Balance 2-21 by Law Society NT

2|21

CLANT on amended youth laws Discrimination against women in the Darwin Correctional Centre NTWLA & NTYL event pics

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Contents LAW SOCIETY NORTHERN TERRITORY

Balance 2|21

8.30 am – 5.00 pm Monday – Friday excluding public holidays 3/6 Lindsay Street Darwin NT 0800 GPO Box 2388 Darwin NT 0801 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 © 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: balance@lawsocietynt.asn.au 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.

From the President Time flies when you’re... ?

From the CEO Society news and updates

Criminal Lawyers Association of the NT SNAFU! 10 Australian Pro Bono Centre Solicitors encouraged to sign up to the National Pro Bono Target

NT Women lawyers Assocation News and updates

NT Young Lawyers News and updates

Laura Burfitt Discrimination against women in the Darwin Correctional Centre – an essay

4 May 2021 Admissions Ceremony

Petris Lapis Do you have the mindset for success?

Wise Law Taking out fear and introducing fair

Elias Recruitment Getting your CV ready

Lawcover The importance of effective supervision: Managing the risks

COUNCIL Emma Farnell President Richard Henschke Vice-President Jim McMillan Treasurer Victoria Bell Secretary Anna Gill Councillor Bernadette Raumteen Councillor Bronwyn Haack Councillor Dr Guzyal Hill Councillor Kelly Stephenson Councillor Lisa O’Donoghue Councillor Michael Vailas Councillor Nadia D’Souza Councillor Nicholas Salagaras Councillor Peggy Cheong Councillor Ruth Morley Councillor SECRETARIAT Kelvin Strange Chief Executive Officer Julie Davis Corporate Services Manager Aislinn McIntyre Manager Regulatory Services Fiona Kepert Senior Regulatory Solicitor Des Crowe Complaints Investigator Leonie Stokes Licensing Officer Carolyn Zombolas Events & CPD Coordinator Evie Buffon Publications & Communications Officer Leana Wood Receptionist & Admin Assistant

legalsuper Federal budget and super: Important announcements 40 CASEN OTES Cameron Ford Supreme Court judgments Craig Nicol & Keleigh Robinson Family law judgments Dr Michelle Sharpe High Court judgments Dan Star QC Federal Court judgments

44 47 53 60

Endnotes 68-69

LAW SOCIETY NT BALANCE EDITION 2|21

SAVE THE DATE SAVE THE DATE

Ian Morris Memorial Golf Day Friday 27 August 2021 DARWIN

MONDAY 24 & TUESDAY 25 JANUARY 2022 – DARWIN –

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FROM THE PRESIDENT

EMMA FARNELL PRESIDENT | LAW SOCIETY NT

Content for Balance edition 3/2021 is due Wednesday 18 August.

president@lawsocietynt.asn.au

Time flies when you’re... ? S

Since the start of the COVID-19 pandemic it seems that we, as a community, are more focused on and aware of data: we consume articles with updates on the daily infections; numbers of vaccinations administered and the number of repatriated Australians arriving through Darwin. Thankfully we have not been impacted to the same extent as our family, friends and colleagues interstate, particularly in relation to restrictions on our day‑to‑day life. But I thought it would be appropriate to tap-into that desire for data by providing some points of reference: ●● Council has met 7 times over the year to undertake the business of the Society including regulatory matters; ●● the Law Week Great Debate has been held since about 2007 and after being cancelled in 2020 due to COVID-19, the 2021 event was a huge success;1 ●● there are 22 days until the end of the financial year (at the time of writing this column);2 ●● there are 28 weeks until Christmas;3

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●● there are only 7 remaining public holidays in the Northern Territory (including show-days and Christmas holidays); ●● the Northern Territory’s courts, tribunals and commissions have published 66 decisions online;4 and ●● ABS statistics show that we are working more hours in our jobs compared to the hours we were working last year (nationally, an increase of 31 million hours in April 2021 compared to March 2020). Its clear that the COVID-19 pandemic is going to continue to be a factor over the coming months and that it is an added stressor to an already challenging year. The Society has, for a long period of time, recognised that lawyers often work under enormous pressure and this pressure is likely to be increased due to the ongoing pandemic. It has been a priority of the Society to make a LawCare counselling program available to members and details can be found on the Society’s website here: https://lawsocietynt.asn. au/profession/mental-health-and-wellbeing.html I also try, in these columns, to reflect on the history of the Northern Territory profession including the significant efforts of volunteers

FROM THE PRESIDENT

in providing legal advice and legal services to the community. In an early edition of Balance in 1991 it was reported that the Darwin Community Legal Service would be opening that year noting there were challenges in locating appropriate premises.5 At the time it was noted that: The success of the DCLS will depend largely on the support of the Darwin legal profession, mainly in the form of practitioners offering their time and expertise to the service, either as volunteers or by participating in community education projects.

3 Please accept my apologies if this sparks any fear into the hearts of parents. 4 Noting that this does not include the significant number of decisions handed down which are not published. 5 Link here: http://classic.austlii.edu.au/au/journals/ BalJlNTLawSoc/1991/64.html

It can only be a credit to both DCLS and the profession that the service has continued and grown over the last 30 years. In the 2019/20 financial year DCLS has a number of specialist lawyers and over 60 volunteers. Additionally—almost this time 30 years ago— Dean Mildren QC was appointed as a judge to the Northern Territory Supreme Court. On the 28 June 1991 the then Attorney-General Daryl Manzie noted that “I have no doubt that in the coming years we can expect to see Your Honour’s distinctive style making itself felt on this honourable court”. As a profession, and a community, we have had the benefit of that distinctive style for over 30 years as Justice Mildren has been an Acting Judge of the Supreme Court since February 2013.

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 I would like to thank the NT Young Lawyers for, once again, putting on an excellent event at the Supreme Court on 17 May 2021 and providing a show-case debate which illustrated that the profession is in safe hands. (See photos on pages 19–21). 2 When, for private lawyers, budgets are reset and when funding grants commence from. However generally work continues as if it is

Are you finding it hard to keep it together? LawCare: Caring for the legal profession in the Northern Territory The Law Society Northern Territory 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 or visit their website at www.easa.org.au.

NT toll free: 1800 193 123 Darwin: (08) 8941 1752 Alice Springs: (08) 8953 4225 Servicing all locations in the NT 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.

any other Wednesday.

LAW SOCIETY NT BALANCE EDITION 2|21

FROM THE CEO

KELVIN STRANGE CHIEF EXECUTIVE OFFICER | LAW SOCIETY NT ceo@lawsocietynt.asn.au

(08) 8981 5104

Save the date Law Society NT Annual General Meeting Wednesday 17 November 2021

Society news and updates T

he dry is here again which heralds all those dry season activities we all enjoy along with the influx of visitors escaping to the warmth of northern Australia. It is pleasing on numerous fronts (especially in these times of COVID-19) to see that the Northern Territory has once again become such a popular destination. This time of year also brings with it regulatory compliance season for legal practitioners and firms. First and foremost is the need to renew your practising certificate for 2021/22. As of late May there were still a considerable number of legal practitioners who had not yet applied to renew their certificate. Leaving it late may result in the payment of late fees and ultimately affect your ability to practise. Firms, sole practitioners and barristers are also reminded of their obligations in respect of professional indemnity insurance and are urged to make contact with their approved insurers as soon as possible as the issue of practising certificates is conditional upon insurance requirements being met.

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It is also the time for annual reporting relating to trust accounts for law practices. If uncertain as to your requirements in this regard, please refer to the information available on the Society’s website or look for the reminders in The Practitioner. Finally don’t forget that by now, Annual CPD Certificates should have been submitted. Should you not have managed to accrue the required points in all the required competencies, you have until 30 June 2021 to submit a Supplementary CPD Certificate. As part of Law Week, the Ethics CPD Quiz hosted by Julian Morrow of Chaser fame was a great success. It made a nice change to be able to get together with colleagues in a social setting, enjoy a drink and food and still pick up CPD points. Julian’s unique presentation style and interesting ethical conundrums made it all the more enjoyable. On matters closer to home, the Secretariat is pleased to welcome Aislinn McIntyre back into the Manager Regulatory Services role from parental leave. Equally good news is that the Society has managed to convince Fiona Kepert to remain working at the Society for another year assisting with regulatory matters. The Secretariat and profession is fortunate to benefit

from having not one but two senior skilled and experienced practitioners dealing with regulatory matters in the Northern Territory. In March, the Society bid farewell to longstanding council member and current Treasurer Matthew Littlejohn. Matthew had been involved with and made a valued contribution to the Society’s operations for many years and will be sorely missed. When one door closes however another opens and the Society was very fortunate in having Jim McMillan agree to step into the Treasurer’s role. I mentioned COVID-19 briefly earlier and think it appropriate to end by returning to the topic generally. Whilst the profession and wider community in the Northern Territory and Australia have generally have fared very well in meeting the challenges presented, the threat of coronavirus remains real and will be with us for many years. As such the Society and no doubt the legal profession generally will continue to look at ways to adapt to changing circumstances. Finally, as I sit here typing this with a sore left arm (but little other symptons) I can only urge that everyone consider their personal contribution to responding to COVID-19 when the opportunity arises. Should any members wish to raise any issues affecting the profession with me at any time please feel free to contact me at the Society

NT legislation

INTRO

PASSED

AMENDED

11/05/21

Yes

National Disability Insurance Scheme 25/03/21 12/05/21 (Worker Clearance) Amendment Bill 2021

Local Government Amendment Bill 2021

24/03/21

13/05/21

Yes

Land Title Amendment Bill 2021

24/03/21

13/05/21

Yes

Health Service Bill 2021

24/03/21

06/05/21

Bail Legislation Amendment Bill 2021

24/03/21

Serious Sex Offenders Amendment Bill 2021

25/03/21

05/05/21

Taxation Administration Amendment Bill 2021

25/02/21

04/05/21

Mineral Royalty Amendment Bill 2021

25/02/21

06/05/21

Police Administration Amendment Bill 2021

18/02/21

25/03/21

Criminal Code Amendment Bill 2021

18/02/21

23/03/21

Justice and Other Legislation Amendment Bill 2020

22/10/20

25/03/21

Yes

Statute Law Amendment (Territory Economic Reconstruction) Bill 2021

13/05/21

Health Legislation Amendment Bill 2021

06/05/21

Youth Justice Legislation Amendment Bill 2021

05/05/21

Financial Integrity and Revenue Legislation Amendment Bill 2021

04/05/21

Appropriation (2021-2022) Bill 2021

04/05/21

Legislation information sourced 10.41 am, 26/05/2021 from: https://legislation.nt.gov.au/en/LegislationPortal/Bills/By-Session

Recent Law Society NT advocacy and activites 28/05/21 20/05/21 17/05/21 14/05/21 18/03/21 17/03/21 13/03/21 12/03/12 11/03/21

Attended Sexual Harassment & Workplace Culture Workshop Ethical Pursuit? CPD & Trivia Night with Julian Morrow Attended NT Young Lawyers Great Debate Law Society Northern Territory concern at passing of Youth Justice Amendment Act – media release Managing Change & the Future Workshops CPD Tips on Trust Money & Changes to Reporting Obligations CPD Attended LCA Director’s meeting, Brisbane Attended Conference of Law Societies, Brisbane Attended International Women’s Day Breakfast

LAW SOCIETY NT BALANCE EDITION 2|21

CL ANT

MARTY AUST PRESIDENT | CRIMINAL LAWYERS ASSOCIATION OF THE NORTHERN TERRITORY (CLANT) www.clant.org.au

SNAFU!

@Crim_Lawyers_NT

SNAFU is an old military term. Historically the acronym can be bowdlerized as ‘Situation Normal: All Fouled Up’. It is defined in the Online Oxford Dictionary as: Noun – a confused or chaotic state; a mess, Adjective – in utter confusion or chaos.

he Northern Territory Law Reform Committee’s final report into Mandatory Sentencing and Community Based Sentencing Options is currently gathering dust in an office somewhere on Level 5 of the NT Parliament Building. It was released to the Cabinet in March this year—it almost certainly states what we all already know, all forms of mandatory sentencing should be abolished in the NT. On Tuesday 11 May 2021 the NT Government passed further legislation that has the effect of broadening mandatory sentencing to include ‘mandatory pre-sentencing’. The Bill was assented to on 14 May and commenced on 15 May 2021.1

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0421 782 339

There is a belief in the community that locking up children in detention centres makes the community safe. That is false. It in fact has the potential to drastically worsen the safety of the community in the long term. If you want to stop crime you need to deal with the underlying causes of crime and address those factors. Until we do that we will see no reduction in crime, research based evidence and indeed the lived experience and history of the NT criminal jurisdiction shows this to be true. There is a belief in the community that the Court and Judicial officers do not care about youth crime. That is a false. The criminal justice system has been let down for decades by successive

CL ANT

Northern Territory Governments that have resolved to put politics ahead of the welfare of the community. Currently the criminal justice system is being left to pick up the pieces without ever being provided with the funding, infrastructure and tools to successfully roll out and transition to a therapeutic model. I have previously described the recent amendments to the Youth Justice Act and Bail Act as a dagger to the heart of the youth justice system. This is because the fundamental purpose of the original unamended Bill was to remove judicial discretion in the granting of bail for youths who have committed a ‘serious breach of bail’.2

The new laws are contrary to the recommendations of the final report of the Royal Commission into the Protection and Detention of Children in the Northern Territory. Rather than committing to a full scale roll out of reforms following the publishing of the final report the government has slowly unrolled a series of watered down reforms in a piece- meal fashion. That approach has certainly impacted upon the effectiveness of moving to a therapeutic based system. We have seen a failure of commitment to adequately fund, staff and source infrastructure to support and protect both the community and vulnerable youths at risk of committing crime in our community. CLANT was one of a handful of stakeholders who were invited to participate in two last-minute briefings with ministerial and departmental officers. This consultation process took place after the introduction and second reading of the Bill. All NGO stakeholders present urged the government to reconsider the Bill as it was bad law and did not meaningfully deal with the issue of youth offending nor protect the community. Following this consultation and in an apparent attempt to ‘safeguard’ the provision from possible legal challenge, the originally proposed s38AA was amended by the insertion of 38AA (3) which allows a court to release the child on the original bail conditions if satisfied ‘exceptional circumstances’ exist to justify bail. The legal interpretation of exceptional circumstances is well understood and a high bar to overcome.

