has three dimensions: ●● the social isolation, fear and coercion that the perpetrator’s coercive and

controlling behaviour creates in the victim’s/ survivor’s life; ●● the lack of effective systemic safety options; and ●● the exacerbation of these previous two dimensions by the structural inequities associated with gender, class, race and disability.23 Inherent in a social entrapment framework is an understanding of the particular coercive and controlling behaviours that have been used against the victim. Despite recognition in most civil protection regimes of the relevance of a pattern of behaviour, our current response to DFV fails to reflect a sophisticated and nuanced understanding of the realities of coercive control. ANROWS suggests that the current legal framing of intimate partner violence uses either one of two problematic theories of violence.24 The first is described as ‘a bad relationship with incidents of violence’ and the second as ‘battered woman syndrome’.25 The ‘bad relationship’ theory reflects an incident‑based approach which does not reflect an understanding that the pattern of ongoing abuse ‘is bigger than any acts of physical violence and has a cumulative and compounding effect on the victim/survivor.’26 The abuse is contextualised as discrete incidents which, once over, do not impact the victim’s ability to leave or implement safety strategies.27 The safety responses that are assumed to be available to victims are much less accessible and effective when viewed through a lens of coercive control and ongoing threat. Yet, women who cannot initiate or access the safety strategies assumed to be available—including calling police, leaving the relationship and seeking refuge—are criminalised when force, the only available path of resistance, is used to resist ongoing violence.

The failure of the ‘bad relationship’ theory to reflect an understanding of the cycle of violence led to the development of ‘Battered woman syndrome’ or ‘learned helplessness’.28 However, as >

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noted by ANROWS, these theories are still based on an understanding that the victim has not made a rational choice. The concept of learned helplessness does not engage with the true nature of coercive control.29 Battered woman syndrome relies on the woman being passive and any evidence of physical resistance prior to the ultimate act of homicide is as evidence she did have power, could have left and is therefore responsible for the violence perpetrated against her.30 ANROWS notes there is evidence that most DFV victims are proactive help seekers within the constraints of their circumstances.31 However, they frequently receive unhelpful or unsafe responses or their abusive partner deliberately thwarts their acts of resistance.32 This is consistent with CAWLS experience. Many women recount attempting to report to police only to be told there is no urgent threat. A number of clients have attended the clinic to seek support reporting family violence. It is not uncommon for police to decline to issue an interim DVO on the basis the matter is not ‘urgent’ despite the occurrence of serious physical assault within the preceding 48 hours. Although we accept that the power to issue an interim DVO is constrained, we suggest a more robust understanding of coercive control, coupled with greater investigative resources and safety planning support for police and for women would impact the number of applications perceived to be necessary to ensure a person’s safety because of urgent circumstances. It would certainly enhance the effectiveness of the justice and service sector response, and likely reduce the number of women whose only path of resistance is the use of violence. The current justice and service sector response to women seeking assistance is too often unhelpful, unsafe and reduces the victim’s capacity to resist ongoing abuse.

It is interesting to note, that a significant proportion of women we have assisted to defend DVO applications had actually initiated the call for police assistance. These women had fought back against a physical attack, had often used a weapon but had also sought assistance

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from police. They were often identified as a perpetrator of DFV on the basis of the injury caused to the other party. The woman’s reports of serious assault, often including less visible injuries such as sexual assault, strangulation or suffocation—red flags for intimate partner homicide—are not accepted as a rational basis for the use of resistive violence at the time of police attendance and/or arrest. Rather, it is left to the court to determine the true nature of the violence which has occurred. However, the court can only respond to the evidence before it, which, without a fully informed coercive control investigation, will be presented as an incident of mutual violence. This experience highlights the urgent need for enhanced training on the nature and impact of coercive control, as well as the vital role that specialist women’s services play in responding to women who experience violence.

So far, we have not specifically raised the additional barriers faced by Aboriginal and Torres Strait Islander women.33 Aboriginal and Torres Strait Islander women participating in research led by ANROWS explained that they experienced reluctance to cooperate with police or prosecution due to prior experience of inappropriate responses, intimidation, racism and mistrust of police in general as well as feelings of loyalty and self-preservation.34 Similarly, women from other culturally and linguistically diverse backgrounds often experience additional barriers to access to justice in relation to policing family violence.35 Migrant women who present at CAWLS often have concerns about the impact of police intervention on their own visa status. They also have limited access to social supports, and many have no social security rights.

In order for the justice system to respond appropriately to women who use violence, it is vital to understand why they have used violence.

Suggesting alternatives that do not exist for that woman is tantamount to the justice system colluding with the perpetrator of the abuse.

Further, in order to prevent women using violence to resist abuse and coercive control, the justice system and the service sector needs to better respond to calls for assistance and empower

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women with realistic options to manage their safety. Key to ensuring better responses is a better understanding of coercive control.

Systems abuse Met at work. Moved in together. Attacked three times. Strangulation. Suffocation.

Dragged by hair. Reported to police. Domestic Violence Order. Perpetrator applies for private DVO against victim. Fictitious. Exaggerated.

Exorbitant costs to contest application.

Consent without admissions. Perpetrator advised workplace, lodged workplace bullying complaint. Terrified to report to police.

Fear of being criminalised. Quit job with no alternative income.

We have also seen a number of private applications for DVOs being made by abusive partners. Hijacking a system designed to protect a victim and weaponising it against her is described as systems abuse. The perpetrator uses the system to perpetuate the abuse. As noted above, a DVO can be a powerful tool for abuse when it is made in favour of a coercive and controlling partner or ex-partner. The likelihood a woman subject to a DVO will report violence being committed against her is reduced due to the risk that the perpetrator will assume control of the narrative. The trust in the system is eviscerated.

Targeted intervention to identify potential systems abuse and provide tailored assistance to women needs to be further developed. This will involve training and support for court staff, the service sector and ensuring there is a funded specialist women’s legal service that women can readily access.

Conclusion In our previous contribution to Balance magazine, we explored the debate surrounding the potential criminalisation of coercive control. We suggested that a coercive control lens may allow for correction of misidentification of primary perpetrators. In this article, we have explored that suggestion further, highlighting the need for a more informed justice system response to coercive control to ensure that our civil protection regime does not operate as a pathway to the criminalisation of women.

We reiterate our call for urgent coercive control training and support for the justice system stakeholders to ensure red flags are identified, information and risk assessment is informed and that police and decision‑makers are able to identify retaliatory and resistive violence in the context of abuse and victimisation—and ultimately social entrapment.

For Central Australian readers, CAWLS is facilitating a free workshop on Identifying and Responding to Coercive Control for the Family Law Pathways Network on Wednesday 17 March, 9.00 – 11.30 am.

Registration is required. For further information please email: pathwaysas@ra-nt.org.au (08) 8952 4055 enquiries@cawls.org.au www.cawls.org.au @CentralAustralianWLS @cawls_nt

Endnotes page 58

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LOCAL NEWS

AMBER RUSSELL LEGAL PRACTITIONER CENTRAL AUSTRALIAN WOMEN’S LEGAL SERVICE

New service Migration and family violence advice for women on temporary visas

CAWLS works with socially and economically disadvantaged women in a region which generally lacks the services and support found in other areas.

The region also has one of the highest incidences of DFV in Australia, and has experienced a significant increase in DFV over the past year.1 Prior to the emergence of COVID-19, there had been a trend towards increasing numbers of Culturally and Linguistically Diverse (CALD) women and families migrating to the Northern Territory. This has been largely associated with the Federal and Territory Government policies on migration pathways, and the emphasis on migration to regional Australia as a means of obtaining permanent residency. According to the Australian Bureau of Statistics (ABS) the migration population in the Northern Territory increased by 15.8% from 2007 to 2016.2

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As a consequence, the numbers of CALD women on temporary visas (including tourist, bridging, temporary skilled visa, partner visas) presenting at our service for advice about family law and domestic violence has generally increased. For many of these women their partners are using their temporary visa status as tool to exert coercive control.

The forms of violence against CALD women by intimate partners can include the threat of the cancellation of visa sponsorship and deportation, threats to annul the marriage with the consequence of bringing shame upon the woman and her family, threats of abandonment, demanding pregnancies be terminated or not permitting pregnancy, regular physical and sexual violence and denigrating comments about the woman to family and friends.

LOCAL NEWS

CALD women are extremely vulnerable when experiencing DFV in the Northern Territory for a range of reasons including: ●● Migration status—although domestic violence cuts across all migration streams, there are particular issues that arise for women experiencing DFV Australia on temporary visas. ●● Limited access to culturally sensitive legal advice including migration advice. ●● Limited available legal services with specialist knowledge around the intersectionality of migration law, DFV law, family law and employment law issues. ●● The additional remoteness and isolation of the Central Australia and Barkly region. ●● The identification of DFV specific to the woman’s culture. ●● The limited availability of female interpreters.

The demand for our service by CALD women experiencing DFV, specifically in seeking migration advice has continued to grow during COVID-19. COVID-19 heightened the challenges for women on temporary visas in Australia who suffer DFV as a result of unprecedented economic hardship experienced across Australia. The Australian Government introduced a range of temporary economic support measures to assist people who lost their jobs and faced hardship due to COVID-19. These measure were intended to provide particularly vulnerable people with sufficient nutrition, housing, water and sanitation, health care, energy and other essential goods and services.

However, some of the most vulnerable people in Australia were, and continue to be, excluded from these income support measures, specifically people on temporary visas. As a consequence of the lack of funding and ineligibility for Centrelink and Medicare, many temporary visa holders experiencing DFV remain unable to access

appropriate services, including legal advice.

There are widespread concerns amongst DFV specialist services that many of these women find it impossible to reach out for help and they are largely invisible in our community.

One of the most significant barriers to CALD women seeking legal advice is the uncertainty around their migration options should they decide to proceed with separating their current partner/ spouse. Providing prompt migration advice for these women and outlining their visa options, can often result in increased engagement with legal services for other legal needs such as DFV, family law, child protection and employment law.

In response to this significant need, in March 2021, CAWLS will be expanding its service provision on a pilot basis to include migration advice and support services for disadvantaged women across the Northern Territory.

The provision of migration advice will extend to women who are located beyond our general service delivery area of Central Australia and the Barkly. CAWLS will work with other specialist legal services to facilitate referrals for discrete migration advice, working in partnership with the referring service who will continue to provide advice in other areas and integrated support subject to their own operating guidelines.

Women in the NT region experiencing domestic and family violence will be able to access migration advice at the same time as they access other CAWLS integrated support services and other legal services across the NT. Furthermore, as part of the Migration Hub, CAWLS has partnered with the Multicultural Services of Central Australia MCSCA to assist with their project to collect up‑to‑date demographic information for migrants in order to establish a reliable data-set and to understand the experience, aspirations and challenges faced by migrants in Central Australia. This data is intended to assist in informing the government’s decision making in providing services for migrants in the regions. >

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INDEX CATEGORY LOCAL NEWS

Working with community organisations and bodies such MCSCA, CAWLS will also focus on community and service sector legal education to build awareness and understanding of the intersection between migration law, family law and family and domestic violence legislation. The aim is to increase general community awareness for vulnerable women on temporary visas who are experiencing DFV and are concerned about leaving their partners/spouses due to the uncertainty around their migration options.

If you would like to learn more about our referral processes or invite a CAWLS Migration Lawyer to speak to your organisation, please contact us at enquiries@cawls.org.au Endnotes 1 PFES stats 2 Australian Bureau of Statistics (ABS), Regional

It is envisaged that this service will promote more proactive engagement with legal services, courts, government authorities and support service providers in order to reduce and eliminate DFV within the CALD community.

Population Growth, Australia, 2016-17, cat no.

3218.0 (revised, August 2018).

ADMISSIONS CEREMONY

7 DECEMBER 2020, DARWIN SUPREME COURT OF THE NORTHERN TERRITORY

Stella Noor

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2 MARCH 2021, DARWIN SUPREME COURT OF THE NORTHERN TERRITORY

Joelon Fincher, Angelique Torr, Kristen Brown, Ismam Chowdhury

TECHNOLOGY

DANIEL BARAC INTERN WISELAW

Directors’ duties and cybersecurity

D

irectors of public and private companies have strict obligations to shareholders under the Corporations Act and common law.

These duties are broadly categorised into two groups: duties of loyalty and good faith, and duties of care, skill and diligence. In a world where most communication is conducted online, particularly with the need to work from home, directors’ obligations to exercise reasonable care, skill, and diligence in their cybersecurity maintenance are more important than ever.

However, despite the ever-growing presence of cyber risks to corporations, the relationship between directors’ duties and these risks is still yet to be examined closely in Australian courts.

That said, directors can face liability for gross cybersecurity failures under the Corporations Act,1 the Privacy Act,2 or even, in cases where the Director is also a solicitor or barrister, the Solicitor Conduct Rules.3 Part of the duty of care and diligence is the need to weigh up the potential benefits of an activity against the foreseeable risks of that activity.

Cyber-attacks are estimated to cost Australian

businesses $29 billion per year,4 so most Australian companies would likely identify this as a significant risk. Cybercrime is often damaging to reputation, incurs immediate and substantial costs, and can reduce share prices.5 The seriousness of these risks means that Directors have a high obligation to take reasonable steps to offset this risk.

Section 180 of the Corporations Act 2001 obligates a director or officer of a corporation to exercise their powers with the degree of care and diligence that a reasonable person would if they had that role or responsibilities.6 But what would a reasonable person do? What standard of care is expected of directors, and how does this affect the need to exercise reasonable care to ensure the company remains protected against cybercrime?

Daniels v Anderson states that, at minimum, directors must acquire a basic understanding of the business.7 In a cybersecurity context, they must understand the risk profile associated with their particular industry and understand the relevance of the basics of cyber‑attacks and how an attack may infiltrate business data. For example, Directors of companies in financial and healthcare sectors may need to understand that, due to the sensitive nature of the client information they store, their risk profile is >

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higher, requiring them to implement stronger cybersecurity protections commensurate to this risk.8 The Australian Institute of Company Directors also emphasises that IT and cybersecurity are board level issues which impact the entire company, and must be treated with requisite expertise.9 In Report 429, the Australian Securities and Investments Commission (ASIC), the primary regulator of directors’ duties, clarified that a director’s failure to meet obligations and manage cyber risks could result in their disqualification.10 Under the Corporations Act, directors may also be liable for fines of up to $200 000 for breaches of their duties.11

FINDING IT HARD TO KEEP IT TOGETHER? LawCare: Caring for the legal profession in the Northern Territory The Law Society NT funds a professional, confidential and free counselling service for our members and their immediate family, provided through Employee Assistance Service Australia (EASA).

If you are experiencing workplace, personal or emotional issues which are affecting your work or personal life, please call LawCare via the EASA Program 24-hour support line on 1800 193 123 or visit their website at www.easa.org.au.

NT toll free: 1800 193 123 Darwin: (08) 8941 1752 Alice Springs: (08) 8953 4225 When booking an appointment, please inform the operator that you are a Law Society NT member.

This service is completely confidential. The Society will only receive statistical information on the numbers accessing the service.

Directors could also be liable for a breach of the Privacy Act where they engage in, assist, or know of privacy violations regarding personal or confidential information.12 If the director responsible were also a solicitor, such collaboration would undoubtedly also breach the Director’s obligation to not disclose confidential information under the Solicitor Conduct Rules.13 In summary, while the exact extent of the obligation for Australian company directors to have sound cyber awareness is yet to be clarified, this is something that directors must prioritise to protect the wellbeing and security of their organisation and their own standing.

Serious failures to ‘implement measures which are reasonably appropriate to manage risk in respect of cybersecurity and cyber resilience’ will amount to a breach of director duties.14

Endnotes page 58-59 info@wiselaw.com.au www.wiselaw.com.au 0447 534 023 @twitter.com/WiseLaw3 @facebook.com/1WiseLaw

CAREERS

JASON ELIAS BA LLB FRCSA CHIEF EXECUTIVE OFFICER ELIAS RECRUITMENT

Australian Recruitment Leader of the Year 2020

Is it time to change jobs?

B

efore you take the leap, take a moment to ask yourself the following questions: ●● Am I being challenged in my current role? ●● Am I still learning? ●● Do I feel respected and appreciated? ●● Am I developing new skills that will enhance my value? ●● Can I see a future career path? ●● Do I get up each Monday excited going to work or not?

Looking at the reality of your current role and being objective about whether it’s something that you need to change vs if it’s a change in employer that is required is often the most important first step.

Only you know when it’s time to move on. But chances are you’ve at least thought about what the next move might be.

There are some clear warning signs that it might be time to move on.

Staying doesn’t make financial sense It probably seems risky, but changing job can often mean an increase in income or other non‑financial benefits.

New employers may offer an incentive to move across, some new firms are now offering “70 cents in the dollar on billings” and cross‑referral/ client introduction fees (often 10% of collected fees).

Consider the other benefits you may currently be missing out on ... better hours, working closer to home or flexibility like working from home one day a week.

You may find you even have time to take that holiday that never seems to come around.

You’re risking guilt by association No matter how many hours you put in, if you’re not working for the right people, that is energy wasted. Some firms are known for excellence in one area and not others.

Ask yourself: how positive is our firm’s reputation in my practice area? Who are we being compared to?

Are we being held back or even missing out on work because of the way the firm is perceived? Perhaps moving on is a better bet for your reputation.

Politics is a tricky game Managing demanding clients is one thing. Managing internal conflict is another level of stress altogether. Sometimes firm management just won’t be on your side. >

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Perhaps they are excluding you from managing bigger clients because of some perceived conflict.

Did you back the wrong person at the last partner’s meeting?

Politicking is part and parcel of law firm life, but if it is taking up too much headspace, it may be time to outgrow the petty game playing.

Your firm is choked by bureaucracy Too much paperwork and too many meetings might eat into your practice. You would be better off developing business and nurturing client relationships rather than attending endless irrelevant meetings that go nowhere.

Overcomplicated workplaces can be very difficult to change. So ask yourself, do you have time to wait around while these knots are being untangled? Or do you have better things to be doing?

You know something better could be out there Even if you’re sure you can stick it out for another year or so, you might be missing out on golden opportunities by keeping your head in the sand.

We all know the best roles are often those that go unadvertised – part of the “hidden” jobs market.

Now might be time to get a proper assessment of what your opportunities are and let those enviable jobs to come to you (i.e. get headhunted) by getting to know connected recruiters in the market.

Start thinking about your next move while you still have a good bargaining position and can move on your own terms and timelines. It is always easier to find a role while you are currently employed so try not to hand in your notice (or even alert your current employer) until you have something secured (preferably a written and signed Letter of Offer).

There’s been a change in direction When you started your current role it may have been a perfect match. But things change.

If your firm decides to take things in a new direction, your areas of focus may simply not fit anymore. Perhaps they have brought in an outsider above you or merged with a firm with an incompatible culture.

There’s a values mismatch This is tough because values underpin every decision, big and small. Even if your situation looks fantastic on paper, a fundamental mismatch in values or personalities will wear you down over time.

Values don’t have to be spelled out in a strategic document. You’ll know what your firm’s priorities are, and whether you can keep working towards them.

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JASON ELIAS is CEO of Elias Recruitment, specialist legal recruiters in Melbourne, Sydney, Brisbane and Perth. He is a former lawyer at Baker McKenzie and has been recruiting lawye rs for more than 20 years. He was recently awarded Australian Recruitment Leader of the Year. info@eliasrecruitment www.eliasrecruitment.com (02) 9555 5711 @eliasrecruit @eliasrecruitment

HE ALTH & WELLBEING

PETRIS LAPIS B COM LLB LLM FIPA FFA AUTHOR PRESENTER DIRECTOR PETRIS LAPIS PT Y LTD

Simple things you can do to lead a life of meaning and purpose

H

ave you ever thought about the purpose you want your life to have? Have you ever wanted your life to have meaning (or more than it has at the moment)?