Click here for ticket information

This new s38AA is internally inconsistent with the new s7B, of the Bail Act. The effect is a two test system for the grant of bail for the same child in the same circumstances. If a child has their bail revoked and is

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CL ANT

remanded in detention under s38AA (1), having failed to persuade the court that exceptional circumstances exist, the child can immediately make a fresh application for bail under section 7B.

This is the very regime that the government has now mandated children must enter, via section 7B (3) of the Bail Act, if they are to be provided a further grant of bail following the commission of a ‘serious breach of bail’.

Under s7B there is no requirement to satisfy the court of exceptional circumstances. The child would need to overcome a presumption against bail, having regard to the relevant matters pursuant to section 24 and 24A of the Bail Act.3 If granted bail under s7B (3) the child will have to be subject to electronic monitoring and reside in supported bail accommodation.

To date the government has made no commitment to implementing these sixteen recommendations. This leaves the youth justice system and the Courts with two current options for ‘at risk’ and vulnerable children (1) they be remanded in detention in a facility not fit for purpose; or (2) they be bailed on electronic monitoring to supported residential accommodation which is not fit for purpose.

On 4 March 2021 the Office of the Children’s Commissioner released its final report on ‘Saltbush Social Enterprises - Monitoring Visits’.4 This report scrutinised the two primary accommodation facilities for residential bail supported programs. The report was tabled in Parliament on or about 11 May 2021. The report makes critical findings regarding the facilities at both Darwin and Alice Springs, citing amongst other matters, a lack of an evidence based therapeutic framework for the treatment of children at either placement, unsuitable environments for children, lack of consistency and clarity in obligations regarding intake and admission processes, a lack of access to therapeutic and recreational programs within the facilities, a lack of clarity and consistency in the oversight and provision of case plans and educational plans, a lack of appropriately trauma informed and qualified staff at the facilities. The Children’s Commissioner made 16 recommendations to be implemented by 31 August 2021. These recommendations lay bare the shortcomings and highlight the ineffectiveness of the current regime of bail supported accommodation.

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Both options are frightening as neither have the capacity to meaningfully protect the community or rehabilitate at risk children. We remain ‘SNAFU’

1. Having been gazetted on 17 may 2021. 2. Defined as, while on bail, being charged with a prescribed offence or by way of a breach of bail through non-compliance with electronic monitoring or curfew conditions (unless the non‑compliance is trivial or technical or in exceptional circumstances). 3. Presumably being read in conjunction with the principles of section 4 of the Youth Justice Act. 4. Accessible at https://territorystories.nt.gov.au/10070/827443/0/0

Solicitors encouraged to sign up to the National Pro Bono Target The Australian Pro Bono Centre (Centre) warmly invites members of the Law Society Northern Territory to become signatories to the National Pro Bono Target (Target).

What is the Target? The Target is a voluntary and aspirational target of at least 35 hours of pro bono legal services per lawyer per year. There are currently over 230 current signatories to the Target, You can view a list of current signatories here. Signatories to the Target have collectively reported over 4.3 million hours of pro bono legal work since its commencement in 2007.

Why should you sign up to the Target? Through involvement in pro bono work, lawyers can use their unique skills to support a wide range of vulnerable individuals in our community and provide vital legal assistance to community organisations. Undertaking pro bono work can also enhance solicitors’ professional and personal development. Many solicitors are already helping others in this way. Others are keen to participate and indeed many feel an ethical professional responsibility to do so. Although the Target is entirely voluntary and unenforceable, becoming a signatory prompts involvement in pro bono work and helps each solicitor to set a goal for the amount of pro bono work they will undertake each year. Moreover, by signing up to the Target, the Centre is able to formally recognise and record that work and, in doing so, inspire other solicitors to become involved. The Centre publishes a de-identified report on pro bono hours performed by Target

signatories each year and, through a variety of publications and events, showcases a range of pro bono work and lawyers involved to recognise this dedication of time and skills and its impact. Significant professional and personal benefits ensue from using your skills to help those in need. Please see the link below to learn more and sign up.

Helpful resources to get started Last year the Centre created two guides that new Target signatories have found to be very useful resources. The first guide is the Pro Bono Guide for Individual Lawyers: a guide for lawyers interested in undertaking pro bono volunteer work in a personal capacity, outside of a formal employment program and the second guide is the Pro Bono Guide to the Climate Crisis: a guide describing the many ways in which lawyers can get involved in pro bono work to help combat the climate crisis featuring a range of case studies from around the world.

How to sign up to the Target Please click here to learn more about the Target, and to become a signatory. The Centre stands ready and willing to support you on your pro bono journey. If you have any questions, please contact the Centre by email at info@probonocentre.org.au.

LAW SOCIETY NT BALANCE EDITION 2|21

NT WL A

TRACI KEYS PRESIDENT | NORTHERN TERRITORY WOMEN LAWYERS ASSOCIATION (NTWLA) ntwomenlawyersassoc@gmail.com

@ntwomenlawyers

Women lawyers news and updates On

11 March 2021 in collaboration with Northern Territory Young Lawyers (NTYL), we held the annual International Women’s Day Breakfast. The breakfast was held at the Hilton, with our panel of speakers including: The Honourable Justice Sonia Brownhill Supreme Court of the Northern Territory

Arelene Lowry Special Counsel, Hall & Wilcox

Ben O’Loughlin Barrister, William Forster Chambers

Tamara Cole Legal Principal and Officer, Northern Land Council

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The theme for 2021 was Choose to Challenge. The panel spoke to a range of issues impacting on women in the profession including: ●● Sexual harassment ●● Barriers to joining the bar ●● Workplace flexibility and caring It was an extremely successful event that for the third year running was booked out. It is also heartening to see each year more and more men from the profession join this event and become part of the conversation. I hope that this reflects a growing realisation that barriers faced by women in the legal profession are concerns for all members of the profession.

NT WL A

I would like to thank and acknowledge the Northern Territory Government, particularly the Office of Gender Equity and Diversity for their funding for this event, that enabled the tickets for the event to be subsidised, allowing junior practitioners and law students to attend. I would also like to thank those on the steering committee, Nick Salagaras (NTYL), Taylah Cramp (NTYL), Sarah Strzelecki (former NTYL President, Nicki Petrou (NTWLA), as well as committee members from both bodies who assisted on the day. I would also like to thank the staff at the Hilton and Beth Lovell who yet again baked her incredible biscuits for all our attendees. I thank all those attended on the day, and appreciate all feedback provided. Feedback is used each year to inform the next event, which fully intended to run again in 2022. In Alice Springs we ran a Law N Bowls night also in collaboration with NTYL. This event was held at the Alice Springs Golf Club with Judge Sarah McNamara as speaker.

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NT WL A

NTWLA as part of Law Week also ran a movie night showing the film “The Meeting.” This is an award winning Irish film that provides a re‑enactment of a restorative justice mediation in relation to a serious sexual assault. The victim in this film plays herself, as does her support person Professor Marie Keenan. Professor Keenan was involved in the Australian Royal Commission into Institutional Responses to Child Sexual Abuse. The film is directed by Alan Gilsenan and produced by Tomás Hardiman. Thanks and acknowledgement go to Tomás Hardiman for giving us access to this important and powerful film. The film was available to view remotely or at a venue on 19 May 2021, with the onsite event enabling some insightful discussion afterwards. Feedback from the film was overwhelmingly positive.

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Coming up in the ensuing months will be our event deferred from last year — You Can’t Ask That. Please save Friday 2 July 2021 in your diary. This event will be held at the Supreme Court. The guests on the panel for this event will be a selection of our judiciary who are brave enough to answer your anonymous questions. So get your thinking caps on and send us those burning questions that you have always wanted to ask a judge, but were too afraid to do so (the more outrageous the better!). Send your questions to: ntwomenslawyersaccoc@gmail.com.

NT WL A

Plans are also a foot for Patron’s Drinks which will be on Friday 27 August 2021 — put it in your calendar. I hope everyone is having a great start to the dry, we hope to see you out and about soon. Regards,

Traci Keys, President

APPLICATION FOR GRANTS DUE BY FRIDAY 16 JULY 2021 Organisations and individuals are invited to make written applications to the Law Society Public Purposes Trust (LSPPT) seeking a grant.

4. To improve the quality, standard and effectiveness of legal services available to the community, or any section of it, and;

The LSPPT has limited funds to allocate to grants and invites applications for projects up to a maximum of $10,000 each. Grants will be required to be completed and the funds acquitted by June 2022.

5. To protect any members of the community using or seeking to use legal services.

The objectives of the LSPPT are: 1. To advance the education of the community and any section of it with respect to the law; 2. To advance collection, assessment and dissemination to the community and any section of it of information relating to law; 3. To improve the access to the community, and any section of it, to legal services;

Applications must be in accordance with the objectives. Information for Applicants Guide is available here: https://tinyurl.com/3j663na5 Further information: https://tinyurl.com/4krs9cu7 ADDRESS APPLICATIONS TO: The Secretary, Law Society Public Purposes Trust GPO Box 2388 Darwin NT 0801 Telephone: (08) 8981 5104 Email: LSPPT@lawsocietynt.asn.au

NT YL

NICHOLAS SALAGARAS PRESIDENT | NORTHERN TERRITORY YOUNG LAWYERS (NTYL) NTYL.Committee@gmail.com

@NTYLpage

NT Young Lawyers news and updates A

nother fantastic International Women’s Day was celebrated at the Hilton Hotel in Darwin on Thursday 11 March 2021, and with an evening at yet another great Law ‘n’ Bowls event in Alice Springs on Friday 5 March 2021. I have had the benefit of reading Traci’s article and will not repeat her fabulous report of both events, save that the NTYL supports Traci’s account of these and would like to echo her thanks to the speakers, working group members and our respective committees. It was an event well received by all in attendance and I look forward to collaborating with NTWLA again.

Approaching the Bar CPD William Forster Chambers hosted NTYL for a panel discussion with Duncan McConnel, Matthew Littlejohn and Fiona Cameron. Our speakers discussed with participants the steps

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solicitors can take to prepare for the bar and a long list of benefits that life at the bar can provide. As per most of NTYL’s CPDs in recent times, this discussion was streamed to regional members via Zoom. Without making it seem like a sales pitch (it was a sales pitch), the panellists spoke about the joys of the intellectual challenge, thrill of advocacy, self‑direction, flexibility and collegiality found at the bar. The only regret it seems from the panellists was resounding and universal in that in hindsight, they each could have taken the jump earlier. Thank you to William Forster Chambers for the drinks and nibbles, and to the panellists for such an insightful evening. NTYL looks forward to similar CPDs continuing in the years to come.

NT YL

The Great Debate – 17 May 2021

‘Like everything else, lawyers were the only winners in the pandemic.’

Thank you to Chief Justice Grant for hosting us once more and bringing just as many (more) laughs. NTYL also thanks everyone who participated and attended this event with particular thanks going to our major sponsor, Piper Ellis Lawyers.

A perfect mix of key benefits to working from home, with dedications to Kentucky Fried Chicken, self-deprecation towards lawyers and unforgettable pandemic moments such as the Texan Attorney who could not turn off the sad cat filter whilst appearing online before the District Court. The debate was held in the Darwin Supreme Court Building and streamed by AVL to the Alice Springs Supreme Court. Junior team for the affirmative: Michael Halkitis, Gigi Dadds, and Harvie Stiller. [Very young] senior team for the negative: Cassandra Ellis, Trevor Moses, and Hugh Bond. The seniors took out the people’s choice and more importantly, crowned as the champions by adjudicator, Chief Justice Michael Grant.

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Committee update NTYL welcomes Karla Goodman as the new Vice-President Regional in Alice Springs. Karla has taken over from the outgoing regional Vice‑President Sara Dobbyn, who has left the red dirt of Alice Springs for greener pastures in South Australia. NTYL thanks Sara for all her hard work throughout her time on the executive committee, particularly with her very successful Alice Springs International Women’s Day Law ‘n’ Bowls event.

Keep up to date Please make sure you have ticked that you meet the eligibility (if you meet the eligibility) to be a young lawyer on your practising certificate renewal and otherwise, like our Facebook page

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for direct updates. Details for the Darwin dry season event will be announced shortly and the Golden Gavel will be hosted in August.

NT YL The Federal Court of Australia invites practitioners and academics to attend:

WA Federal Jurisdiction CPD Seminars

Finally, please get in contact with me directly or any one of the other committee members if you feel that there are issues that the committee could or should be advocating for on behalf of young lawyers. Alternatively, we are always happy to receive assistance from anyone willing to lend a hand, so please reach out if you think you can assist us in any of our events

NTYL membership lawsoc@lawsocietynt.asn.au

Session one: 2.5 CPD points Tuesday 29 June 2021, 2.30-4.50 (AWST) FEDERAL JURISDICTION, QUESTIONS AND DISCUSSION, PRACTICAL CASE STUDIES Chair: Justice McKerracher Speakers: Chief Justice Allsop AO, Justice McKerracher, Justice McKerracher Session two: 1.5 CPD points Tuesday 13 July 2021, 5.00-6.30pm (AWST) COMMERCIAL AND CORPORATE Chair: Justice Banks-Smith Speakers: Justice Colvin and Justice Jackson Session three: 1.5 CPD points Thursday 22 July 2021, 5.00-6.30pm (AWST) AN INTRODUCTION TO NATIVE TITLE Chair: Justice Banks-Smith Speakers: Registrars Daniel and McGregor Session four: 1.5 CPD points Tuesday 27 July 2021, 5.00-6.30pm (AWST) ADMINISTRATIVE LAW, WITH A FOCUS ON MIGRATION LAW Chair: Justice Jackson Speakers: Justice Colvin and Registrar Haag Sessions accrue CPD points in substantive law and will be held in Courtroom 1, Level 7, Federal Court of Australia, 1 Victoria Avenue, Perth. The seminars will also be live‑streamed to registered participants. Joining instructions will be provided by email to those who RSVP. RSVP: walistingsandevents@fedcourt.gov.au with payment by Monday 21 June 2021. A tax receipt will be issued via email. Registration fee: $30 per session or $100 for all four sessions to be deposited: BSB 092-002 A/C 110246 Please quote this reference: WAS [insert your name]

DOWNLOAD THE FLYER HERE

LAW SOCIETY NT BALANCE EDITION 2|21

ESSAY LAURA BURFITT INTERN @ TOP END WOMEN’S LEGAL SERVICE

Discrimination against women in the Darwin Correctional Centre Author’s note: The term ‘Aboriginal’ has been used in this essay to refer to all Aboriginal and Torres Strait Islander people. This term has been chosen due to the word limit and also in recognition of the fact that many Aboriginal people in the Northern Territory dislike the use of the term ‘Indigenous’ and the acronym ‘ATSI’. When referring to victim/ survivors of domestic and family violence, both ‘victim’ and ‘survivor’ are used.