These are the simple things that have helped me on this journey called life to find purpose and meaning …

Always be ruthlessly honest with yourself… always.

Denying what is, has never been a great strategy for improving yourself or the world around you.

Find the courage to step beyond fear. I find it better to take the initiative to confront the things I fear before life puts me in front of them anyway. A smarter person than me once told me that your greatest growth comes from confronting the thing you fear most. After you make it to the other side of that fear, you realise just how little energy some of the things you fear deserve.

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Understand that nothing you learn about yourself can hurt you. Maybe I should rephrase that … you will feel uncomfortable, but you will survive facing the truth about yourself. And life from that point forward will start to improve. Once I acknowledged that I found some social situations difficult, I could use strategies to make it easier for myself. Until I acknowledged it, I would not accept help.

Be prepared to change. The constant in our lives is change.

I suspect that you will never again be in a moment with as little change as there is now. Embrace it, thrive on it and enjoy it for what it is … something different.

Take the high road. If the low road works for you, I would love to know your secret. Every time I have attempted to do something I knew was not right for me or to take a short cut, it all went pear shaped. Now I take the right road at the right > LAW SOCIETY NT BALANCE EDITION 1|21

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HE ALTH & WELLBEING

time, do the right thing and treat people and the planet the right way and my life is so much easier.

Create the community you want to live in. Be the friend you want to have. Be the community member you want to have in your community. Be the work colleague you wish your workplace had more of.

The only person we can ever change is ourselves and by making that change, we might inspire others to walk with us.

Look for the gift in every adversity. Every tough thing that has happened in my life has left me with a character trait and a strength that I am grateful for. Instead of focusing on the rotten things that have happened, focus on the gift (strength, character trait or learning) you got from them.

Stop self-pity. When you feel sorry yourself, you stay stuck in victim. The things that happen to you need not define you. We all have a story to tell and we can choose from those stories to take the lessons or the wounds. The wounds, like baggage, are very heavy to carry around.

Accept responsibility for your life. If you believe someone else is responsible for the life you are living, you have just handed over your power. If you accept responsibility for your life, you give yourself permission and freedom to make changes.

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Cultivate an attitude of gratitude. I start every morning with gratitude for 3 things in my life. It can be anything … my wonderful partner, my beautiful children, the forest behind my home, the internet is working, there was a parking spot at the supermarket, the plant in my office is thriving, I did not miss the chair when I sat down …

It doesn’t matter what you are grateful for, what matters is entering the energetic space of gratitude.

Stop judging. There is a freedom and joy that comes from not judging yourself, others or situations. Things just are as they are and all that judging them does is trigger emotions in you. Instead of judging, ask yourself what you will do next given what has happened.

Seek opportunities to serve.

When we focus on acts of kindness or service to others, we get out of our own way and live improves. These things can be done in small ways such as a compliment or helping someone with their groceries.

I would love to hear if you have others that have helped you.

Journey well. petris@petrislapis.com www.petrislapis.com 0419 334 204

be informed @lawsocietynt

@lawsocietynt

lawsocietynt.asn.au

INSUR ANCE

JEN McMILLAN SOLICITOR – MANAGER, PRACTICE SUPPORT SERVICES LAWCOVER

An update from Lawcover Renewing your Professional Indemnity Insurance (PII)

S

ince 1 July 2020, Northern Territory law practices have been covered by Lawcover Insurance Pty Ltd (Lawcover) PII policies. Those policies will be due for renewal shortly, and set out below are steps to help you navigate the renewal process.

●● In April, your practice’s nominated contact person will receive an email when renewal is open. ●● Complete the online application at Insurance Login on the Lawcover website. ●● Generate an instant renewal quote. ●● Where an instant quote is not available, Lawcover will contact you to help finalise your insurance arrangements. ●● Once payment is received, Lawcover will email a tax invoice and your policy documents. >

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INSUR ANCE Premium funding If you wish to use a premium funder, premium funding is available either by arrangement with the funder of your choice, or via Lawcover’s online renewal platform. ●● If you want to fund your PII premium only, you can access funding from IQumulate, Westpac or Hunter Premium Funding via the link from our online platform. ●● If you want to bundle your funding for PII with your practising certificate(s), Top Up or other insurances, you will need to contact your preferred funder directly.

Do you need Top Up insurance?

The primary limit of indemnity under Lawcover’s PII policy is $2 million. If a claim is made which exceeds that amount, and the practice does not have an appropriate level of Top Up insurance (cover in excess of the primary $2 million limit), then the law practice or the partners personally face potential exposure against which they are not insured.

While most claims are able to be resolved for less than $2 million, there have been instances where much larger claims have been made against even quite small law practices.

One recent example involved a two partner law practice acting on the sale of a commercial property at a price of $28 million. The transaction proceeded uneventfully, but then the purchaser was not ready to settle on the settlement date.

The vendor client gave instructions to issue a notice to complete, but the notice was defective and settlement was delayed. The vendor client was unable to rely on the defective notice to complete to terminate the contract and made a claim against the law practice, calculating the loss at more than $4 million.

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The law practice did not have Top Up insurance and the partners were in the unenviable position of facing a personal liability for the part of the claim that exceeded the $2 million limit.

Given the defect in the notice to complete, Lawcover recommended settling the claim and it was resolved just under the $2 million policy limit.

While that was obviously a good result, the partners of the law practice were very stressed throughout the settlement process as they stared down the possibility the claim might not settle within the insurance coverage. The solicitors did not want to go through a similar experience again and decided to buy Top Up insurance from then on.

In considering whether your law practice should take out Top Up insurance, you should consider whether the nature of the work you do carries a risk of claims exceeding $2 million. For example: ●● Do you do transactional work where you are dealing in high value assets? ●● Are you advising high net worth clients? ●● Do you act for clients with potentially large value claims in, for example, building matters or personal injury or family provision?

Independent advice from an insurance broker or adviser may be helpful to assess your risk and the right level of cover for your law practice.

Top Up insurance provides protection for your law practice and your clients above the primary limit of $2 million—and often costs less than you might expect. If you would like a quote for cover above the $2 million limit (and up to $20 million in total) you can view the Top Up quote options provided online when renewing your PII policy, or contact the Insurance Services team on 1800 650 748 if you would like quotes for alternative limits.

INSUR ANCE Risk management education Lawcover has a range of resources available to assist you in your practice. There are live online events, podcasts, and our Short Minutes video updates, as well as our eLearning resources.

A number of Northern Territory law practices have already taken up Lawcover’s invitation for principals to attend the five, live online Principals Risk Management Workshops free of charge (normally $325 per workshop, or $1,000 for all five workshops) until 30 September 2021. Workshop dates can be found here.

If all principals in your law practice complete all five workshops by 30 June 2021, you will be entitled to a discount on your premium (click here for more details).

Commission. Or where you discover that an employee has been embezzling funds. Or your practice is audited by the tax office.

Management liability insurance is an optional insurance available to assist you in responding to everyday risks associated with managing a law practice, including public liability, employment practices liability, internal crime, statutory liability, mitigation costs and tax audit costs.

To find out more click here. practicesupportservices@lawcover.com.au www.lawcover.com.au 1800 650 748 Switch: (02) 9264 8855

To register, please contact Practice Support Services on (02) 9286 8877 or via email: practicesupportservices@lawcover.com.au

Cyber cover at no cost All law practices insured with Lawcover have the benefit of coverage under our group cyber risk insurance policy at no additional cost. You will receive up to $50,000 of emergency assistance cover in the event of a cyber incident affecting your law practice that does not fall under your professional indemnity insurance policy.

You can find out more about our cyber cover on our website here.

Lawcover’s new Lawyer’s Management Liability insurance The demands of running a legal practice and its associated risks can sometimes seem endless, particularly for those who wish to maintain an active practice while shouldering leadership and management responsibilities.

For example, consider a scenario where an employed solicitor makes allegations against your legal practice alleging workplace discrimination regarding the allocation of work and opportunities for promotion. Or where your legal practice is investigated by the Fair Work

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FINANCE

ANDREW PROEBSTL CHIEF EXECUTIVE LEGALSUPER

Let’s close the super gap legalsuper is working to help close the gap for women

ANDREW PROEBSTL is Chief Executive of legalsuper, Australia’s industry super fund for the legal community.

% aproebstl@legalsuper.com.au ! (03) 9602 0101

It’s 2021 and Australia’s gender pay gap is stuck at around 15 per cent; despite laws promoting better gender equality and evolving attitudes, women are still often paid less than men.

The super gap is even greater than the pay gap. According to Industry Super Australia, on average, women retire with around half as much super as men.

In light of the theme for this year’s International Women’s Day (8 March 2021) being ‘Choose to Challenge’, it is timely to examine the super gap and challenge the factors that contribute to this inequity.

Why do women accumulate less super?

Structural and cultural biases and workplace barriers, in addition to the interrelated family, work and social factors, impact women’s ability to earn and accrue super

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for retirement. Some key factors include: Women earn less than men This a significant contributor to the gender super gap.

On average, men take home $25,679 a year more than women. There are many contributing factors, including the gender pay gap. This impact compounds over a lifetime.

Unpaid work Men are far less likely to take time out of the workforce for unpaid caring responsibilities—95 per cent of primary carer’s leave is taken by mothers; conversely, one in twenty fathers takes such leave.

Parenthood aside, women spend 64 per cent of their average working hours each week on unpaid work compared to 36 per cent for men.

FINANCE

Part-time roles Women are more likely than men to work part-time or casually. Three in four part‑time employees are female.

Return to workforce barriers Women often face barriers to returning to work after taking a time out as carers. Whether due to limited opportunities or necessity, they may accept employment in roles below their skill level to balance caring and earning responsibilities.

Although compulsory superannuation has provided women with greater access to retirement savings, the current framework doesn’t address some particular challenges women face in the workplace. Some prominent examples are: The $450 monthly earning threshold An employer is not required to pay super to an employee who earns less than $450 a month, is under 18, or domestic service employees working 30 hours or less per week.

Women make up the majority of the part-time and casual workforce; many also have multiple jobs, meaning they miss out on super payments from more than one employer.

No Superannuation on paid parental leave Unlike other leave types, the government paid parental leave scheme does not attract the superannuation guarantee. Many women miss out on crucial years of superannuation accumulation while supporting family.

Past exclusion from superannuation is still impacting the retirement savings of women Historically, super was largely available to public servants or senior management, but not everyone.

Over the years, there have been both direct and indirect discrimination against women in relation to retirement savings, exposing women, especially older generations, to reduced financial security.

While legislation making super compulsory for all was a great step forward, it is not until the Gen X (born 1965-80) and Millennial generations (born 1981-96) retire, that women will have been paid super for their entire career.

Compounding inequality Compound interest makes super a powerful tool when saving up for life in retirement as interest is paid on both the principal and interest from past years: a bit like the snowball effect—over time you see exponential growth.

Using MoneySmart’s compound interest calculator, as an example: If you were to deposit $20,000 back in 1985 (36 years ago—when super became available under Government awards ix) with compounding interest, this deposit would be worth $115,836 today.

If you were to deposit $20,000 in 1992 (when super became compulsory for all), the $20,000 would be worth $82,323.

For the same principal amount of $20,000, an additional seven years of investment leads to a 40 per cent difference.

Together with the favourable tax treatment afforded to super, compounding interest is one of the main reasons investing through your super for retirement is so powerful, and one of the many reasons why the super gap is so much bigger than the wage gap. >

In 1974, less than 15 per cent of working women had super. In 1985, 24 per cent of working women had super.

It wasn’t until 1992, that compulsory super for everyone was introduced.

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FINANCE Contributing sooner rather than later Compounding interest means the longer your money is invested—the more interest you make.

Boosting your super, or your spouse’s super, is a way to help close the super gap.

●● removal of the $450 monthly earnings threshold; ●● superannuation and paid parental leave; ●● workplace gender equality; and

For information about salary sacrifice, voluntary contributions, spouse contributions, and contribution splitting, visit our website: legalsuper.com.au/growing-your-super.

Other levers to pull Working towards financial security for you and your family isn’t just about putting away money. There are other levers you can pull to optimise your super.

Understanding fees, account consolidation, making an investment choice, sorting your insurances and managing your beneficiaries, are some options.

Financial literacy legalsuper is focused on empowering our members through education, enabling both women and men to better leverage super and have confidence in financial security.

To make the most of contributions, and optimise your super account, legalsuper is here to help. We have a national client service team able to meet with you 1-to-1 and offer tailored support.

Our role legalsuper has a significant role to play in closing the super gap. Historically, legislation and policymaking has had the biggest impacts on women’s financial security in retirement. legalsuper works closely with organisations who help us influence better outcomes for women. legalsuper is a member of Women In Super, a not‑for‑profit organisation. Through Women In Super, we advocate for a super system void of gender-based inequality, and this includes advocacy for topics such as:

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●● women on superannuation fund boards.

We also work with the Australian Council of Superannuation Investors (ACSI), which provides a collective voice and influence on Environmental, Social, and Governance (ESG) issues, including promoting gender diversity on the boards of ASX listed companies.

In addition, we have our own internal diversity policy to help us combat bias against women.

Challenging the super gap legalsuper is here to empower all members to make choices leading to better outcomes in retirement. For women, we are working to close the super gap and increase the long‑term financial security of our members, so that generations of women which follow us can achieve the same.

We’re here to help If you’d like to meet with us to discuss your super, our team is available for 1-to-1 consultations, offering tailored information and support.

Contact us via mail@legalsuper.com.au or on 1800 060 312, 8 am to 8 pm (AEST), Monday to Friday to book an appointment.

Endnotes page 59 Legal Super Pty Ltd ABN 37 004 455 789 is the Trustee of legalsuper ABN 60 346 078 879, AFSL 246315. This is general information and does not take into account your personal needs. Past performance is not a guide to future performance.

CA SE NOTES - SUPREME COURT

CAMERON FORD BARRISTER, ARBITRATOR, ADJUDICATOR, MEDIATOR

www.cameron-ford.com

Supreme Court judgments Civil procedure Abuse of process – relitigating issues finally determined In DO v Attorney-General (Cth) & Ors [2021] NTSC 5, Brownhill J dismissed an application for habeas corps as an abuse of process because it sought to relitigate issues finally determined in the Federal Circuit Court, the Full Court of the Family Court and the High court, there was ample opportunity to raise the arguments there that were raised here, the orders were final and binding on the plaintiff, the essentials issues were the same, there was no plea of fresh evidence, it would be oppressive and unfair to the defendant, the principle of finality would be undermined, and the balance of justice supported dismissing the proceeding.

Costs Differential and indemnity orders In Young & Conway v Chief Executive Officer, Housing (Costs) [2021] NTSC 8, Blokland J declined to make an differential costs order based on success on individual issues, saying the background, context and facts had relevance to most issues a that the appellant was substantially, although not overwhelmingly, more successful than the respondent. Her Honour said it would be unfair to order each party to bear its own costs on the basis the matter had been remitted to NTCAT to

determine according to law as this was contrary to practice and would discourage appeals on questions of law. Her Honour declined to award indemnity basis sought because a party conceded an issue. Her Honour said that, although the issue should have been conceded earlier, it was appropriate to take time to consider.

Criminal procedure Valdity of complaint – ambiguity, specificity, duplicity In Whittens Pty Ltd v Judge Fong Lim & Anor [2021] NTSC 9, Brownhill J dismissed an application for judicial review of the Local Court’s holding a complaint was valid. Her Honour held that that it is jurisdictional error not to dismiss an invalid complaint, just as it is to dismiss a valid complaint.

A reference to ‘workers’ in the complaint referred to, in the context, workers of the accused employer and was not ambiguous. A complaint alleging breach of a duty in failing to take reasonably practicable measures must state what measures should have been taken but need not specify the detailed actions which it was reasonably practicable for the accused to take. It is proper to charge an accused with a breach of its health and safety duty by reference to the acts or omissions of its employees.

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CA SE NOTES - SUPREME COURT Crime

Crime

Succession

Intentional cultivation and taking part

Verdict unsafe – tasing unnecessary

Proof beneficiary aware

In R v Paton [2020] NTSC 82, Barr J held that the offence under s 6(1) of the Misuse of Drugs Act 1990 (NT) that a ‘person intentionally cultivates, or takes part in the cultivation of, a plant’ requires intention for both cultivation and taking part in cultivation. The word ‘intentionally’ qualifies ‘cultivates’ and ‘takes part in the cultivation’. Even if that is not the case, intention is required for taking part in cultivation because s43AM(1) of the Criminal Code 1983 (NT) state that intention is the fault element where no fault element is specified.

In Mangurra v Rigby [2021] NTSC 6, Kelly J set aside a conviction for assault police on the basis the trial judge should have had a reasonable doubt that the force used by the officers in tasing the appellant was, objectively, ‘not unreasonable’ and therefore whether they were acting in the execution of their duty.

In the Estate of Baguley [2021] NTSC 4, Blokland J granted letters of probate to the daughter of the deceased after being satisfied that the estranged but not divorced wife was aware of her potential interest in the claim, and that an equitable interest in the property were properly included in the assets.

Sentencing

Work health

Assault police

Valdity of complaint – ambiguity, specificity, duplicity

Crime Serious sex offenders In The Attorney-General of the Northern Territory v GJM (No 1) [2020] NTSC 76, confirmed on review in The Attorney-General of the Northern Territory v GJM (No 2) [2020] NTSC 77, Kelly J made a final continuing detention order pursuant to s31(1) of the Serious Sex Offenders Act 2013 (NT) in respect of a man of advanced age with a history of repeated sexual offending typically accompanied by aggression, and with an inability to grasp the central tenants of sex offender treatment. He would be a serious danger to the community if released, and there were not the resources to provide sufficient supervision.

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In Rigby v Nawia [2020] NTSC 78, Riley AJ upheld a sentence of three months, suspended after three days, for one bite to the shin of an officer through trousers and abrasions to another officer, saying that it was important to support police and that imprisonment might be generally be expected in some cases including in the case of a deliberate assault in order to impede police from performing their work. This was a lower level, unplanned assault by someone of otherwise reasonable standing.

See Criminal procedure – valdity of complaint – ambiguity, specificity, duplicity.

CA SE NOTES - FAMILY L AW

CRAIG NICOL

KELEIGH ROBINSON

EDITOR, THE FAMILY LAW BOOK

CO-EDITOR, THE FAMILY LAW BOOK

craig@thefamilylawbook.com.au

keleigh@thefamilylawbook.com.au

Family law judgments Children Parental capacity not always impacted where concerns held as to a child’s safety in the other parent’s care In Keane [2021] FamCAFC 1 (18 January 2021) the Full Court (Alstergren CJ, McClelland DCJ & Benjamin J) dismissed an appeal from orders made for the care of a 4 year old, where Judge McEvoy found that the father had committed acts of domestic violence towards the mother.

Judge McEvoy ordered that the father spend supervised time with the child, which was to then increase to unsupervised time.