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Introduction Women are the fastest growing cohort of Australia’s prison population. The number of women in Australian prisons has increased by 43 per cent in the past 10 years.1 For Aboriginal women, this increase is even higher at 74 per cent.2 The criminogenic profile of women prisoners is significantly different from men. Perhaps the most important difference is the level of complex trauma owing to a history of domestic and family violence (DFV).3 The focus of this essay is women’s experiences of DFV and the need for specialist DFV counselling in women’s prisons. The locus of this essay is Sector 4 at the Darwin Correctional Centre (DCC), that is, the women’s area.

Building on the extensive work undertaken by the Top End Women’s Legal Service Inc. (TEWLS), this essay considers the availability of discrimination protections for women prisoners in Sector 4 with the view to advocate for an independent, specialist DFV counsellor. Part I provides an overview of the Northern Territory (NT) context, establishes the issue of DFV related trauma and its prevalence among women prisoners and outlines the work undertaken by TEWLS to date. Part II offers an alternative approach to statutory protections by considering political advocacy as a potential avenue to secure a DFV counsellor. Parts III and IV look at the discrimination protections available under NT and Commonwealth legislation respectively. Quotes included in the essay are from the women prisoners in Sector 4.

ESSAY PART I Background A. The NT Context Though women represent only six per cent of the NT prison population,4 their rate of incarceration is climbing faster than that of male prisoners.5 The NT has the highest incarceration rate in Australia with 875 prisoners per 100 000 people in the adult population.6 This is more than four times the national average of 202 per 100 000.7 In the last decade, the number of women in NT prisons has nearly doubled, with Aboriginal women significantly overrepresented.8 Aboriginal women account for 82 per cent of the NT women’s prison population,9 yet make up only 15 per cent of the NT female population.10 As of December 2020, there are 63 women incarcerated in the DCC.11 Women prisoners often have higher recidivism rates than male prisoners.12 Two-thirds of women prisoners in the NT have been previously incarcerated.13 The rates of prior incarceration for Aboriginal and non‑Indigenous women in the NT are both higher than that of non‑Indigenous men.14 This is fundamentally the result of unmet need and demonstrates the ineffectiveness, or indeed absence, of rehabilitative programs for women in prison.

We need urgent “ action to reduce the numbers of women re‑offending and returning to gaol.

”

Prisoner, Sector 4

B. DFV-related trauma Incarcerated women are some of the most marginalised, vulnerable persons in Australia. Many women prisoners have histories of poverty, housing insecurity, unemployment, poor education, poor health and significantly, violence and abuse.16 Approximately 90 per cent of women prisoners in Australia are survivors of physical, sexual or emotional violence in either childhood or adulthood and the majority have experienced multiple forms of violence.17 A history of violence and abuse is recognised as a key risk factor in women’s offending and re-offending behaviour.18 Multiple studies have demonstrated a clear correlation between incarcerated women who are survivors of violence and abuse, and substance use disorder and mental health issues.19 These factors place DFV victims at an increased risk of offending. Thus, many victims are simultaneously trapped in two cycles: the

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ESSAY

cycle of violence and the cycle of offending to try and cope with the trauma.20

There is almost no access to “ trauma counselling or any other type of psychology or psychiatry, more needs to be done to get to the core of offending... sentences [are] given to women who have suffered a life of domestic violence and finally 21 fought back...

”

Prisoner, Sector 4

There is currently no mental health or DFV counselling services available for the women prisoners in Sector 4.22 The shortage of mental health services for women in prison is widespread and well-known.23 In addition to the lack of mental health supports, the practices and conditions in prison, such as routine strip searching, often emulate the power dynamics present in violent relationships.24 This further traumatises victim prisoners, reinforcing a sense of powerlessness, lack of control, and vulnerability.25 Consecutive reports and inquiries have recognised the high prevalence of trauma among women in prison and called for counselling to be made available.26 Yet despite this longstanding recognition and persistent advocacy, women prisoners remain underserved and the excuses of ‘insufficient numbers of women’ and ‘resource constraints’ continue to be dished out.27 Women prisoners need culturally informed mental health services to address complex trauma. Without these tailored services, they continue to be at increased risk of ‘self medicating, substance abuse, unemployment, mental illness and family breakdown’,28 leading in turn to offending and re-offending.

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C. The work of TEWLS TEWLS is a community legal centre which provides free and culturally appropriate legal services to women living in the Greater Darwin region. TEWLS is the only service which provides consistent civil and family law services to women incarcerated in Sector 4 in the DCC. In 2019, TEWLS conducted Legal Health Checks (LHCs) over the course of 12 months with the female prisoners in Sector 4. Data from the LHCs was published in their final report, and identified the following: ●● 76 per cent of those who took part in the project identified as Aboriginal and Torres Strait Islander; ●● 66 per cent had been incarcerated at least once before; ●● 76 per cent of women had experienced DFV either as a child or an adult; ●● 63 per cent of those who had experienced DFV said they would talk to a specialist counsellor if one was available.29

The findings amply demonstrate why TEWLS has been advocating for a DFV specialist counsellor in Sector 4 for several years. In addition to the publication of this report, TEWLS has made a complaint to the NT Ombudsman and provided a submission to the Productivity Commission (Commonwealth),30 imploring the NT and Commonwealth Governments to set aside funding for a specialist DFV counsellor in Sector 4. So far, there has been no adequate response to these appeals.

ESSAY PART II Political advocacy In determining the best pathway to secure funding for a specialist DFV counsellor in Sector 4, it is appropriate to also consider non‑legal avenues.

A. Election commitments The current NT Labor Government, first voted in in 2016, has committed to undertake significant reform across multiple platforms including Aboriginal justice, youth justice, child protection and domestic, family and sexual violence (DFSV).31 Re‑elected in 2020, this work is ongoing. Among the 2016 election commitments are for the NT Government to: ●● work with ‘Our Watch’ to develop evidence‑based and contemporary strategies to prevent family violence;32 ●● improve health services overall in the detention system;33 and ●● support a community policing approach to working with families to reduce young people offending.34 Our Watch is leading Australia in the field of primary prevention of violence against women. Their resource

document ‘Changing the Picture’ presents a targeted primary prevention approach to address violence against Aboriginal and Torres Strait Islander women.35 Our Watch recognises that the cycle of imprisonment experienced by many Aboriginal women prisoners is a product of DFV-related trauma. Citing rehabilitation as a core principle,36 Our Watch calls for a justice reinvestment approach to address the underlying drivers of Aboriginal peoples’ incarceration including improving access to counselling services, drug and alcohol services and DFV programs for prisoners.37 Thus, if the NT Government looks to Our Watch for ‘evidence based and contemporary strategies to prevent family violence’, it will see that specialist counselling services for victims in prison is central to preventing DFV and reducing criminal offending. Further, in order to effectively work with families to reduce young people offending, it is critical to decrease the risk of family disruption. The vast majority of women in prison are mothers or primary carers.38 The damaging effects of separating mothers from their children is well‑documented.39 Children whose mothers are in prison are more likely to be in outof‑home care and therefore more likely to commit a criminal offence.40 Ensuring adequate rehabilitation programs for women in

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ESSAY

prison not only reduces their risk of reoffending but also decreases the risk of their children entering the criminal justice system.

B. Policy frameworks NT policy frameworks corresponding to these election commitments include the ‘Domestic, Family and Sexual Violence Reduction Framework 2018-2028’ and the ‘Aboriginal Justice Agreement’. Two key actions from these frameworks are: ●● Victims of DFSV receive services that provide timely, accessible, person centred, flexible and appropriate help to meet their immediate safety and recovery needs.41 ●● Design, develop and deliver trauma‑responsive, culturally competent therapeutic programs for Aboriginal prisoners that address the underlying causes of offending and reoffending, including substance misuse, DFV, and mental health.42 These actions demonstrate a clear commitment from the NT Government to providing person‑centred, trauma responsive and culturally competent programs and services which meet the recovery needs of DFV victims.

C. Recent events In February 2021, a protest was held outside NT Parliament House in response to the decision to terminate funding to one of the only women’s support programs in Sector 4. The protest resulted in the decision being rescinded and the funding secured until June 2021. The protest also prompted a statement from the NT Attorney-General, the Hon Ms Selena Uibo: ‘[The NT] Government is committed to reducing incarceration rates and providing the right programs to rehabilitate people.’43

LAW SOCIETY NT BALANCE EDITION 2|21

Given these commitments are expressed in policy and there is mounting pressure from the public, this may be the perfect time to advocate to the Attorney-General. Further, it is four years from the next election and now is an opportune time for the Government to commit to something that may be otherwise seen as controversial or contrary to the ‘hard on crime’ rhetoric espoused by political opponents.

PART III Anti-Discrimination Act 1992 (NT) The failure to provide DFV counselling to women prisoners at the DCC may be actionable as direct discrimination under the NT Anti-Discrimination Act 1992 (the ADA). The NT Anti Discrimination Commission (ADC) does not receive claims of indirect discrimination,44 nor does it handle representative complaints.45 Thus a complaint made under the NT ADA must be an individual complaint of direct discrimination.

The ADA defines discrimination as: any distinction, restriction, exclusion or preference made on the basis of an attribute that has the effect of nullifying or impairing equality of opportunity; and harassment on the basis of an attribute, in an area of activity referred to in Part 4.46

ESSAY A. Can a complaint of direct discrimination be made under the NT ADA? To be successful in making a complaint of direct discrimination under the NT ADA, the complaint must satisfy two elements. First, the discrimination must occur on the basis of one of the listed attributes under Section 19 of the Act.47 Second, the discrimination must occur in one of the identified areas of activities laid out in Section 28.48

prisoners, but there were nine such programs delivered to male prisoners.52 An alternative route may be to claim ‘failure to accommodate special need’.53 However, it is likely that the NT Government would argue under Section 19(3)(b) that the ‘cost of accommodating the special need’ outweighs ‘the number of people who would benefit’,54 given the comparably low numbers of women prisoners in the DCC.

C. Discussion and conclusion

B. Women in Sector 4 In the case of women prisoners in the DCC, the most tenable complaint would be discrimination on the basis of sex in the area of goods, services and facilities.49 The respondent in this case would be the NT Government, as the provider of correctional services. The act of discrimination would be the failure, on the part of the NT Government, to provide DFV counselling services to women prisoners in the DCC. The need for such services has been amply demonstrated and repeatedly brought to the attention of the NT Government.50 Furthermore, there is an unmistakeable gap in the availability of rehabilitation programs for men and women prisoners in the DCC.51 For example, in the 2004/05 financial year, there were no rehabilitation programs delivered to women

Whilst this complaint of direct discrimination may be easily made out, there are some considerations that must be taken into account. First, an individual complaint can only be made by a single person, hence one prisoner from Sector 4. One prisoner’s experiences may not be as persuasive as the collective experiences of multiple complainants. Moreover, it can be triggering and re-traumatising to recount past trauma and there may not be any women prisoners who are willing to share their story of DFV and carry out the complaint process. A second consideration is whether the DCC can be truly characterised as a goods, services and facilities area. A correctional centre is not identified as a form of accommodation under Section 4 of the ADA. It is unclear whether it is similarly excluded from the areas of goods, services

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ESSAY

and facilities. Third, it is important to note that discrimination complaints cannot be submitted to both the ADC and the Australian Human Rights Commission.55 A complainant must choose one agency. A final consideration is the fact that the NT ADC is currently working to modernise the ADA. Adopting a representative complaint model and specifically defining ‘services’ have both been identified as potential reforms to the Act. In light of the above considerations, it may be more appropriate to pursue a discrimination complaint under the federal legislation. Alternatively, a complaint could be delayed until the modernisation of the ADA is complete.

PART IV Sex Discrimination Act 1984 (Cth) There are two key benefits to making a complaint under the Sex Discrimination Act 1984 (Cth) (the SDA) rather than the NT ADA. The first benefit is that the complaint can be representative, focusing on the experiences of many women, rather than one individual, and thus illustrating the systemic failures to meet the needs of women prisoners in the DCC. The second benefit is that the subject of the complaint can be indirect discrimination. Indirect discrimination occurs when there are conditions, requirements or practices that unfairly disadvantage some people because of a certain attribute.56 When a complaint involves indirect discrimination, the burden of proof shifts to the discriminator who must demonstrate that the act does not constitute discrimination as per the reasonableness test laid out in Section 7B(2).57

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A. Can a complaint of indirect discrimination be made under the Sex Discrimination Act? Similar to the NT ADA, there are two elements that must be satisfied in order to make a complaint under the SDA. First, the discrimination that is the subject of the complaint must be in relation to one of the grounds outlined in Part I of the SDA.58 Second, the discrimination must occur in one of the specific areas identified in Part II of the SDA.59 The discrimination must also not be an exemption stipulated in the Act. For a complaint to be successful, it must withstand the reasonableness test in Section 7B(2). The act of indirect discrimination must not be determined to be ‘reasonable in the circumstances.’60 The ‘matters to be taken into account’ include: a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and b) the feasibility of overcoming or mitigating the disadvantage; and c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.61

B. Women in Sector 4 The indirect discrimination experienced by the women prisoners in Sector 4 is the absence of DFV counselling in the DCC. This indirect discrimination occurs on the grounds of sex as per Section 5(2) of the Act.62 This is because women are far more likely to be victims of DFV, especially women in prison. As outlined in Part I, it is estimated that up to 90 per cent of women prisoners have histories of DFV. Findings from TEWLS suggest that three quarters of women prisoners in the DCC have experienced DFV as either a child or an adult, noting DFV victimisation is often underreported.63 In

ESSAY

contrast, it is estimated that far fewer men are victims of DFV: approximately one in four Australian women have experienced violence by an intimate partner since the age of 15 years, compared to one in thirteen men.64 Similarly one in six Australian women and one in ten men have experienced abuse before the age of 15.65 The indirect discrimination is occurring in the area of ‘goods, services and facilities’.66 Section 4 of the SDA provides that services include ‘services of the kind provided by a government, a government authority or a local government body.’67 In the case of women in the DCC, the service in question is correctional services provided by the NT Government.