The mother appealed, arguing that the Court had misapplied “the Re Andrews principle” (that the mother’s caregiving capacity would be discernibly impaired by an order that the child have time with the father).

there is an unacceptable risk that the concerned parent’s parenting capacity will be adversely impacted. ( … ) [81] … [T]he Full Court in Marra [ed. full citation: Marra & Marra (Unreported, Full Court of the Family Court, Fogarty, Baker & Butler JJ, 8 September 1993)] held that not only is it necessary for the court to determine whether a parent has a genuine concern about the welfare of the child in the care of the other parent but it is also necessary to determine whether the concerned parent’s parenting capacity will be ‘discernibly impaired’. ( … ) [111] … [A]side from stating that she would be very distressed by such orders, no evidence was placed before the primary judge to assist his Honour in making an assessment of the level of that distress. … [H]is Honour found that the mother would seek appropriate therapy if necessary. … [T]hose findings were … open … on the … evidence … ”

The Full Court said (from [75]): “ … [A]uthorities applying ‘the Re Andrews principle’ … [have] been expressed in a variety of ways ( … ) [80] Subsequent authorities … confirm that it is an error to assume that, in … every case where a parent is concerned about the safety of a child in the other parent’s care, the court will infer that

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CA SE NOTES - FAMILY L AW Property Interim order compelling parties to pay mortgage outgoings set aside – Proximity of the parties’ mediation irrelevant In Fei & Woong [2021] FamCAFC 2 (22 January 2021) Kent J (sitting in the appellate jurisdiction of the Family Court of Australia) allowed an appeal from an interim order made after counsel for the wife made an application for the husband to meet all mortgage payments.

The wife relied upon the husband’s income of $12 396 per week as against the wife’s income of $200 per week.

Counsel for the husband contended each party had capital. The court ordered each party to be equally responsible for all mortgage payments, noting that would entail only “two to three mortgage payments” before mediation.

The wife appealed. Kent J said (from [58]): “ … [T]he … judge’s reasons … support the wife’s argument that his Honour was guided by irrelevant considerations. … [H] is Honour … highlight[ed] each party’s financial situations in six paragraphs … [T]hereafter … is the only reference in his Honour’s reasons which could be … a consideration of the balance of convenience. ( … ) [60] … [H]is Honour was focussed more on … settlement than the consideration of the application on its merits. That

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view is fortified by his Honour’s reference to there only being an approximate two to three mortgage payments before the mediation, which … when coupled with the … implication of his Honour’s reasons that the parties ought reach settlement at … mediation, highlights his Honour’s error. ( … ) [63] It was the … judge’s obligation to consider the relevant law and … take into account only those considerations relevant to its proper exercise. It is not relevant … whether the … judge considered the parties should reach settlement at … mediation (…)

[66] … [T]he wife sought to engage the jurisdiction of the court to grant injunctive relief to preserve capital … . The court was obliged to apply the applicable principles to that application. … The … judge made a … mandatory injunction which order could only be founded upon the power … under s114. … [T]he authorities do not support any proposition … that it is legitimate to impose an injunction for the … purpose of exerting … pressure … to compromise the party’s … claim.”

Property Wife appointed co‑director of corporate trustees to neutralise debate as to disclosure In Hui & Bai [2021] FamCA 6 (20 January 2021) Hartnett J allowed a wife’s interim application to be made co-director of entities, of which the husband was sole director, which owned commercial buildings in its capacity as trustee. One building was worth $45m, encumbered by a $17m mortgage; the wife also being party to a $46.5m personal guarantee to the ANZ bank.

The husband had been sole director of the companies for 13 years. The wife sought to be made a co-director as she alleged the husband had not made full and frank disclosure and she contended the husband had entered into dealings without prior notice, which impacted upon her claim.

The Court said (from [44]): “ … [T]he respondent would be afforded necessary transparency if she were to be appointed as a co-director of the entities … the respondent will be able to have input into commercial decisions made by the applicant solely, or in conjunction with (the property manager) … that may directly impact the value to be attributed to the entities. The Court notes that the evidence before it … is that the appointment of the respondent as a co-director will have no adverse impact on the credit and guarantee structure of the existing facilities….

CA SE NOTES - FAMILY L AW

The Respondent’s exposure as a guarantor to a significant sum … also makes the need for transparency to be more pressing. …

[45] Full and frank disclosure is an ongoing obligation for each of the parties …. Significant disclosure has already been provided by the applicant to the respondent. ( … ) Now that the respondent’s position is enhanced by an order which shall see her appointed as a co-director of those of the parties’ entities …, the debate as to what constitutes proper disclosure , and claim that it has been inadequate, should no longer be an issue. In those instances where matters remain outstanding as between the parties, they are required to act in accordance with their ongoing obligations.”

Children Mother’s evidence of violence between father and his ex-wife lacked probative value and admission would waste time In England & Harrisson [2020] FamCA 1083 (18 December 2020) Altobelli J heard a parenting case where the mother sought to relocate from Sydney to New Zealand with the parties’ 2 year old child (“X”) on an interim and final basis.

Each parent alleged that the other had perpetrated controlling violence during the relationship in the presence of X.

The mother filed an affidavit from the father’s ex-wife (“Ms B”) who lived in the USA. Ms B’s affidavit was 24 pages long and described a history of family violence perpetrated by the father “in quite meticulous detail” ([14]). The father sought that the affidavit be struck out and removed from the court record pursuant to s135 of the Evidence Act 1995 (Cth).

The Court said (from [15]): “ … [I]t was … submitted that Ms B’s affidavit goes to the longitudinal nature of the father’s propensity for family violence and that his violent behaviours were not confined to the … short relationship between the parties ( … ) [16] The father’s opposition to the … affidavit focused on its lack of relevance, its unfair prejudice to him, as well as the inevitable consequences of having to extend fairness to him by presenting evidence in reply to the evidence of Ms B ( … ) [19] … [T]he mother seeks to use Ms B’s affidavit to establish the father’s tendency towards family violence in intimate relationships. ( … ) [20] The predictive value of evidence of behaviour in … similar situations such as intimate relationships allegedly characterised by violence can only be useful if it is incontrovertibly true that past behaviour is predictive of future behaviour. But that is not incontrovertibly true. ( … )

The Court’s impression of Ms B’s evidence is, therefore, that its probative value is low. ( … ) [26] … [T]he father has identified nine witnesses who he would need to call, in addition to this own evidence …. [H]e has foreshadowed that he may need to produce documentary evidence from Country F of up to 1000 pages … [T]he mother’s representative … had to accept that the mother could not constrain the father’s case in response to Ms B’s affidavit. ( … ) [31] … [T]he admission of Ms B’s evidence is therefore not permitted on the basis that it lacks probative value and its admission would cause or result in undue waste of time.”

Property Contributions must be considered “holistically” and “weighed collectively” In Benson & Drury [2020] FamCAFC 303 (7 December 2020) the Full Court (Strickland, Watts & Austin JJ) dismissed with costs an appeal by a de facto husband.

The parties’ jointly submitted at trial that their contributions were equal save for two disputes: initial contributions; and the respondent’s claim that domestic violence had made her contributions significantly more arduous per Kennon [1997] FamCA 27 (“Kennon”).

Judge Kari declined to give greater weight to the appellant’s initial contributions, finding that to do so would ignore the contributions of both parties.

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CA SE NOTES - FAMILY L AW

Her Honour found that the appellant perpetrated physical violence against the respondent concluding that the respondent’s “Kennon claim is made out. ( … ) I have assessed the adjustment at five per cent such that the division was 55:45 overall.” [20] The Full Court said (from [34]): “( … ) [T]he … judge found the parties’ overall contributions were equal … then went on to reason that the [respondent’s] … contributions warranted an ‘adjustment’ of an extra five per cent as her ‘Kennon claim’ was made out.

[35] The … question … is how a judge takes into account the contributions of one party, … made significantly more arduous by the conduct of the other … . The answer is … a holistic approach. The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties ( … ) [37] [T]he use of the short-hand descriptor of a ‘Kennon claim’ is … liable to induce error because the issue is not a stand-alone claim, but is rather integral to the entire process ( … ) [77] … [C]onsidering all of the evidence before the primary judge, including the evidence about the [appellant’s] … initial contribution of real property and the impact of family violence on the [respondent’s] … contributions, … an appropriate, just and equitable contribution-

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based division … is 55/45 per cent in the [respondent’s] … favour.”

Spousal maintenance Court erred in allowing husband a “financial buffer” for “vicissitudes of life” when calculating interim spousal maintenance In Simpkin [2020] FamCAFC 315 (17 December 2020) Ryan J, sitting in the appellate jurisdiction of the Family Court of Australia, allowed in part an appeal of interim orders where the wife was unable to work and the husband worked in a managerial position.

The husband was found to have a weekly excess of income of $1327. The Court ordered the husband to pay maintenance of $750 per week to allow him “some form of financial buffer” ([15]). The Court dismissed the wife’s application for an interim costs order ([13]).

Ryan J said (from [16]): “The reference to ‘the vicissitudes of life’ is to the [husband’s] … submission that the Court could not … proceed on the basis that he would continue to earn at his current level and … he could be made redundant.

[17] … [T]he primary judge failed to consider that if the [husband’s] … circumstances suffered the … setback, he could … apply for it to be varied or discharged. ( … )

[18] … [T]he primary judge should have determined that it was reasonable for the [husband] … to pay interim spousal maintenance in the sum of $1327 per week … ” As to the wife’s application for an interim costs order, Ryan J said (from [23]): “[C]ounsel for the [wife] … relied heavily on Zschokke [1996] FamCA 79 … where this Court identified factors relevant … : 1. a position of relative financial strength … of the respondent; 2. a capacity … of the respondent to meet his … litigation costs; and 3. an inability … of the applicant to meet … her litigation costs.

[24] … [T]he first two factors … were established …. However, … fatal to the application … the third … was not. … The [wife] … does not wish to access her superannuation … and her preference is to receive a share of the [husband’s] … savings.

A … preference does not make the proposed order just and the question … is whether the … [wife] … is unable to meet her litigation costs ( … )” The Court varied the interim order for maintenance from $750 to $1327 per week.

CA SE NOTES - FAMILY L AW Children

Ryan J said (from [26]):

Children

Belligerent grandfather’s time with child reduced from fortnightly to monthly on appeal by parents

“ … [T]he grandfather has a track record of belligerent refusal to abide reasonable requests by the parents ( … )

In Sarti and Anor & Sarti (No. 3) [2020] FamCAFC 319 (17 December 2020) Ryan J, sitting in the appellate division of the Family Court of Australia, allowed the separated parents’ appeal from interim parenting orders made for a grandfather to spend time with his grandson each fortnight.