D. Discussion and conclusion Counterarguments put forward by the NT Government will draw on the three provisions contained in the reasonableness test. The strength of the complaint will be determined by how these counterarguments can be refuted. First, the nature and extent of the disadvantage resulting from the absence of DFV counselling is significant and reflected in the high recidivism rates of women in the NT. Untreated complex trauma compounded by re traumatisation in prison settings contributes to

the cycles of violence and offending for women prisoners. The impact of this disadvantage is far‑reaching as it extends beyond the individual to their children, leading to intergenerational offending. Second, mitigating the disadvantage is not only feasible but may offer an economic return to the NT Government. The annual cost of imprisonment in the NT is approximately $123m with a total net operating expenditure and capital cost per prisoner per day of $317.73.68 Given 63 per cent of women prisoners in Sector 4 stated that they would engage with DFV counselling, if available, and 66 per cent of women had one or more prior incarcerations, investing in an independent, specialist DFV counsellor would likely reduce women’s recidivism rates and result in a cost saving for the NT Government.69 Finally, the disadvantage experienced by the women prisoners in Sector 4 as a result of the absence of DFV counselling services manifests in their ongoing trauma, disempowerment, re-offending and family breakdown. This disadvantage is vastly disproportionate to the minor cost saving of not providing a much needed rehabilitation service.

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ESSAY

Conclusion Publishing in Balance DFV-related trauma is a key driver of women’s offending. The NT Government claims it is committed to reducing incarceration rates and providing the right programs to rehabilitate people and yet fails to provide much needed DFV counselling to women prisoners in Sector 4. This failure is actionable as direct discrimination and indirect discrimination under Territory and Commonwealth legislation respectively. However, political advocacy presents the most timely and least resource‑intensive option for securing a specialist DFV counsellor in Sector 4. This essay concludes by recommending that TEWLS advocates directly to the NT Attorney-General. If this does not produce the desired outcome, then a sex discrimination complaint to the AHRC is the best option to advocate for and represent the collective voices of the women prisoners in DCC

Endnotes page 68-69

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Have you written something you would like published in Balance that you think would be of interest to legal practitioners in the Northern Territory? Submissions from new (or old!) contributors is always welcomed. Articles should not have appeared elsewhere and must be your original work. Please email your article in MS Word format (max 2,500 words) and a good quality portrait photo to: balance@lawsocietynt.asn.au

ADMISSIONS CEREMONY

4 MAY 2021, DARWIN SUPREME COURT OF THE NORTHERN TERRITORY

James MacKnight Bowyer, Megan Louise Donahoe, Nyanciew Riek Gai, Jessica Whitney McLean, Anthea Cartwright, Abirami Rajkumar. Not pictured: Joshua Charles Bligh Begbie.

PERFECTING CIVIL PLEADINGS An overview of how to draft proper pleadings in civil cases. You will learn what materials you need in order to draft a statement of claim, defence or reply; what steps to take before you begin to prepare the pleading; what the pleading rules require, where you can find precedents for pleadings and the value in the appropriate cases of Scott Schedules.

Presented by The Honourable Acting Justice Dean Mildren Tuesday 6 July 2021, 1-2 pm REINT Training Room, 2/6 Lindsay St, Darwin NT, 0800 $99.00 including GST Earn 1 CPD point in Professional Skills in Legal Practice (CC). Attend in person or via Zoom. Information and registration: www.lawsocietynt.asn.au

LAW SOCIETY NT BALANCE EDITION 2|21

HE ALTH & WELLBEING

PETRIS LAPIS B COM LLB LLM FIPA FFA AUTHOR PRESENTER DIRECTOR | PETRIS LAPIS PT Y LTD petris@petrislapis.com

www.petrislapis.com

0419 334 204

Do you have the mindset for success? H

ave you ever worked with someone who believed they were better than others, shifted the blame when things went wrong and would not listen to other people’s ideas? If so, you have worked with someone with a ‘fixed mindset’. On the other hand, have you ever worked with someone who was open to hearing other people’s ideas, saw mistakes as learning opportunities, worked hard, focused on teamwork, and could cope with setbacks and keep going until they succeeded? If so, you have worked with someone who has a ‘growth mindset’. Dr Carol Dweck researches the difference between fixed and growth mindsets and the impacts they have upon life and success. She has found that a growth mindset helps you to become a lifelong learner able to adopt new skills as needed and to thrive in even the most

LAW SOCIETY NT BALANCE EDITION 2|21

challenging times of your life and your career. If you adopt a fixed mindset, you will spend your life and career avoiding challenges and giving up when things get hard. These mindsets relate to our personal lives too. Ever dated someone who expected you to be perfectly compatible with them, to give them total uncritical acceptance and to be a mind reader? If so, they had a fixed mindset and probably got upset if you disagreed with them or sought constant reassurance that you still loved them. If your partner has a growth mindset, on the other hand, they understand we are all flawed and can have a good relationship regardless, know the value of communication and are supportive of your growth and learning.

HE ALTH & WELLBEING

Given what you have read so far, do you believe you have a fixed or a growth mindset or do you change depending on the situation? The answer is usually a mix of both. You might have a growth mindset when your manager gives you feedback at work and a fixed mindset when your partner gives you feedback on how to stack the dishwasher at home.

How do you encourage a growth mindset in your workplace so that everyone can thrive?

We all start out with a growth mindset. Babies and toddlers try and fail again and again. They keep going until they master skills such as talking and walking without being self-conscious or frightened of failure. This changes around the age of four when we get a sense of self. One of the things that moves you to one mindset or the other is the way you are praised. If you are praised for your natural talent and ability, you will move towards a fixed mindset. If you are praised for the effort you put in, your attitude, or the way you approached a task, you will move towards a growth mindset. The same thing happens in the workforce. If you praise the way someone went about completing a task, they will want to replicate that same effort on the next task and will have a growth mindset towards it. If you praise advice for being 100 per cent perfect, the team member will want to replicate that perfection and will move towards a fixed mindset. Time will be wasted perfecting tasks that could have been spent completing other tasks.

●● Value learning and perseverance over genius

Organisations can have a fixed or a growth mindset which usually flows from its leader. A leader with a fixed mindset takes credit for other people’s work, won’t admit mistakes, will be surrounded by leader pleasers, lax ethics and no-one owning mistakes when they occur. It will be each person for their own to prove how good they are and if you disagree with the leader you will be made to believe it is ‘because you are not just bright enough to get it’. A leader with a growth mindset can admit when they are wrong and believe in growing their teams and asking for feedback, ideas and help.

You can do these things: ●● Present skills as learnable (rather than just for those with talent)

●● Give feedback about effort and improvement (not perfect outcomes) ●● Ensure senior staff are available to others as a learning resource (the ability and willingness to ask for help when it is needed is a sign of a growth mindset)

How can you have a growth mindset more often in your own life? Start monitoring what is going on during your working day. When things happen, instead of judging yourself, ask yourself questions such as, ‘What can I learn from this?’, ‘How can I improve?’ or ‘How can I help my manager or team do better?’ A fun way recommended by therapists is to give your fixed mindset a name. Mine is ‘Boris’ and when the fixed mindset makes a mistake, you have a conversation with it. Remind your mindset that you are changing from a ‘judge and be judged’ framework to a ‘learn and help learn’ framework.

A growth mindset can make a remarkable difference to your day and your workplace

LAW SOCIETY NT BALANCE EDITION 2|21

TECHNOLOGY LEWIS SIMPSON LAW INTERN, JURIS DOCTOR STUDENT | WISELAW info@wiselaw.com.au @WiseLaw3

www.wiselaw.com.au

0447 534 023

@1WiseLaw

Taking out fear and introducing fair: A human rights report on Australia’s approach to technology, regulation and artificial intelligence

The new age of technological developments generate vast amounts of opportunity for society, where individuals, the public and private sector all reap the social and economic benefits. Technological determinism is ever prevalent where advancements are increasingly affecting the worlds political, economic, social and cultural structures. New technology, without a doubt, can and will improve our lives. However, when in the wrong hands, or when poorly designed it will have a detrimental impact. The development of Artificial Intelligence (“AI”) can be exclusionary in nature, as it is not accessible to the less privileged or people with different abilities and/or disability. Unaccountable use of AI encourages an abuse of power by government and corporations, and it is

LAW SOCIETY NT BALANCE EDITION 2|21

more important than ever that technology is used in a responsible way. Systems must be put in place that safeguard the Australian community. The Australian Human Rights Commission (AHRC) highlights how human rights are universal and should be at the forefront of consideration when developing and using new technologies. In its recent report ‘Human Rights and Technology’ the AHRC has published a four‑part report that highlights the importance of human rights being at the centre of Australia’s approach to technology. The Commission

TECHNOLOGY

has made 38 recommendations to government, private sector and individuals surrounding the development and use of technology. The Commission recommends that there should be stronger laws governing the regulatory system to ensure AI-informed decision-making is ‘lawful, transparent, explainable, responsible, and subject to appropriate human oversight, review and intervention’. The aim is to educate Australians about the opportunities and threats posed by new and emerging technologies. The AHRC includes a template for reform that focuses on human rights protection that informs the government and private sectors of what accountable AI decision entails.

Succinct breakdown of the report

National strategy on new and emerging technologies The Commission recommends that the Australian Government embrace technological innovation that upholds its true liberal democratic values. This can be done through implementing a national strategy on new and emerging technologies that puts human rights are the centre of its approach.

AI is changing the way decisions are made by the government and private sector The report highlights how AI is impacting decision making by government and the private sector— and calls for accountability in regard to human rights and the use of technology. The regulations should complement and support existing legal regulation to generate better AI-informed decision-making systems through a standardised use of technology. The Commission demands a better monitor of algorithm bias, unfairness and discrimination, stating that government must ensure that anti-discrimination laws are created (and observed) in the context of AI-informed decision making.

Supporting effective regulation Regulation must focus on diversity, and an independent statutory authority is recommended to focus on risk of harm. This can be done through the establishment of an AI Safety Commissioner to provide expertise on the development and use of AI. If a Safety Commission is created it will provide capacity for regulators to improve through education, training and targeted advice to parliament, corporation and policy makers.

Improved accessibility of goods, services and facilities for the disabled There is a concern surrounding the accessibility of Digital Communication Technologies for people with disability. The Commission recommends that good technology design will enable the participation of people with disability, where poorly designed systems will cause significant harm. The aim is to improve functional accessibility through creating a new disability standard which will improve the accessibility and use technology to those who are most vulnerable.

The full document can be accessed at: https://tech.humanrights.gov.au/downloads

On other things: SCAM ACTIVITY INCREASES DURING 2020 On 7 June 2021, the Australian Competition & Consumer Commission published its latest targeting scams activity report which can be read on their website here: https://www.accc.gov.au/publications INCREASE IN SCAMS FROM 2019 TO 2020 DUE TO THE COVID-19 PANDEMIC Of note: + 96% classified scams + 52% online shopping scams + 74% remote access scams + 178% threat-based scams + 2,000% health/medical scams

= $5.5m = $7.4m = $8.4m = $11.8m = $3.9m

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CAREERS

JASON ELIAS BA LLB FRCSA CHIEF EXECUTIVE OFFICER | ELIAS RECRUITMENT

Australian Recruitment Leader of the Year 2020 info@eliasrecruitment (02) 9555 5711

www.eliasrecruitment.com

@eliasrecruit

@eliasrecruitment

Getting your CV ready Four easy steps

study by The Ladders found that professional recruiters give most resumes an initial 6 second review to look at key details before deciding whether to contact you for an interview. During that 6 second window recruiters are quickly scanning: ●● Name ●● Current title and employer ●● Current position start date—and if you are still employed ●● Previous employers’, title, company and employment dates ●● Admission date (years of Post qualification experience (PQE) ●● Education (and awards e.g. Dean’s List or Average marks—esp in earlier years)

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Clearly lay out your CV so that visually you are giving the recruiter exactly what they are looking for as quickly as possible to increase your chance of scoring an interview. Avoid fancy fonts, boxes and unnecessary distractions. Here is how to spruce up your resume in four easy steps:

1. Highlight your accomplishments, recent projects, & publications Lead with your accomplishments, especially if you have recent project experience relevant to the role for which you are applying. Include any awards, commendations or industry publications – highlight your expertise in an area relevant to that role and you will stand out from other applicants.

CAREERS 2. Don’t forget the selection criteria Selection criterias are listed for a reason, so include them in your application. Wherever possible, tailor your CV to reflect the specified criteria. Note relevant skills or experience, and focus on demonstrating achievements in your recent position that match the role requirements. Leave any material which may be the basis of discrimination (unconscious or otherwise)—for example, date of birth, race, marital status, sexuality or religion.

3. Make it an easy read The worst resumes are a nightmare to read. Poor formatting, too much text, an absence of headings, or lack of clarity around what you did in each role make for a quick trip to the bin. As a rough guide, ask yourself, can your CV be read in 2 minutes or less? Would a total stranger understand what value you brought to each role, your strengths and your achievements? If you’re unsure, run your resume by friends or family who are less familiar with your career or industry, and ask them to describe what you do based on your resume. In terms of length, aim for 2 pages for a junior lawyer and up to 4 for a more senior lawyer. Provide more detail on more recent roles, If you have 10 years PQE we don’t need much about your pre-legal work at McDonalds. Mention it of course (McDonalds gives great training) but prioritise the more relevant positions. Also even if you look like George Clooney or Scarlett Johansson—a photo on your CV is never appropriate.

4. Explain any absences or short stints—and don’t embellish Red flags pop up for unexplained leaves of absence and unusually short placements in a series of roles. While innocuous, these resume gaps may suggest underlying issues with colleagues or managers or an inability to focus and settle into a role. If you took extended time off, be up front about the reason – whether it was a career break to assist with an ill family member or a business venture or even further study, it’s best to tackle the issue rather than allow employers to come to their own conclusions and prematurely rule you out.

Whatever you do, don’t lie. Not only does it damage your credibility with your prospective employer, it may affect your overall reputation with future employers

Are you hiring? We can assist. If you would like to advertise a job vacancy free of charge in the The Practitioner fortnightly e-newsletter (and on the Society’s website), please forward the position description and any accompanying documents via email to lawsoc@lawsocietynt.asn.au

LAW SOCIETY NT BALANCE EDITION 2|21

INSUR ANCE

RENEE STEVENS LEGAL RISK MANAGER | LAWCOVER

practicesupportservices@lawcover.com.au 1800 650 748 Switch: (02) 9264 8855

www.lawcover.com.au

The importance of effective supervision: Managing the risks S

upervision of staff is an integral part of running any law practice with employees. Even though good supervision is so important, it is a skill that we are rarely taught. Our style of supervision will often be emulated from our own experiences with supervision, for better or worse. The lack of adequate supervision of staff has been the source of a substantial number of claims against law firms over the years. Many of those claims result from negligent drafting or a failure by inexperienced and under-supervised solicitors to properly advise clients.

When supervision is lacking In Victorian Legal Services Commissioner v Olayemi (Legal Practice) [2019] VCAT 1283, a young solicitor in a busy immigration law practice had

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the carriage of a nomination and visa application for a client. Upon receiving a refusal letter and decision record from the Department of Immigration and Border Protection, he realised that he had made a mistake in the visa application. The mistake related to the incorrect selection from a drop-down menu as part of the online application which, according to the evidence, was an easy mistake to make but fatal to the application. Instead of sending the client the original refusal letter and decision record, the solicitor panicked and falsified the documents, creating fictitious reasons to cover up the mistake, which he then sent to the client. Only when the client accused the law practice of fabricating the documents did the solicitor confess the truth to his principal.

INSUR ANCE

In the disciplinary proceedings which followed (and which resulted in a finding of professional misconduct) the principal gave evidence in support of his employed solicitor. In the principal’s view, the solicitor’s reaction to the visa application refusal spoke more about the pressures that he was under than it did about his character. The principal admitted that there were failures in the work environment. He admitted that he had been placing unreasonable pressure upon the solicitor without realising the stress that the solicitor was under or that his supervision was lacking.

Practice tips for effective supervision

These tips are not exhaustive. However, taking the time to review the effectiveness of our supervision practices and recognising areas for improvement can help identify potential areas of risk and create a better working experience for everyone

●● Explain tasks in detail and set clear time frames and expectations. ●● Conduct scheduled file reviews and monitor key dates. ●● Meet on a regular basis to discuss workloads and workflow. ●● Implement systems to monitor communications such as incoming and outgoing emails and mail. ●● Use checklists to prevent oversights and provide reminders about what needs to happen next. ●● Provide frequent, balanced and specific feedback. ●● Invest in training to improve knowledge, skills and personal development. ●● Adjust your level of supervision for different staff members depending on level of experience, personality and role in your practice.

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FINANCE

ANDREW PROEBSTL CHIEF EXECUTIVE | LEGALSUPER

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

Federal budget and super The Federal budget contained a number of important announcements in relation to superannuation

number of changes and reforms relevant to superannuation were announced by Treasurer Josh Frydenberg in the 2021/22 Federal Budget.

Importantly, each of the announced changes are proposed to commence from 1 July 2022 and need to be legislated before they take effect and therefore give rise to no changes in the near term.

Key changes The key superannuation changes are: 1. Scrapping the $450 per month earnings threshold for workers to be eligible for the superannuation guarantee. 2. Expanding the First Home Super Saver Scheme (FHSS) to increase the maximum withdrawal from $30 000 to $50 000. 3. Extending eligibility for the downsizer scheme to individuals aged 60—from the previous age of 65—allowing people to make a one‑off post tax contribution to their super worth up to $300 000 after selling their home. 4. Repealing the work test for voluntary non‑concessional and salary sacrificed contributions to super for those aged 67 to 74 years. Individuals aged 67 to 74 years will still have to meet the work test to make personal deductible contributions. The current work test requires Australians aged 67 to 74 to work for 40 hours within 30 consecutive days during a financial year to make voluntary contributions to their super (both concessional and non‑concessional).

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FINANCE Removal of the $450 monthly income threshold The $450 monthly threshold prevents an estimated 300 000 low paid workers, 63 per cent of whom are female, from receiving mandatory employer super contributions. Removal of this threshold means this cohort of workers will from 1 July 2022 be eligible to receive superannuation guarantee (SG) payments from their employer.

New threshold for First Home Super Saver Scheme The Government proposes to increase to $50 000 the maximum amount of voluntary contributions aspiring home buyers can take from the First Home Super Saver Scheme. This scheme allows people to make voluntary concessional (before-tax) and non-concessional (after-tax) contributions to superannuation to save for their first home. At present these contributions are capped at $15 000 a year and $30 000 in total. Under the proposed changes, contributions to a super fund will be allowed by salary sacrifice up to a maximum of $50 000. Where there is a couple involved, both individuals will be able to utilise their caps up to a maximum of $100 000. This scheme applies only to voluntary contributions. First home buyers cannot withdraw any part of the compulsory component of their superannuation savings that have been contributed by their employer.

Changes to the Downsizer Scheme This change to an existing measure will allow those nearing retirement who downsize their family home to contribute $300 000 to superannuation ($600 000 per couple) at age 60, down from 65. Such contributions will be classified as a nonconcessional (post-tax) contribution and are allowed in addition to existing super rules and caps (i.e. it is not counted towards the caps) including the total super balance cap of $1.6m (due to rise to $1.7m on 1 July 2021). The measure is exempt from the work test, but it is not exempt from the $1.6m (also rising to $1.7m on 1 July 2021) transfer balance cap (which limits the amount of money individuals can put into a pension phase account where investment earnings are tax free).

Work test abolished for those aged between 67 and 74 years The government intends to abolish the work test, which requires those aged between 67 and 74 to be gainfully employed for at least 40 hours over 30 consecutive days during a financial year before concessional or non-concessional superannuation contributions can be made. This will enable individuals aged 67 to 74 years (inclusive) to make or receive non-concessional (including under the bring-forward rule) or salary sacrifice superannuation contributions without meeting the work test, subject to existing contribution caps, however they will still have to meet the work test to make personal deductible contributions. The existing $1.6m cap on lifetime superannuation contributions will continue to apply (increasing to $1.7m from 1 July 2021). The annual concessional and non-concessional caps will also continue to apply.

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FINANCE Other super-related announcements The Government will further invest in supporting stronger consumer outcomes for super members by providing $9.6m over four years to the Australian Prudential Regulation Authority (APRA) and $1.6m over four years to Super Consumers Australia to enhance supervision, transparency and enforcement. In addition to superannuation measures in this year’s Federal Budget, there were also changes impacting social security, aged care and taxation.

Previous Budget measures scheduled to come into effect on 1 July 2021 The Your Future Your Super measures proposed in last October’s budget—which include a requirement to staple individuals to their current superannuation fund and apply performance testing to many funds—and at this time remain scheduled to come into effect on 1 July 2021. However, as the legislation is still before Parliament, the final scope of the proposed reforms and their implications and dates for implementation is not yet known.

New thresholds on 1 July 2021 for some existing measures While not part of the 2021 Federal Budget announcements, it is worth noting that the thresholds for a number of existing super measures will increase from 1 July 2021. These include increases to the amount individuals can voluntarily contribute to super through either salary sacrifice or by making a non-concessional contribution.

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The key super rates and thresholds provide that for 2021/22: ●● the concessional contributions cap is $27 500, up from $25 000; ●● the non-concessional contributions cap is $110 000, up from $100 000; ●● the general transfer balance cap is $1.7m, up from $1.6m.

Superannuation Guarantee While there is no specific mention in the budget of the SG increase schedule, the legislated superannuation guarantee increase of 0.5 per cent to 10 per cent is set to apply from 1 July 2021.

We’re here to help

If you have questions about these proposed changes, and how they could affect you, our Client Service Managers are available to help. We remain dedicated to support you so that you are able to make the most of your future.

If you have any questions or need assistance, please contact us by calling 1800 060 312 Monday to Friday between 8 am and 8 pm (AEST) or emailing mail@legalsuper.com.au

FINANCE

Legal Super Pty Ltd ABN 37 004 455 789 is the Trustee of legalsuper ABN 60 346 078 879 and holds Australian Financial Services Licence No. 246315 under the Corporations Act 2001. The information contained in this document is of a general nature only and does not take into account your objectives, financial situation or needs. You should therefore consider the appropriateness of the information and obtain and read the relevant legalsuper Product Disclosure Statement (available at legalsuper.com.au or by calling 1800 060 312) before making any decision in relation to legalsuper. Past performance is not a guide to future performance. ANDREW PROEBSTL is Chief Executive of legalsuper, Australia’s industry super fund for the legal community. He can be contacted on telephone (03) 9602 0101 or via aproebstl@legalsuper.com.au.

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CA SE NOTES - SUPREME COURT

CAMERON FORD BARRISTER, ARBITRATOR, ADJUDICATOR, MEDIATOR

www.cameron-ford.com

Supreme Court judgments CIVIL APPEALS Rehearing; Vitiating error required In BJEK Pty Ltd v Henbury Cattle Co Pty Ltd & Ors [2021] NTCA 1 [7]-[8], the Court of Appeal (Grant CJ, Blokland J and Mildren AJ) held that, although the Supreme Court Act 1979 (NT) does not specify the type of appeal under s51, the assumption has always been that the appeal is an appeal by way of rehearing on a question of law or fact or both. The clear statutory implication is that vitiating error by the trial Judge must be established before the Court will interfere.

CONVERSION Relational context relevant In BJEK Pty Ltd v Henbury Cattle Co Pty Ltd & Ors [2021] NTCA 1, the Court of Appeal (Grant CJ, Blokland J and Mildren AJ) held that the question whether conversion has occurred requires an understanding of the practical and commercial context of the relationship between the parties to determine whether the actions were repugnant to the owner’s rights of ownership assessed in the context of the realistic, practical and honest conduct of the business in question. Being in possession of another’s goods without authority does not, without more, amount to conversion. The

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essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession. An invitation to the owner to come and retrieve the goods may be worthless and disingenuous given the logistical, geographical and situational difficulties of collecting the goods.

CRIMINAL APPEALS Number of notices of appeal In Lorenzetti v Brennan [2021] NTSCFC 3, the Full Court (Southwood, Kelly JJ and Riley AJ) held that there must be a separate notice of appeal from each sentence regardless of the number of complaints on which the sentences were imposed. The court recommended Parliament amend the legislation to permit one notice per complaint.

EVIDENCE Briginshaw not applicable to quantum In BJEK Pty Ltd v Henbury Cattle Co Pty Ltd & Ors [2021] NTCA 1, the Court of Appeal (Grant CJ, Blokland J and Mildren AJ) held that the Briginshaw test of clear or cogent proof did not apply to determination of quantum after it had been applied to establish liability. It is not unusual that an assessment of quantum is inferential, or that circumstantial evidence may be used to

CA SE NOTES - SUPREME COURT

prove a matter on the balance of probabilities

EVIDENCE Flight as an admission In BJEK Pty Ltd v Henbury Cattle Co Pty Ltd & Ors [2021] NTCA 1 [57][58], the Court of Appeal (Grant CJ, Blokland J and Mildren AJ) held that, for flight to be taken as an admission, the reason for the flight must relate to a material issue in the proceeding and the flight must not be explicable on a basis other than a consciousness of guilt. In civil proceedings, the test is not proof beyond reasonable doubt, but given the seriousness of the allegation, the facts must nevertheless be proved to the civil standard in accordance with Briginshaw. In this case, a car passenger’s applying of the handbrake was analysed as a flight.

SENTENCING Aggravated robbery and supply In Fuller v The Queen [2021] NTCCA 1, the Court of Criminal Appeal (Grant CJ, Southwood and Brownhill JJ) reduce a sentence for aggravated robbery from three years and nine months to two years and eight months’ imprisonment suspended after 18 months, giving a 33% discount for cooperation with the authorities and a plea. The offending was at the lower end, the assault was quick and without physical contact.

SENTENCING

Aggravated robbery, less serious

DVO repeat offences and suspending

In AK v The Queen [2021] NTCCA 4, the Court of Criminal Appeal (Blokland, Barr and Brownhill JJ) reduced a sentence for aggravated robbery from three years to 18 months, and for contempt of court from nine months to six months due to the offences being of a less serious nature, the age and troubled background of the 16 year old prisoner, and for parity with co‑offenders. The court considered the three sources of power for sentencing youths and the judicial discretion in determining which to apply.

In Lorenzetti v Brennan [2021] NTSCFC 3, the Full Court (Southwood, Kelly JJ and Riley AJ) held that the plain meaning of s 121(5) of the Domestic and Family Violence Act is to prohibit the court from suspending any part of a sentence imposed for a second or subsequent offence of breaching a DVO. However, the section is not contravened if the required period for the DVO sentences are directed to be served before the suspension.

SENTENCING DVO repeat offences and totality In Lorenzetti v Brennan [2021] NTSCFC 3, the Full Court (Southwood, Kelly JJ and Riley AJ) held that the principle of totality may be served when sentencing for second and subsequent breaches of DVOs and other offences (which s121(7) of the Domestic and Family Violence Act prohibits being made concurrent) by making some concurrency in the sentences for the other offences or by reducing the DVO sentences to the lower end of the range. It is not permissible to lower the sentences below what would be appropriate for the objective seriousness of the particular offending.