[27] Had the … judge noticed … that the grandfather’s behaviour towards the parents … created tension between the parents, the finding … that the grandfather’s behaviour was unlikely to negatively impact on the child would not have been made. ( … )

Mistaken findings of coercive, controlling behaviour – Family consultant’s “impression” of child’s wishes required further consideration

The parents had implemented a week-about arrangement for the child between them and a monthly arrangement for the grandfather. The father and the grandfather had a strained relationship; the grandfather foreshadowed court proceedings in “antagonistic” correspondence ([8]); and there was an incident between the mother and the grandfather at the child’s preschool which left the mother “very rattled”, “threatened, anxious and upset” ([7]).

The grandfather relied upon a report of a general practitioner as to his suffering from inoperable liver cancer which was such that he had three months to live.

[36] It is appropriate to give some weight to the parents’ decision to cease the child’s contact with the grandfather and their reasons for so doing.

It was a carefully considered and reasonable exercise of their parental authority. [T]here is evidence which shows that the child enjoyed his time with his grandfather … . But for the fact of their pre-existing relationship, greatest weight would have been given to the parents’ decision on the issue. … [N]otwithstanding the risks arising from the effect … on the parental relationship, it is in the child’s best interests for him to resume his relationship with his grandfather. ( … ) [38] … Once every four weeks is an arrangement with which the child is familiar and the parties have shown they can manage. ( … )”

In Lancefield (No. 2) [2020] FamCAFC 312 (22 December 2020) the Full Court (AinslieWallace, Ryan & Aldridge JJ) allowed in part an appeal where an order was made changing the residence of 11 and 9 year‑old‑children.

The mother had been hospitalised in respect of her mental health but had “capacity to provide for the children’s … needs” ([5]). The children resided with the father until trial.

An incident occurred in 2018 where the family iPad was activated and the father accessed the mother’s internet search history which included “how to tie a hangman’s noose” ([31]). The father contacted the mother’s brother about the searches and family sharing ceased. Judge B Smith found that the father had “continued to monitor and collect information” about the mother, which amounted to “family violence and/or controlling behaviour” of “critical importance … in considering where [the] children should primarily reside” ([48]).

The Full Court said (from [54]): “ … [G]iven the mother’s history of threats of suicide, it was reasonable for the father to be concerned about what the

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mother’s searches suggested about her mental health ( … ) [67] … [T]he gravamen … is that the conduct was coercive and controlling behaviour and amounted to family violence. …

[T]he trial reasons which show how important the findings of ‘coercion or control’ were to the decision to remove the children from the father’s primary care. ( … )” The eldest child expressed a desire for the parenting arrangements to stay as they were. Statements from the youngest child to the family consultant left the consultant with the ‘impression’ that that child preferred to live with his mother ([82]).

whether it was significant that one child had a clearly expressed view … compared to the Family Consultant’s impression about the younger child’s current unstated preference. ( … ) [85] The … judge had already decided that the mother’s case … which probably explains why … additional matters were not considered when deciding the weight attributed to the family consultant’s ‘impression’ of the younger child’s views … [H]is Honour’s decision to place greatest weight on those other factors, underpins the importance of the findings raised in relation to controlling behaviour …”

The Full Court said (from [83]): “ … [G]iven the emphasis that was placed on the children’s views in the trial, it was important … to consider

DIFFICULTY COMMUNICATING YOUR THOUGHTS? LawCare: Caring for the legal profession in the NT The Law Society NT funds a professional, confidential and free counselling service for our members and their immediate family, provided through Employee Assistance Service Australia (EASA).

If you are experiencing workplace, personal or emotional issues which are affecting your work or personal life, please call LawCare via the EASA Program 24-hour support line on 1800 193 123 or visit their website at www.easa.org.au.

When booking an appointment, please inform the operator that you are a Law Society NT member. This service is completely confidential. The Society will only receive statistical information on the numbers accessing the service.

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CA SE NOTES - HIGH COURT

DR MICHELLE SHARPE BARRISTER – GENERAL COMMERCIAL, REAL PROPERTY, DISCIPLINARY AND REGULATORY LAW VICTORIAN BAR

(03) 9225 8722 msharpe@vicbar.com.au The full version of these judgments can be found at www.austlii.edu.au

High Court judgments CONSTITUTIONAL LAW Implied freedom of movement In Gerner & Anor v State of Victoria [2020] HCA 48 (6 November 2020) the High Court was asked by the parties to rule on the question of whether the Constitution provides for an implied freedom allowing people in Australia to move within the state where they reside without arbitrary restriction of movement.

On 16 March 2020, the Minister for Health declared a state of emergency for the whole of Victoria by reason of the risk posed by COVID-19 to public health. On the declaration of a state of emergency, the Chief Health Officer (CHO) is empowered, by ss200(1)(b) and (d) of the Public Health and Wellbeing Act 2008 (Vic) (Health Act), to “restrict the movement of any person or group of persons within the emergency area” and to “give any other direction” that he “considers is reasonably necessary to protect public health”.

Since the declaration, the CHO has issued directions restricting the movement of people within Victoria which were in force at the time the matter came before the High Court (Lockdown Directions).

The first plaintiff resided in Melbourne and was the owner of the second defendant, a restaurant busines in Melbourne. The Lockdown Directions had a devastating impact on the plaintiffs’ restaurant

business. The plaintiffs commenced proceedings in the original jurisdiction of the High Court seeking declarations that ss200(1)(b) and (d) of the Health Act and the Lockdown Directions are invald as an infringement of an implied right to freedom of movement in the Constitution. The plaintiffs argued that the freedom could be implied in three alternative ways. First, the plaintiffs argued that the freedom could be “implied from the text and structure of the Constitution and is logically and practically necessary for the preservation of the constitutional structure” (Preservation Argument). Second, the plaintiffs argued that the freedom could be “implied from the system of representative and responsible government enshrined in the Constitution and as part of the implied freedom of political communication” (Political Communication Argument). Third, the plaintiffs argued that the freedom could be “implied as an aspect of s92 of the Constitution” (which provides for free trade between Australian states) (Free Trade Argument).

The High Court (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) unanimously, and in a short, single set of reasons, determined that the freedom, contended for by the plaintiffs, did not exist. At the outset the High Court made two key observations.

First, the High Court, at [10], observed that while, at common law, people could move about as they saw fit, this freedom could be limited by statute. As

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such, a constitutional guarantee of freedom of movement is properly understood as a limitation on legislative or executive power (rendering legislation that encroaches on this guarantee invalid) rather than a “personal right”. Second, the High Court, foreshadowing its dismissal of the appeal, observed, at [12], that the orthodox view is that freedom, of communication or movement, is protected by the Constitution only “as an aspect or corollary of the protection of freedom of political communication”.

The High Court then went on to swiftly dispatch each of the arguments advanced by the appellant in support of a broad idea of freedom.

In respect of the plaintiffs’ Preservation Argument, the High Court pointed out that this argument was not supported by any High Court authority. Indeed, the idea that the Constitution might imply a broad freedom of communication had been expressly rejected (Miller v TCN Channel Nine Pty Ltd (1986) 161 CLT 556). And, on the matter of what the Constitution implies, the High Court reasoned, at [14], that this was to be determined by the terms and structure of the Constitution given that “federation is not a ‘one size fits all’” proposition.

Put another way, the kind of federation created depends on the text and structure of the very constitution that created it.

Here, the High Court remarked, at [15], that in light of the fact that the legislative powers of the states was expressly

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preserved in the Constitution (s106), it would be “surprising, to say the least” if state laws had to conform to the limitation proposed by the plaintiffs. The High Court appeared to be unimpressed by the plaintiffs’ argument that, in the absence of an implied freedom to the contrary, states might abuse their legislative power and create “enclaves” that divided people of the Commonwelath and prevented them from knowing each other. The High Court, at [18], reasoned that to “point to the possibility that legislative power may be misused is distinctly not to demonstrate a sufficient reason to deny its existence”.

As to the plaintiffs’ Political Communication Argument, the High Court observed that the implied freedom of communication (recognised in Lange v Australian Broadcadting Corporation (1997) 189 CLR 520) is limited to political communication only. And, the plaintiffs did not plead that the Health Act or the Lockdown Directions restricted political communications.

Finally, in respect of the plaintiffs’ Free Trade Argument, the High Court noted that s92 of the Constitution expressly provides that interstate, and not intrastate, freedom is to be absolutely free. It follows that the implication, contended for by the plaintiffs, is contrary to the explicit text of the Constitution. The High Court also noted that the framers of the Constitution were concerned

with preventing states from charging importation duty on goods coming into its territory and not with regulating internal trade, unconnected with interstate trade.

CRIMINAL LAW Provocation In Peniamina v R [2020] HCA 47 (9 December 2020) the High Court was required to consider the partial defence of provocation as it operates under s304(1) of the Criminal Code (Qld) (the Code).

Section 304(1) of the Code provides that a partial defence of provocation is available where the accused “does the act which causes the death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool”. The Code then provides for two exceptions to the partial defence. First, under s304(2) of the Code, the partial defence is not available (“other than in circumstances of a most extreme and exceptional character”), if the “sudden provocation” is “based on words alone”. Second, under s304(3) of the Code, the partial defence is not available (“other than in circumstances of a most extreme and exceptional character”) if the accused has killed someone with whom he or she was in a domestic relationship and the “sudden provocation is based on anything done by the deceased or anything the person believes the deceased has done” to either end or change nature of the relationship.

CA SE NOTES - HIGH COURT

Here the appellant and the deceased were married and had four young children. The deceased went on a long holiday to New Zealand with the children and, on her return, the appellant began to suspect that she had been having an affair during her holiday.