SENTENCING Home detention after suspended sentence In R v Bennett [2021] NTCCA 2, the Court of Criminal Appeal (Grant CJ, Southwood and Brownhill JJ) held that the court has power under s44(1) of the Sentencing Act (NT) to suspend a sentence wholly or partially upon the offender becoming subject to and bound by a home detention order.

SENTENCING Proof of facts contrary to agreed facts In Duong v The Queen [2021] NTCCA 3 [50]-[64]; [85]-[92], the Court of Criminal Appeal (Southwood and Kelly JJ and Hiley AJ) held that, if accused wish to be sentenced on a different basis from the agreed facts, they must tender evidence, which the judge

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CA SE NOTES - SUPREME COURT

may disbelieve and sentence on the agreed facts. The court is not required to sentence according to the accused’s assertions if it rejects those assertions.

SENTENCING Relevance of deportation In R v Calica [2021] NTSCFC 2, a five member Full Court (Grant CJ, Southwood, Kelly, Blokland and Barr JJ) held that there are three categories of cases where the impact of the prospect of deportation has been considered—where the sentence is crafted to avoid the prospect, where the prospect is considered in setting a non‑parole period, and where it is considered in reducing the head sentence. After an exhaustive review of often conflicting Australian authorities, the court held at [161] that, in the Territory, (1) the court may not take into account the prospect of deportation to craft a sentence to avoid the prospect; (2) prospect of deportation is not generally relevant to fixing a non-parole period; and (3) the prospect of hardship suffered as a result of deportation, and loss of the opportunity to settle permanently in Australia may, in appropriate circumstances, be taken into account in mitigation of sentence, provided the likelihood of deportation and its hardship to the offender are established by evidence as more than speculative.

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SENTENCING

SENTENCING APPEALS

Supply 28kg cannabis

Facts appellable

In Duong v The Queen [2021] NTCCA 3 [10]-[31]; [93]-[106], the Court of Criminal Appeal (Southwood and Kelly JJ and Hiley AJ) upheld a sentence of five years imprisonment (reduced from six years for a plea), suspended after three years for the supply of 28.3 kg of cannabis, around 56 times the commercial threshold. Attention should be paid to the offender’s actions in the commission of the offence rather than to a characterisation such as a ‘courier’. Here the accused paid for a hire car, drove the drugs through two states to the Territory, persisted after an accident, and played a part in their distribution.

In Duong v The Queen [2021] NTCCA 3 [10]-[31], the Court of Criminal Appeal (Southwood and Kelly JJ and Hiley AJ) held that sentencing appeals under s 411(4) of the Criminal Code (NT) are a full appeals on fact and law form the exercise of a discretion, rather than appeals in the strict sense as in other jurisdictions. A finding of fact is appellable without it having to amount to or approach an error of law

SENTENCING Youths’ priors In R v JHW [2021] NTSCFC 1, the Full Court (Grant CJ, Southwood and Kelly JJ) held that s136 of the Youth Justice Act (NT) precludes the Supreme Court from taking into account an offence of which a youth was found guilty but not convicted, if the offender is an adult when sentenced by the Supreme Court. The Supreme Court is not precluded where the offender is still a youth and the court is utilising the provisions of the Youth Justice Act, or of that Act and the Sentencing Act.

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 Mother’s “fixed” but unfounded allegations of sexual abuse by father were damaging to the children In Syms [2021] FamCAFC 38 (26 March 2021) the Full Court (Aldridge, Watts & Austin JJ) heard an appeal where a mother unsuccessfully argued that her 3 children were at unacceptable risk of sexual abuse by their father, the Court finding that the mother’s fixed but unfounded views posed an unacceptable risk of emotional harm and that the children live with the father. The mother’s time was to be supervised after a four month moratorium. Such supervision was to continue at the discretion of the father. The Full Court said (from [93]): “… [H]er Honour was not satisfied that the children were describing actual events of abuse. … [94] … [I]t was found that the allegations … [by the children to the mother] ‘began a course of action akin to a mission to establish that the children had been sexually abused by the father’ (at [170]). ( … )

[106] The single expert … considered that the probability of the father being a sexual abuser was ‘fairly low down the list’. There is no reason whatsoever to consider that her Honour did not have regard to … the entirety of the single expert’s evidence.” As to the risk posed to the children by the mother, the Full Court said (at [116]): “… [T]he most relevant time for considering whether the mother posed a risk of emotional harm ... due to her fixed belief that they had been sexually abused … was at the hearing before the primary judge. …” As to the father’s discretion to determine when supervision would cease, the Full Court said (at [140]): “We do not accept that the order is … for permanent supervision. The primary judge expected that the father would act reasonably, but if he did not, the mother could return to Court to … lift the supervision requirement. In doing so, she would not be bound by the rule in Rice and Asplund [1978] FamCA 84 because the primary judge expressly envisaged such an application. …” The mother lost her appeal and was ordered to pay costs.

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CA SE NOTES - FAMILY L AW PROPERTY “Wholesale injunction” restraining wife from continuing all proceedings in Singapore set aside In Obannon & Scarffe [2021] FamCAFC 33 (10 March 2021) the Full Court (Kent, Watts & Austin JJ) heard the wife’s appeal from an order that restrained her from continuing all proceedings in the Family Justice Courts in Singapore. After restating Voth v Manildra Flour Mills Pty Ltd [1990] HCA 5 and Henry [1996] HCA 51 (at 592–593), the Full Court said (from [106]): “The primary judge erred in principle … by ignoring or overlooking that the parties had resolved that the Singapore proceedings would continue with respect to [divorce, spousal maintenance, parenting issues and child support] … [107] The authorities make clear that it is not the requirement to strictly compare the two forums … to decide which is the more appropriate forum. Here, the primary judge … appears to consider the central issue to be a direct comparison of the two countries’ family law procedures. (…) [110] One legitimate purpose of comparing the law in each jurisdiction is to identify the existence of any juridical advantage to a party. … However it is not a legitimate purpose of such a comparison

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for a trial judge to thereby assess the comparative merits of the manner in which a case is determined as between the local and foreign tribunal. In this case the primary judge appears to give emphasis to his conclusions about the merits of Australian law in the manner in which property cases are determined, as compared to Singapore, rather than confining the consideration to one of effective dealing with the dispute arising from the breakdown of the parties’ marriage involving divorce, parenting issues, spousal maintenance and child support. We consider that to be an error (…) [112] … [I]it is clear from the authorities that the test of whether the same controversy is before each Court is not one that requires complete satisfaction that every aspect of the litigation is identical.”

PROPERTY Bankruptcy – Just and equitable settlement identifiable without husband’s participation or disclosure In Hicks & Trustee of the Bankrupt Estate of Hicks [2021] FamCAFC 19 (18 February 2021) the Full Court (Ryan, Aldridge & Kent JJ) heard an appeal by a trustee in bankruptcy from property adjustment orders made by Loughnan J in the absence of the husband. The orders were such that the husband received $651 747, being

the amount required to satisfy the husband’s proven debts in bankruptcy. Addressing the justice and equity of the orders, the Full Court said (from [58]): “ … [H]is Honour considered Commissioner of Taxation & Worsnop and Anor [2009] FamCAFC 4 and … other [Full Court] decisions … in expressing the conclusion that the creditors, represented by the trustee, do not have priority over the wife ( … ) [89] … [F]ailure by parties to provide credible evidence relating to aspects of their financial affairs does not entitle the Court to dismiss applications or to relieve the Court of the responsibility of applying the provisions of the Act … [90] In this case the primary judge recorded that the husband … had elected not to take part [in the proceedings] … and his Honour was satisfied that … it was appropriate to make orders on an undefended basis as against the husband ( … ) [116] ... [T]he primary judge was plainly cognisant of the … cases as to the approach to attributing responsibility as between married parties for acquired debts in the s79 process. It bears some emphasis that … [the] authorities identified guidelines for the exercise of the s79 discretion, and not binding principles constraining that exercise. ( … )

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[119] … [I]t was within the ambit of a legitimate exercise of s79 discretion for the primary judge to deal with the husband’s debts in the manner in which his Honour did. …” The Full Court dismissed the trustee’s appeal but no order was made as to costs.

CHILDREN Hague Abduction Convention – Father found to have consented to mother’s wrongful overseas removal of child In Commissioner of Police for State Central Authority of South Australia & Garnett [2021] FamCA 86 (3 March 2021) Williams J heard an application by the Central Authority of South Australia for the return of a 10 year old child to the UK pursuant to the Family Law (Child Abduction Convention) Regulations 1986. The mother had removed the child from the UK but said that when the father found her packing suitcases, she informed him she wished to return to Australia, whereupon the father handed the mother the Australian passports for herself and the child and assisted her with her bags into a taxi. The mother and the child travelled to Australia that day. Williams J found that X was habitually resident in the UK and that the father was exercising rights of custody at the time of removal ([80]).

After citing Wenceslas & DirectorGeneral, Department of Community Services [2007] FamCA 398 Williams J said (from [87]):

Williams J exercised her discretion not to return X to the UK and dismissed the application of the State Central Authority.

“ … Consent has to arise before the act of removal or retention (…)

FINANCIAL AGREEMENTS

[104] The father’s own evidence suggests … that he was acutely aware that the mother intended to leave the UK with X … and that notwithstanding the mother’s repeated intention of travelling to Australia with X, he handed her the passports which would enable her to do so. … … I do not accept that handing over passports … does not amount to consent for X to leave the country. … [105] … It is not a situation where the father was advised by the mother for the first time in the heat of the moment … that the mother wished to end the relationship and return to Australia. [106] The father’s … own evidence supports the contention that he knew implicitly and unambiguously that the mother intended to fly with the children and that is why she required the passports. ( … ) [109] I am satisfied that the conduct of the father, in handing the child’s passport to the mother, when he knew she intended to travel to Australia with the child, is clear and cogent evidence of the father’s real and unequivocal consent to X departing the UK and travelling to Australia.”

That the wife was advised against signing the BFA, but did so anyway, may be an “indicium of undue influence” as held in Thorne v Kennedy [2021] FamCAFC 9 In Beroni & Corelli [2021] FamCAFC 9 (10 February 2021) the Full Court (Strickland, Aldridge & Kent JJ) dismissed with costs the husband’s appeal from Tree J’s decision in Corelli & Beroni [2019] FamCA 911 where a hairdresser’s testimony corroborated the wife’s case that she was not proficient in English when she signed a Part VIIIAB financial agreement, the Court setting it aside for unconscionability and undue influence. The agreement was signed a few months before the wife was granted a spouse visa. While the agreement and advice provided to the wife was in English, the Court accepted that the wife did not understand the nature of what she signed; the content of the agreement; nor the advice provided to her, despite the wife having not called evidence from her then solicitor. The Full Court said (from [31]): “It is the husband’s contention that … in circumstances where the wife’s solicitor advised her

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CA SE NOTES - FAMILY L AW

against signing the BFA …, the wife acted on her own free will. (…) [35] ( … ) Given the 30 minute duration of the meeting along with the wife’s lack of proficiency in English, any explanation given to the wife would have been wholly inadequate for her to understand the advantages and disadvantages of signing the BFA. [36] ( … ) [T]hat the wife was advised against signing the BFA, but did so anyway, may be an ‘indicium of undue influence’ as was held to be the case by the plurality in Thorne v Kennedy [ed. full citation: Thorne v Kennedy [2021] FamCAFC 9] ( … ) [64] … [I]t is one thing for the wife to have had an understanding of the effect of the BFA not radically different from its actual effect … but it is a very different thing for a person to have sufficient knowledge and understanding adequately to protect their own interests ( … )

COSTS No error in trial judge’s order that applicant’s barrister and solicitor pay respondent’s costs where property case improperly pursued In Beamish & Coburn (Deceased) [2021] FamCAFC 20 (22 February 2021) the Full Court (Aldridge, Austin & Tree JJ) dismissed with costs an appeal in a case where a live in carer had sought a declaration as to the existence of a de facto relationship and property orders. The Court found that there was no evidence of the breakdown of a de facto relationship. The applicant’s barrister and solicitor appealed the order that they be jointly and severally liable for the respondent’s costs, fixed at $100 000. The Full Court said (from [14]): “The initiating application … was signed by [the applicant] …. At line 27, a cross indicated that a date of final separation was ‘[n] ot applicable’ ( … ) [27] In her affidavit … [the applicant] … said: ... I believe [we] are still a couple but for the restrictions placed on me to visit him at his nursing home ( ... ) ... [The deceased] did not voluntarily leave me but was forced to...

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[28] … [D]ifficulties emerge from this evidence. [29] The first is whether the parties had … separated at all. This issue can arise when one party … is moved to a hospital or an aged care facility. This does not … mean there has been a separation or breakdown of the … relationship ( … ) [30] The second is identifying the date of the breakdown of the … relationship … [31] … [T]he … judge found that the … practitioners were … negligent in failing to come to grips with these difficulties. … [T]he [barrister] … said that she considered withdrawing … but did not do so because the [solicitor] … threatened to sue her for negligence.( … ) [79] The … various forms of the initiating application filed by [the applicant] … failed to assert a breakdown of the relationship or identify a date that it occurred. … [T]he first three versions of the initiating application sought a declaration that the relationship had not ended. … [The applicant’s] … affidavit evidence was consistent with … no breakdown of the relationship.”