The appellant searched through the deceased’s mobile phone and discussed his suspicions with relatives. On the day that the deceased was killed, the appellant snatched the deceased’s mobile phone and, among other things, telephoned the man who had been messaging the deceased who said “horrible things” to him. The appellant subsequently stayed at a relative’s house for two to three hours and began preparing for the possibility that the deceased would leave him by creating his own email address and Facebook account.

When the appellant returned home he tried to talk to the deceased. The appellant said that the deceased looked like she didn’t care and told him to “stop talking shit”. The appellant then struck the deceased causing her to bleed from her mouth. The deceased went into the bathroom before going into the kitchen. The appellant heard the deceased open a kitchen drawer. When the appellant walked into the kitchen he found the deceased holding a knife.

The appellant attempted to grab the knife but the deceased pulled back the knife causing a deep cut to the appellant’s right palm. The appellant then managed to grab the knife and it was at this point that the appellant said that he thought he wanted to kill the deceased. The appellant killed the deceased as she tried to get away by stabbing her numerous times and striking her twice with a concrete bollard, retrieved from the garden, when the deceased managed to get through the front door of their home and hide behind a car in the driveway. It was a ferocious attack witnessed by at least one of the couple’s young children. When the police arrived the appellant telephoned his mother.

He told his mother, among other things, “she cheat on me too many time, mum”. And when first asked what had happened, that same evening, the appellant responded in part “she cheated on me”.

At trial it was the appellant’s case that he killed the deceased after having been provoked by her threatening him with a knife and cutting him with it. It was the prosecution’s case that the appellant knew that the deceased’s conduct with the knife

was done in the context of her trying to change the nature of the relationship and as such, pursuant to s304(3) of the Code, the partial defence of provocation was not available to the appellant.

In his directions, the trial judge directed the jury to consider, among other things, whether the appellant had proven that s304(3) of the Code did not apply. In particular, the trial judge directed the jury to consider whether something preceding the stabbing or the stabbing itself was an act done to change the nature of the relationship between the appellant and deceased.

The jury returned a verdict that the appellant was guilty of murder. The appellant unsuccessfully appealed against his conviction to the Court of Appeal of the Supreme Court of Queensland on the ground that the trial judge erred in directing the jury of the necessity to consider s304(3) of the Code in circumstances where it was the appellant’s case that his loss of self-control was not “based on” anything done (or believed to have been done) by the deceased to change the nature of their relationship. Unsurprisingly, the focus of the argument before the Court of Appeal (and later in the High Court) was on the meaning of the phrase “based on” in s304(3). Morrison JA and Applegarth J, in separate reasons, construed the phrase widely. Their Honours held that the words “based on” in s304(3), in contrast to the words “caused by” in s304(1), invite consideration of whether the sudden provocation was, in fact, founded on something done by the deceased to change the nature of the relationship. Put another way, s304(3) is not (on a wide construction) limited to the provocative conduct the appellant relied on at trial as being causative of his loss of control.

McMurdo JA, in dissent, held otherwise. McMurdo JA advocated, instead, for a narrower construction of s304(3). McMurdo JA noted that the term “sudden provocation”, employed throughout s304, is a term of art concerned with, and related to, the accused’s temporary loss of self-control. McMurdo JA considered that the term, “sudden provocation”, must have a uniform meaning throughout s304.

From this, McMurdo JA reasoned that the words “based on” must be understood to refer to a causal relationship between the sudden provocation

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and the deceased’s conduct to change the nature of the relationship.

In the High Court, McMurdo JA’s reasons were closely examined.

The majority, (Bell, Gageler and Gordon JJ) favoured McMurdo JA’s reasoning and allowed the appeal. Conversely, the minority (Keane and Edelman JJ), dissenting, explicitly rejected McMurdo JA’s reasoning and dismissed the appeal.

The majority conceded, at [14], that the words “based on” are capable of conveying a broader connection than one of simple causation but considered that there were good reasons for resisting a wider construction of s304(3).

Here, the majority referred to the context of s304(3), and, in particular, the legislative history of the section and associated extrinsic materials. The majority noted that ss304(2) and 304(3) were inserted into the Code on the recommendations of

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the Queensland Law Reform Commission. The majority observed that the evident intention of s304(2) was to give statutory force to the common law principle that the defence does not apply where the accused’s loss of control was excited by words alone.

Plainly, the majority noted, the connection referred to in s304(2) is causal only (in the sense that it was the deceased’s words that induced the accused’s loss of control not that they were immediate). The majority considered, at [15], that construing the term “based on” as meaning “caused or induced by” would give a “workable and coherent operation” of s304(3).

By contrast, the majority considered, at [16], the wider construction, preferred by Morrison JA and Applegarth J in the Court of Appeal, would give an uncertain operation to s304(3). This wider construction would necesitate an inquiry into the nature and extent of the

connection required to invoke the section.

But the minority thought, at [87], that “(t)he deliberate contrast in the language used by the legislation points strongly against reading ‘based on’ as ‘caused by’”. The minority noted that “(t)he expression ‘based on’ clearly casts a wider net of connections than ‘caused by’”.

And the minority considered, at [93] that, properly understood, s304(3) refers to “the potency of acts of the deceased as a basis or foundation of the accused’s loss of self-control that excludes the application of s304(1)”.

The minority held, at [97], that s304(1) is informed by a policy choice by the legislature that a loss of self-control founded on a change, or the possibility of a change, in a domestic relationship is an unacceptable excuse for killing a domestic partner.

CA SE NOTES - FEDER AL COURT

DAN STAR QC (03) 9225 8757 danstar@vicbar.com.au The full version of these judgments can be found at www.austlii.edu.au.

Numbers in square brackets refer to a paragraph number in the judgment.

Federal Court judgments PRACTICE AND PROCEDURE Consideration of the “Harman”/“Hearne v Street” obligation – whether the obligation applies to pleadings The appeal in Treasury Wines Estates Limited v Maurice Blackburn Pty Ltd [2020] FCAFC 226 (17 December 2020) concerned the obligation on a person not to use a document or information for any purpose other than the proceeding, where the person knows that the document or information was obtained because another party to the proceeding disclosed the document or information under compulsion (be it by court order, a rule of court or otherwise). This is the obligation in Harman v Secretary of State for the Home Department [1983] 1 AC 280 as applied in Hearne v Street (2008) 235 CLR 125.

Relevantly, pleadings in a class action proceeding contained information which had been obtained under compulsion (namely, documents produced during discovery). Those pleadings were published on the Court’s website and accordingly published to the world. That proceeding was settled and orders were made dismissing it. Subsequently, the solicitors and counsel from the earlier proceeding were retained in another class action against the same respondent. They used the pleadings from the earlier proceeding, which was obtained from the Court’s website, to prepare the statement of claim in the later proceeding.

A key issue in the appeal was whether the obligation in Hearne v Street not to use documents produced under compulsion for purposes other than the proceeding applied to pleadings. In respect of this issue, the Full Court held that the primary judge made no error in concluding that the solicitors and counsel (and thus the second respondent, their client) were not bound by the Hearne v Street obligation in respect of the pleadings in the earlier proceeding (at [14](8)).

The Full Court analysed the decision in Hearne v Street and subsequent cases (at [38]-[82]; and see especially their conclusions at [83]). The conclusions of Jagot, Markovic and Thawley JJ included (at [83](5)): “If our view of Hearne v Street at [96] is correct then the formulation of the obligation in the common law of Australia is that the obligation applies to a document filed in court or discovered under compulsion until the document is admitted into evidence. If our view of Hearne v Street is incorrect then, nevertheless, the weight of authority in Australia supports the view that the obligation ceases to apply to a document once it is admitted into evidence: Esso, Ainsworth, Hospital Products, McPherson, and Eltran. Either way, at the least, the rationale for the existence of the obligation in Australia does not extend to a secondary source which has itself become public (the most obvious examples of which are a

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judgment or a transcript). Harman never suggested to the contrary . . .”

In any event, if it had been necessary to do so, the Full Court would have ordered that the respondents be released from the Hearne v Street obligation and granted leave to use the information in the pleadings in the earlier proceeding for the purpose of the later proceeding (at [14](9); and [94]-[109]).

ADMINISTRATIVE AND MIGRATION LAW Nature of a court order that a matter be remitted to the Administrative Appeals Tribunal “for determination according to law” – complementary protection provisions in the Migration Act 1958 In BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222 (10 December 2020) the Full Court dismissed an appeal from the Federal Circuit Court of Australia. The main issue raised by the appeal was whether the “complementary protection” provisions in the Migration Act 1958 (Cth) are capable of application where an applicant for a protection visa claims that he or she will suffer psychological harm if returned to his or her home country on the basis of an act that occurred in the past in the home country. The Full Court held that, having regard to the text, legislative history and context, the preferable construction of s36 of the Migration Act is that an act or omission that is wholly in the past is not capable of engaging the complementary protection criterion in the Migration Act (at [86]).

One of the grounds of appeal was that the Federal Circuit Court erred by failing to hold that the Administrative Appeals Tribunal (AAT) erred by failing to apply an earlier judgment of the Federal Circuit Court (ground 1). In the earlier judgment the Federal Circuit Court set aside a decision of the AAT and remitted the matter to the AAT for “determination according to law”. The appellant contended that the earlier Federal Circuit Court decided that the complementary protection

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provisions could apply where a person will suffer the consequences of a past act, and the AAT was bound to apply that decision (particularly in circumstances where the Minister did not appeal from the Federal Circuit Court judgment).

The Full Court rejected ground 1. In so doing, it considered whether the AAT is bound to decide the matter in accordance with a legal conclusion expressed in the reasons for judgment of the court remitting the matter, irrespective of the correctness of that conclusion (at [58]-[60]). Chief Justice Allsop and Moshinsky and O’Callaghan JJ explained (at [58]): “. . . The matter was remitted to the Tribunal “for determination according to law”. The Tribunal was therefore bound to apply the law to the determination of the matter following its remittal. It may be accepted that, in the usual case, the law will have been correctly stated in the judgment of the court that remits the matter.