CA SE NOTES - FAMILY L AW CHILDREN Father’s loss of confidence in family report writer insufficient to support his application to appoint a new expert In Behrendt & Cadenet (No. 2) [2021] FamCA 19 (29 January 2021) Harper J dismissed a father’s interim application in a parenting case for the appointment of a new family report writer in respect of a 10 year old child, where the family report writer, Dr B, referred in an interim report to the mother’s allegation that she had in her possession a large amount of pornography downloaded by the father which, when appraised, might become a finding of paraphilia on the father’s part ([3]). A USB stick of “about 500 professionally shot stack static images of young attractive women” and “pornographic digital movies” was provided to Dr B who recommended that reports be obtained from an IT expert (as to viewing patterns) and a paraphilia expert ([5]-[6]). The Court said (from [16]): “The father … argued that the USB materials have negligible probative value. … [17] … [T]he father contended that the material Dr B had … seen may have contaminated his opinion … he may … have prejudged factual issues such as the ownership of the pornographic material and the

nature of the father’s viewing patterns ( … ) [20] I reject the argument based on the assertion that the USB materials have negligible probative value. … [I]t is not possible or appropriate to attempt to form any view about the probative value of the USB materials at this point. ( … ) [21] … Although the father disavowed any reliance upon apprehended bias, it seems to me that that is … what lies behind his assertions of loss of confidence in Dr B. … [22] … The … fact that [Dr B] … considered that further expert evidence was necessary demonstrates that he himself was not offering any opinion about the father’s habit of viewing material ( … ) [26] I accept the submission of Counsel for the mother that if loss of confidence alone was a broadly applicable criterion for discharge of a single expert, such discharges would be happening on a regular basis. ( … )

PROPERTY Husband appointed co‑director of corporate trustee but failed in his application for removal of the wife as director In Crawford [2021] FamCA 15 (29 January 2021) Berman J allowed a husband’s interim application to be made a director of G Pty Ltd, which was a corporate trustee of a family trust and owned land associated with the husband’s family’s business operations. The husband sought orders compelling the removal of the wife as director, arguing that the company required finance for the development of the real property it owned so as to sustain business operations, which would ordinarily be sourced from his father, but where his father had refused to assist financially so long as the wife participated in the business structure. The wife consented to the appointment of the husband as co-director, but opposed her removal as director. The wife also sought that she be appointed as co-director of another corporate trustee, V Pty Ltd, which owned shares in the family business. The Court said (from [48]): “[The husband’s father] … considers that G Pty Ltd would not be able to obtain commercial finance whilst the wife remains in control [and further] … considers that the finance arrangements would in any event be unsuccessful

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unless he was prepared to commit $1m in support of the finance application. He is not prepared to do so whilst the wife remains involved. [51] There has not been evidence presented that would support the financial viability and implication for [the business] … and therefore the husband’s direct and indirect interest in same. [52] There is potential merit in the position adopted by each of the parties. In the absence of evidence the Court has no ability to determine, whether if orders are made as sought by the husband, they will have the effect of preserving the value of the assets of the parties.

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[53] I do not ignore the potential for difficulty to be created … [difficulties for the business] in the absence of a suitable business venue development ( … ) [55] I accept that at this stage there is not sufficient evidence that would enable the Court to make an informed decision and on that basis whilst I consider there is merit in the husband becoming a co-director of G Pty Ltd, I am not prepared to order the wife’s removal as a director …” The parties were directed to appoint the husband as codirector of G Pty Ltd and also directed to appoint the wife as co-director of V Pty Ltd

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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 RES JUDICATA Foreign divorce In Clayton v Bant [2020] HCA 44 (2 December 2020) the High Court was asked to determine whether Ms Clayton’s proceedings in the Family Court of Australia (Family Court) were precluded by a ruling made by the Personal Status Court of Dubai (Dubai Court) in divorce proceedings brought by Mr Bant. Ms Clayton and Mr Bant (not their real names) were married for about five years and had a child. Ms Clayton is an Australian citizen and Mr Bant is a citizen of the United Arab Emirates (UAE). They were married in a Sharia court. Marriage under Personal Status Law of the UAE is a formal contract in which provision can be made for a husband to pay dowry to a wife. The written contract here provided for Mr Bant to pay Ms Clayton an “advanced” dowry of AED 100,000 and a “deferred” dowry of the same amount in the event of death or divorce. Mr Bant owns real and personal property in the UAE and many other parts of the world. Ms Clayton owns personal property in UAE. Both own real property in Australia. Ms Clayton left Mr Bant and returned to live in Australia with their child. When Ms Clayton commenced proceedings in the Family Court seeking parenting and, later, orders for property settlement pursuant to ss74 and 79 of the Family Law Act 1975 (Cth) (Family Law Act). Mr Bant commenced proceedings in the Dubai Court

seeking a divorce. Mr Bant also sought orders for the extinguishment of all of Ms Clayton’s marital rights associated with the divorce in terms of alimony and the deferred dowry. Ms Clayton was notified of the Dubai proceedings but did not appear. The Dubai Court made a ruling in which Mr Bant was granted an “irrevocable fault-based divorce” dissolving the marriage (Dubai Ruling). The Dubai Ruling went on to order Ms Clayton to refund the advanced dowry and pay Mr Bant’s legal costs. In respect of the alimony and deferred dowry, the Dubai Court considered that “this subject is untimely”. Mr Bant subsequently sought a permanent stay of the Family Court proceedings. At first instance, Mr Bant’s application was dismissed. Mr Bant successfully appealed that decision and the Full Court ordered a permanent stay. Ms Clayton then appealed and the High Court unanimously overturned the Full Court’s decision. Keifel CJ and Bell and Gageler JJ gave reasons for their decision in a joint judgment. Gordon and Edelman JJ each delievered separate judgments. Edelman J observed at [65] four separate rules of finality relevantly applied here. First, res judicata (Latin for “a thing decided”) or the doctrine of merger. The High Court noted at [66] that the doctrine is not just about the finality of litigation. It describes the extinguishment of an independent prior right.

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That is, when the court order “replicates” the prior right with consequences, such as enforcement mechanisms, the prior right no longer has an independent existence, instead it has merged with the order. Second, cause of action or claim estoppel. If a judgment has finally resolved a conflict about a cause of action then the parties will be precluded from relitigating that cause of action. Third, issue estoppel. If it is necessary for the final resolution of a dispute to determine an ultimate issue of fact or law then the parties will be precluded from denying a state of fact or law inconsistent with that resolution. Finally, Anshun estoppel (or the extended principle in Henderson v Henderson (1843) 3 Hare 100). This rule was recognised in Henderson and Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. It is an extension of the second and third rules outlined above. The rule precludes a party from raising a cause of action or an issue in a new proceeding if it was so relevant to the subject matter of the previous, resolved, proceeding that it would have been unreasonable not to have raised it in that resolved procceding at the time. The High Court determined that the Dubai Ruling did not give rise to res judicata because the Dubai Ruling did not, and could not, determine Ms Clayton’s rights under the Family Law Act. As for estoppel (rules 2, 3 and 4) the High Court observed at [30] that Mr Bant bore the onus of proving it. The High

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Court considered that Mr Bant failed to prove (or at [31] “did not deign to prove”) that it was unreasonable for Ms Clayton to raise her Family Court claims in the Dubai Court (in order to establish an Anshun estoppel). But, more fundamentally, Mr Bant failed to prove substantial correspondence between between Ms Clayton’s Family Court claims and any right that might have been asserted by her and was finally determined in the Dubai Court. The High Court noted at [40] and [56] that the only rights that Ms Clayton could have legally put into issue in the Dubai Court was her entitlement to the deferred dowry and to her share in any real property in Dubai (the Dubai Court having no power to alter their interests in property outside the UAE). As Edelman J observed at [64], the proper characterisation of the Dubai Ruling was that the only claim it resolved was the dissolution of the marriage.

TRESPASS Admissibility of evidence In Roy v O’Neill [2020] HCA 45 (9 December 2020) the High Court was required to consider whether a police officer was trespassing on private property when he administered a breath test, the results of which were used in evidence against the appellant (Ms Roy). A Domestic Violence Order (DVO) was issued against Ms Roy out of the Local Court of the Northern Territory of Australia. The purpose of the DVO was to protect Ms Roy’s partner, Mr

Johnson. The DVO restrained Ms Roy from being in the company of Mr Johnson, or at a place where he lived, when she was consuming alcohol. Sometime after the DVO had been issued, Constable Elliott visited Mr Johnson’s home. At the time, the police in the Northern Territory were engaged in a “proactive policing” operation targeting domestic violence. Constable Elliott later gave evidence that he was concerned about Mr Johnson’s welfare. Mr Johnson lived in a unit in a public housing complex. Constable Elliott entered the complex from the footpath and walked along one of the pathways, shared by the units, to the door of Mr Johnson’s unit. Constable Elliott knocked on the flyscreen door and, looking in, saw Mr Johnson seated on the couch and Ms Roy lying on the floor. Constable Elliott called Ms Roy to the door. As Ms Roy approached the door, she displayed signs of intoxication. Constable Elliott required Ms Roy to provide a breath test and Ms Roy complied. The machine gave a positive reading for alcohol and the results were subsequently used against Ms Roy in proceedings against her for breaching the terms of the DVO. At trial, evidence of the breath test result was objected to. Constable Elliott asserted that when he took the breath sample, he was exercising power under reg 6 of the Domestic and Family Violence Regulations (NT) (Regulations). Regulation 6 requires a defendant to comply with a reasonable direction

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by a police officer to submit to a breath test. For the direction to be reasonable, it is not necessary for the officer to suspect that the defendant has consumed alcohol. But, importantly, the regulation does not authorise a police officer to enter private property. Section 126(2A) of the Police Administration Act (NT) (Act) though does authorise entry if the officer believes, on reasonable grounds, that a contravention has occurred. The trial judge found that neither the Regulations nor the Act gave Constable Elliott power to attend Mr Johnson’s home to check Ms Roy’s compliance with the DVO. The decision was overturned by the Court of Appeal of the Northern Territory. And the High Court, in a 3:2 split, upheld the Appeal Court’s decision. Keifel CJ and Keane and Edelman JJ (the latter two justices in a joint judgment) considered that Constable Elliott was not a trespasser at the time that he administered the breath test. Their Honours noted at [11] and [66] that to lawfully enter private property permission to enter must first be given by the occupier. And that permission, their Honours observed, can be implied. Citing Halliday v Nevill (1984) 155 CLR 1, their Honours explained at [14] and [68] that a (revokable) licence to enter will be implied to walk on a path or driveway for the purpose of lawful communication, or delivery, to any person on the property if access is unobstructed and there is no notice, or other indication, that entry is prohibited. Their Honours considered that Constable Elliott lawfully entered onto the private premises because he used an unobstructed pathway to access the property for the lawful purpose of carrying out a welfare check. Keifel CJ at [19] also considered that when Constable Elliott saw Ms Roy in an intoxicated state, he had the requisite belief for the purposes of s126(2A) of the Act to remain on the property and require Ms Roy to provide a breath sample under reg 6 of the Regulations. But Keane and Edelman JJ at [93] thought it unnecessary to decide whether the Act or Regulations applied because it was an undisputed fact that Ms Roy had voluntarily provided a sample of her breath. Bell and Gageler JJ, in dissent, in a joint judgment redolent of the film “The Castle” opined, at [31] that “In the Australian way of thinking, a home is a sanctuary”. Their Honours recognised at [34] that the implied licence

can be invoked by a police officer. But their Honours considered at [40] that a police officer exceeds the limits of that licence if the officer has any conditional or unconditional intention of ordering the occupier to do anything. Their Honours concluded that Constable Elliott was a trespasser because they considered that he intended to take a sample of Ms Roy’s breath when he entered onto the property and, as such, he had exceeded the limits of the implied licence.

CONSTITUTIONAL LAW Section 92 In Palmer v Western Australia [2021] HCA 5 (24 February 2021) the High Court was required to consider whether the Quarantine (Closing the Border) Directions (WA) (Directions), which effectively closed the West Australian border from 5 April 2020, infringed s92 of the Constitution. The Police Commissioner for Western Australia issued the Directions under s67 of the Emergency Management Act 2005 (WA) (the Act). Section 67 allows an authorised officer to (among other things) “direct or, by direction, prohibit, the movement of persons . . . into, out of or around an emergency area or any part of the emergency area” during a state of emergency for the purpose of “emergncy management”. A Minister may declare a state of emergency under s56 of the Act provided that the conditions enumerated under s56(2) are met. The Minister declared a state of emergency under the Act on 15 March 2020 (after the World Health Organisation declared COVID-19 a pandemic). The challenge to the Directions was brought by Clive Palmer (Palmer) and Mineralogy Pty Ltd, a company of which Palmer is chairman and managing director (the plaintiffs). Palmer regularly travelled between WA and his home in Queensland for business purposes. Palmer applied for, and was denied, an exemption under the Directions. The plaintiffs subsequently brought proceedings in the original jurisdiction of the High Court, in May 2020, seeking a declaration that “either the authorising Act and/or the Directions are invalid, either wholly or in part . . . by reason of s92 of the Constitution”. Section 92 of the Constitution provides, relevantly,

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“trade, commerce and intercourse among the States . . . shall be absolutely free”. The plaintiffs argued that the Directions imposed a burden on the freedom of intercourse among the Australian people by prohibiting cross‑border movement of people. Alternatively, the plaintiffs argued that the freedom of trade and commerce guaranteed by s92 is contravened because the Directions imposed an effectively discriminatory burden with protectionist effect. The defendants (the State of Western Australia and the Police Commissioner) denied that either the Act or the Directions contravened s92 because, they argued, neither had the purpose of economically protecting Western Australia rather they had the legitimate purpose of (and were reasonably necessary to achieve) the protection of the population of Western Australia against risks arising from emergency situations. No agreement could be reached between the parties on the facts necessary to determine the plaintiffs’ claim by the High Court. Accordingly, the High Court remitted the issue to the Federal Court of Australia for hearing and determination pursuant to s44 of the Judiciary Act 1903 (Cth). On 25 August 2020, Rangiah J of the Federal Court found that the facts pleaded by the defendants, in support of their argument that the Directions did not infringe s92, had been proved. Importantly, Rangiah J held that the risk to the health of

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the West Australia population was a function of two factors: the probability that COVID-19 would be imported into the population and the seriousness of the consequences if it was imported. Rangiah J concluded that, given the uncertainties about importation of the disease into Western Australia and the potentially serious consequences of the disease, “a precautionary approach should be taken to decision-making about the measures required for the protection of the community” (see [23]). The High Court unanimously (but in separate reasons) rejected the plaintiffs challenge to the Directions. As Gageler observed at [83], “The riddle ‘riddle of s92’ lies in the question begged by the constitutional text: ‘absolutely free from what?’” Citing Cole v Whitfield (1988) 165 CLR 360 at 394 and 398, Gageler J notes at [85] that it has been authoritatively determined that trade and commerce among the states is guaranteed by s92 to be absolutely free from “discriminatory burdens of a protectionist kind”. As to what amounts to discrimination, in joint reasons, Keifel CJ and Keane J explain at [31], “Discrimination in a legal sense involves a comparison of relative equals by which one is treated unequally, or of unequals treated equally”. The High Court was unanimous in finding that the Directions were discriminatory but did not infringe s92 because it was justified to protect the population of Western

Australia from COVID-19. But where their Honours parted company was the test adopted to determine this justification. Kiefel CJ and Keane J and, in a separate judgment Edelman J, held that the proper test was the “structured proportionality test” – a rigid test involving three distinct steps (see [269][276]). Conversely, Gageler and Gordon JJ, in separate judgments, considered that the proper test for justification was “reasonable necessity”. The test involves an evaluative judgment as to the suitability and necessity of the legislation imposing the burden.