However, there may be exceptional cases where that is not the case. For example, it may be that, in the period between the judgment of the court remitting the matter and its redetermination by the Tribunal, a higher court has resolved the issue differently from the court that remitted the matter. In such a case, the obligation on the Tribunal would be to apply the law as stated by the higher court, this being the correct statement of the law on the point.”

CA SE NOTES - FEDER AL COURT CONSUMER LAW Misleading or deceptive conduct – trading corporation – in trade or commerce In ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) v Transport Workers’ Union of Australia [2020] FCA 231 (22 December 2020) the Full Court heard ALDI’s appeal from the dismissal of its claim under s18 of the Australian Consumer Law, and specifically the conclusions that the communications made by the respondent (TWU) were not made in trade or commerce and that the TWU is not a trading corporation.

The events underlying the claim were that, during 2017, the TWU published various communications relating to ALDI in the form of media releases, hand-distributed pamphlets and flyers, a media interview and a Facebook post, and undertook certain protest actions at a number of ALDI stores and an ALDI distribution centre. The communications included statements to the effect that ALDI’s contractual arrangements with trucking companies resulted in truck drivers being underpaid and put under pressure, causing them to speed and drive long hours without mandatory breaks with a detrimental impact on transport safety. ALDI commenced a proceeding against the TWU which included a claim alleging that its conduct constituted a breach of s18 of the Australian Consumer Law (being Schedule 2 to the Competition and Consumer Act 2010 (Cth), which prohibits misleading or deceptive conduct. The primary judge found that the communications made by the TWU were not made in trade or commerce and also that the TWU was not a trading corporation. Although it was unnecessary to resolve whether the relevant communications were misleading or deceptive or likely to mislead or deceive, the primary judge concluded that the alleged representations made by the TWU in the communications, save in one respect, were likely to mislead.

matter of fact and as a matter of legal principle, the Full Court rejected ALDI’s submissions that the TWU’s conduct was in trade or commerce because it was intended to discourage consumers from shopping at ALDI (at [47]). Besanko, Bromberg and O’Bryan JJ stated at [53]: “Misleading conduct may affect, and may be intended to affect, the choices of consumers as to the products they purchase and the places they purchase from. However, that circumstance alone does not support a finding that the misleading conduct is in trade or commerce.

The misleading conduct certainly relates to trade or commerce. But the conduct will not be in trade or commerce unless in some relevant way the conduct can be said to be an activity that bears a trading or commercial character. Mere advocacy of a social, industrial or political cause is not such an activity. There are many examples of this principle in the decided cases . . .”

The Full Court also rejected ALDI’s contention that the core activities of the TWU, seeking to advance the industrial interests of its members, is a trading or commercial activity such that the TWU is a trading corporation (at [62]). However, that is not to suggest that a union is incapable of conducting a commercial or business activity; for instance, a union may provide training or similar services for reward. The Full Court’s conclusion was limited to the contention advanced by ALDI that the primary activities of the TWU, industrial advocacy, are a commercial or business activity (at [65]).

The Full Court dismissed ALDI’s appeal. On when conduct is “in trade or commerce”, the Full Court analysed the leading authority, being the High Court decision in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 (at [27]-[36]). As a

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ENDNOTES

Endnotes

Quick reference guide for practitioners (ANROWS Insights 10/2018). Sydney, NSW: ANROWS 6.

19 Above n 5, 48.

Coercive control, social entrapment and criminalised women (pages 20-25) 1 Our Watch, Australia’s National Research Organisation

20 Ibid 102.

21 ANROWS (ed) (2019) Women who kill abusive partners: Understandings of intimate partner violence in the

for Women’s Safety (ANROWS) and VicHealth (2015)

context of self-defence. Key findings and future

Change the story: A shared framework for the primary

directions (Research to policy and practice, 03/2019)

prevention of violence against women and their children

Sydney, NSW: ANROWS.

in Australia, Our Watch, Melbourne, Australia, 20.

2 Australian Institute of Health and Welfare 2020. The health and welfare of women in Australia’s prisons.

22 Tarrant, S., Tolmie, J., & Giudice, G. (2019). Transforming legal understandings of intimate partner violence (Research report 03/2019). Sydney, NSW: ANROWS 17

Cat. no. PHE 281. Canberra: AIHW. See also Australia’s

23 Ibid.

National Research Organisation for Women’s Safety.

24 Ibid 15.

(2020). Women’s imprisonment and domestic, family,

25 Ibid.

and sexual violence: Research synthesis (ANROWS

26 Ibid.

Insights, 03/2020). Sydney: ANROWS.

27 Ibid.

3 Australia’s National Research Organisation for Women’s Safety (2020) ‘Women’s imprisonment and domestic,

28 Ibid 16.

29 Battered woman syndrome excuses or seeks to explain

family and sexual violence: Research synthesis’

the failure to make a rational choice: See, Tarrant,

(ANROWS Insights, 03/2020) Sydney. NSW: ANROWS

S., Tolmie, J., & Giudice, G. (2019). Transforming legal

4 NT Police Force, Alice Springs Crime Statistics (Website, 2020) accessed 18 February 2021 (https://pfes.nt.gov.

understandings of intimate partner violence (Research report 03/2019). Sydney, NSW: ANROWS 16.

au/police/community-safety/nt-crime-statistics/alice-

30 Above n 22, 16.

springs)

31 Ibid 27.

5 See, Nancarrow, H., Thomas, K., Ringland, V., & Modini,

32 Ibid.

T. (2020). Accurately identifying the “person most in

33 Ibid 21.

need of protection” in domestic and family violence law

34 Above n 5, 97.

(Research report, 23/2020). Sydney: ANROWS.

35 Ibid.

6 Ibid 10.

8 Ibid s 41.

Directors’ duties and cybersecurity (pages 31-32)

9 Taylor J & Marshall J (2020) ‘Criminalisation of Coercive

1 Corporations Act 2001 (Cth).

7 See Domestic and Family Violence Act 2007 (NT)

Control’, NT Law Society Balance Magazine 4(20).

10 Above n 5.

11 Ibid.

12 Ibid 51.

13 Ibid 56.

14 See Domestic and Family Violence Act 2007 (NT) ss 121122.

3 Legal Professional Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW).

4 Australian Cyber Security Centre, ACSC Annual Cyber Threat Report July 2019 to June 2020 (Annual Report, 3 September 2020) 4.

5 Kate Creighton-Selvay et al, ‘Cybersecurity and

15 Above n 5, 17.

Directors’ Duties: a New Regulatory Era?’, King &

16 Ibid 96.

Wood Mallesons (Web Page, 28 September 2020) <

17 Ibid.

https://www.kwm.com/en/au/knowledge/insights/

18 Toivonen, C., & Backhouse, C. (2018). National Risk

cybersecurity-and-directors-duties-a-new-regulatory-

Assessment Principles for domestic and family violence:

58

2 Privacy Act 1988 (Cth).

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era-20200928>.

ENDNOTES

6 Corporations Act 2001 (Cth) s 180.

7 Daniels v Anderson (1995) 37 NSWLR 438.

8 Brian Lee, ‘Cybersecurity - is this a new directors’ duty?’,

5 WGEA (2016) Unpaid care work and the labour market (https://www.wgea.gov.au/publications/unpaid-carework-and-the-labour-market)

Mills Oakley (Web Page, August 2018) < https://www.

6 WGEA (2019), Agency reporting data (https://data.

millsoakley.com.au/thinking/cybersecurity-is-this-a-

wgea.gov.au/industries/1#gender_ comp_content)

new-directors-duty/>.

9 Dr Nicholas Tate and Alexander Tate, A Director’s Guide to Governing Information Technology and Cybersecurity (The Australian Institute of Company Directors, 2016) 5.

10 Australian Securities and Investment Commission, Cyber

7 https://humanrights.gov.au/our-work/3-themeone-economic-independence-women-listening-tourreport#heading3_5 8 Parliament of Australia, Chronology of superannuation and retirement income in Australia https://www.

Resilience: Health Check (Report No 429, March 2015)

aph.gov.au/About_Parliament/Parliamentary_

38 [148].

Departments/Parliamentary_Library/pubs/BN/0910/

11 Corporations Act 2001 (Cth) pt 1.5 cl 5.3; Australian Securities and Investments Commission, ‘Company Director Liabilities When Things Go Wrong’, ASIC (Web

ChronSuperannuation 9 Parliament of Australia, Economic Security for Women in Retirement, Report Chapter 2 https://www.aph.gov.

Page, 1 May 2019), < https://asic.gov.au/for-business/ small-business/starting-a-company/small-businesscompany-directors/company-director-liabilities-whenthings-go-wrong/#consequences>.

12 Privacy Act 1988 (Cth) s 13G. 13 Legal Professional Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 9.1.

14 Australian Securities and Investments Commission, ’20191MR ASIC Commences Proceedings Against RI Advice Group Pty Ltd for Alleged Failure to Have Adequate Cyber Security Systems’ (Media Release, 21 August 2020) para 5.

Let’s close the super gap (pages 41-43) 1 https://www.wgea.gov.au/publications/australiasgender-pay-gap-statistics 2 2018 https://www.industrysuper.com/media/closingthe-gender-pay-gap-wont-close-the-super-gap-newanalysis-of-abs-data-reveals/ 3 The Workplace Gender Equality Agency (WGEA) calculates the national gender pay gap using Australian Bureau of Statistics’ Full-Time Adult Average Weekly Ordinary Time Earnings data from the Average Weekly Earnings survey (cat. no. 6302.0).

4 https://aifs.gov.au/aifs-conference/fathers-andparental-leave

LAW SOCIETY NT BALANCE EDITION 1|21

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Even though restrictions have eased and a vaccine has been developed, we still need to take care.

Coronavirus is still out there and it only takes one person to undo all of the hard work that has be done so far to limit the spread of this invisible killer. ●● maintain physical distancing, ●● wash your hands frequently, and ●● be kind to those around you... please stay at home if you feel unwell.