CLASS ACTIONS Competing class actions In Wigmans v AMP Limited & Ors [2021] HCA 7 (10 March 2021) the High Court was required to consider whether the Supreme Court of New South Wales had the power to choose between competing group proceedings as to which to allow to proceed on any basis other than on a “firstin-time” basis. In April 2018, AMP executives gave testimony to the Financial Services Royal Commission to the effect that AMP had deliberately charged some of its clients fees for no service and that it had misled ASIC as to the extent of its conduct. Following this testimony, the value of AMP shares on the Australian Stock Exchange dropped sharply. Subsequently, and in quick succession, five separate open class representative proceedings were commenced on behalf of AMP shareholders who had

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invested in AMP during the periods of time in which they allege the company should have disclosed the information, revealed at the Royal Commission, to ASIC. The first of these representative proceedings was brought by the applicant (Wigmans). The last two group proceedings commenced were brought by the second respondent (Kolotex) and the third respondent (Fernbrook). Kolotex and Fernbrook later consolidated their proceeding (the Kolotex/ Fernbrook proceeding). The head plaintiffs for each group proceeding brought an application to permanently stay the other group proceedings. The primary judge ordered that all of the group proceedings, save for the Kolotex/Fernbrook proceeding, be permanently stayed. Ostensibly, the primary judge made this order pursuant to ss67 and 183 of the Civil Procedure Act 2005 (NSW) (CPA) (which respectively empowers the court to stay proceedings and empowers the court to make any order the court thinks necessary to ensure that justice is done) and the inherent power of the Supreme Court (which encompasses both powers). The primary judge approached the determination of the stay applications by an assessment of the potential benefits expected to flow to group members in each representative proceeding. The trial judge proceeded by reference to the case management principles contained in the “overriding purpose” provided in s56 of the CPA and adopted a “multifactorial analysis” of the kind endorsed by the Full Federal Court in Perera v GetSwift Ltd (2018) 263 FCR 92 at [195]. The eight factors, identified by the primary judge, as relevant to the determination of the stay applications included: the net hypothetical return to group members; the proposal for security for AMP’s costs; the nature and scope of the causes of action advanced; the size of the respective classes; the extent of any bookbuild (that is the process of joining a sufficient number of members with a sufficient claim value to make the funding of the group proceeding commercially viable); the experience of the legal practitioners and funders and the availability of resources; the state of progress of the proceedings; and the conduct of the representative plaintiffs to date. Applying these factors, the trial judge favoured the Kolotex/Fernbrook proceeding because of its

superior proposal with respect to the provision of security for AMP’s costs and the proceeding was to be funded by the lawyers themselves on a “no win, no fee basis”. Wigmans appealed unsuccessfully to the Court of Appeal of New South Wales. The Court of Appeal found no error in the primary judge’s reasons, although the Court considered that the determination of the stay applications ultimately turned on whether the ends of justice required such a remedy rather than case management principles. Wigmans then appealed to the High Court. In a narrow 3:2 split Wigmans’ appeal failed. Kiefel CJ and Keane J (in the minority) did not consider that either the CPA or the Supreme Court’s inherent power to prevent abuse of its processes authorised the Supreme Court to chose between group proceedings. Their Honours also expressed the view at [15] that the Court’s “fundamental function as the independent arbiter of the merits the merits of the group members’ claims as between them and the defendant sits awkwardly with the assumption, without legislative direction, of a role whereby the Court makes a reputational investment in the choice of sponsor”. Their Honours stated at [43] that the courts below should have determined the stay applications by reference to the principle that it is prima facie vexatious to commence an action if an action is already pending in respect of the same controversy in whch the same relief is available. And, on that basis, given that the Wigmans proceeding was first in time, the Kolotex/ Fernbrook proceeding should have been stayed. The majority (Gageler, Gordon and Edelman JJ) reached a very different conclusion. The majority considered at [73] that s67 of the CPA was a broad power, unconstrained by any particular criteria, other than having regard to the overriding purpose set out in s56. Similarly, the majority concluded at [94] that the common law does not support a first‑in-time rule or presumption. Instead, the majority observed, multiple suits remain to be resolved by the exercise of the Court’s discretion informed by all the relevant circumstances and referred to the approach adopted in equity as illustrated in cases such as McHenry v Lewis (1822)

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22 Ch D 397. Accordingly, the majority held at [118] that there was no error in the primary judge’s approach but noted that that this was not the only manner in which a court might have resolved the issue. It is convenient to note here that the majority, also expressed the view at [86] and [97] that the “first-in-time”, for which Wigams contended, would be “unworkable” and would lead to “an ‘ugly rush’ to the court door”.

ABUSE OF PROCESS In Victoria International Container Terminal Limited v Lunt [2021] HCA 11 (7 April 2021) the High Court had to consider whether an applicant’s motive for commencing proceedings (and concealment of that motive) amounted to an abuse of process that necessitated a permanent stay of the proceeding. The first respondent, Mr Lunt, was a member of the Maritime Union of Australia (MUA) for more than two decades before it merged with the Construction, Forestry, Mining and Energy Union to form the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). While a member of the MUA, Mr Lunt was employed by the appellant until his dismissal. Mr Lunt commenced proceedings (the First Proceeding) in the Federal Court against the appellant claiming that the appellant had breached the Fair Work Act 2009 (Cth) by, among other things, breaching the Victoria International Container Operations Agreement 2016

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(Enterprise Agreement). Mr Lunt later sought leave to amend the First Proceeding to seek an order quashing the Fair Work Commission’s (FWC) approval of the Enterprise Agreement on the grounds that the approval was beyond the jurisdiction of the FWC. Leave was refused and so Mr Lunt commenced a fresh proceeding (the Second Proceeding) seeking this relief. The appellant brought an application for summary dismissal of the Second Proceeding on the basis that it was an abuse of process. The primary judge found that the MUA and CFMMEU were reluctant to bring proceedings in their own names because of the risk that they would be refused relief on discretionary grounds given that the MUA had acquiesced in the approval of the Enterprise Agreement by the FWC. The primary judge found that, for this reason, the CFMMEU had engaged Mr Lunt as the “front man” in both the First Proceeding and the Second Proceeding. The primary judge allowed the appellant’s application, and summarily dismissed the proceeding because, the primary judge concluded, Mr Lunt had brought the Second Proceeding not to vindicate his own right but rather for an “illegitimate and collateral purpose”. Mr Lunt subsequently apppealed, successfully, to the Full Court of the Federal Court. The Full Court reasoned that because Mr Lunt sought to obtain a result within the scope of the remedy sought in the Second Proceeding there

was no impropriety of purpose and, as such, no abuse of process. The appellant subsequently appealed to the High Court and failed: the High Court unanimously upheld the Full Court’s decision. Keifel CJ and Gageler, Keane and Gordon JJ (the majority) set out their reasons in a single judgment. Edelman J agreed with the majority and added a few observations of his own in his own judgment. The majority, at [23], drew a distinction between motive and purpose. The majority cited William v Spautz (1992) 174 CLR 509 at 526-527 in which the plurality (Mason CJ, Dawson, Toohey and McHugh JJ) said, among other things, that an abuse of process is “when the purpose of bringing proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers”. The majority noted at [24] that Mr Lunt’s desired result, quashing the Enterprise Agreement, fell squarely within the scope of the remedy sought in the Second Proceeding. And “That Mr Lunt did not desire the result for himself, or desired the CFMMEU to take the benefit, does not change this fact” (Edelman J makes the same observation at [39]). The majority also did not see that Mr Lunt’s lack of candour about his relationship with the the CFMMEU warranted a dismissal of the Second Proceeding. The majority considered at [27][30] that there was nothing

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objectionable about the relationship and Mr Lunt was under no obligation to disclose it. And, in any event, the majority observed at [32] that the Court’s powers in relation to abuse of process are not concerned with punishing or deterring parties for their lack of candour. Instead, these powers are “exercised in order to protect the integrity of the court’s own processes”. Edelman J at [43] also considered that a permanent stay of the Second Proceeding was an inappropriate response to Mr Lunt’s lack of candour: If the Court’s discretion miscarried because of Mr Lunt’s concealment of his relationship with the CFMMEU then a new trial can be ordered. Edelman J noted that: “If the integrity of the court can be protected by remedies less drastic than a permanent stay of proceedings then there is no justification for a court to go further than necessary to protect its processes by denying a party the liberty of a fair hearing”.

CRIMINAL LAW Conspiracy The poets might claim that for those in love two hearts beat as one but, in Namoa v The Queen [2021] HCA 13 (14 April 2021) the High Court had to consider whether, for the purposes of a criminal conspiracy, a married couple are, legally, as one person. Section 11.5(1) of the Criminal Code (Cth) (the Code) creates the statutory offence of conspiracy. Section 11.5(1) provides: ‘A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed”. The appellant was found guilty by a jury of conspiring to do acts in preparation for a terrorist act contrary to ss11.5(1) and 101.6(1) of the Code. Prior to the trial the appellant applied for a permanent stay. The appellant argued that she could not be found guilty of conspiracy under the Code because she and her co-conspirator were married. The appellant pointed to a common law rule that spouses alone cannot conspire and argued

that this rule affects the meaning of “conspires” and “conspiracy” in s11 of the Code. The trial judge dismissed the appellant’s application. The appellant unsuccessfully appealed to the Court of Criminal Appeal of the Supreme Court of New South Wales. The Court of Appeal considered that the language of the Code was clear: a husband and wife are each a “person” and, as such, can be guilty of conspiring with each other within the meaning of s11.5 of the Code. The appellant was similarly disappointed in her appeal to the High Court. Gleeson J (with whom Gageler, Keane, Gordon, Edelman and Stewart JJ agreed) found at [9] that the Court of Appeal was right in reaching the conclusion that it did. Gleeson J observed at [11] that a “code is to be construed according to its natural meaning and without any presumption that its language was intended to do no more than restate the common law”. The appellant cited authorities from New Zealand, Canada and the United Kingdom in which the court recognised a common law rule that a husband and a wife, alone, cannot be convicted of conspiracy. Gleeson noted at [27] that Lord Denning MR, in Midland Bank Trust Co Ltd v Green [No 3] [1982] Ch 529 at 538, explained the existence of the rule to be a ramification of the doctrine of unity between husband and wife. And, at [24]-[25], Oliver J, in Midland at 521, considered that “the continued existence of the rule, in relation to the crime of conspiracy rests . . . not upon a supposed inability to agree as a result of some fictional unity, but upon public policy which, for the preservation of the sanctity of marriage [married author laughs out loud], accords an immunity from prosecution to spouses who have done no more than agree between themselves in circumstances which would lay them open, if unmarried to a charge of conspiracy”. But Gleeson J pointed out that in none of the cases, cited by the appellant, the Court was concerned with the meaning of the word “conspiracy”. Gleeson J drew upon the definition of “person” in the Code at [14] and extrinsic materials at [29]-[33] to conclude that s11.5(1) did not include a common law rule that a husband and wife cannot conspire. This extrinsic material included reports from various review committees which had declared the common law rule to be unhelpful, outdated and unacceptable to a modern society and recommended that the rule not be retained

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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 CONSUMER LAW AND PRACTICE AND PROCEDURE Unfair contract terms – summary dismissal application – whether finding that terms are unfair is possible without identifying particular contracts between identified parties In Australian Competition and Consumer Commission v Fuji Xerox Australia Pty Ltd [2021] FCA 153 (3 March 2021) the Court dismissed the interlocutory application for summary dismissal of the proceeding brought by the respondent (FX). The applicant (ACCC) sought declarations and injunctions concerning the use by FX of nine different template forms of contract with its customers which were said by the ACCC to be “small business contracts” within the meaning of s23(4) of the Australian Consumer Law (ACL) (Sch 2 to the Competition and Consumer Act 2010) and “standard form contracts” within the meaning of s27 of the ACL. The ACCC’s case was that a number of the terms of the template form contracts were “unfair terms” within the meaning of s24 of the ACL. The ACCC also relied on analogous provisions of the Australian Securities and Investments Commission Act 2001 (Cth).

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FX submitted that the ACCC’s case was fundamentally flawed because (other than in an amendment to the relief in an amended originating application) it did not identify any particular contract between FX and any particular customer (at [16]). It argued that it was impossible to apply the relevant provisions to any given “contract” unless the contract in question had been identified (at [13]-[14]). FX submitted the Court was impermissibly being invited to give an advisory opinion on wholly abstract questions, namely whether if a term of the kind which appears in FX’s template document features in a contract which happens to have the characteristics of a standard form contract and happens also to satisfy the requirements for a small business contract, would that be an unfair term within the meaning of s24 of the ACL (at [16]; see also [40]). Stewart J considered that an obstacle to FX in advancing its argument was that courts had on previous occasions ordered similar relief to that which was sought in this case, referring to ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224 and ASIC v Bendigo and Adelaide Bank Ltd [2020] FCA 716 (at [41]-[56]). The application for summary dismissal was dismissed. The Court held it is possible under the statutory scheme that the impugned terms were unfair notwithstanding that no actual contracts between identified parties were proved

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(at [57]). The relief sought was not too uncertain (at [59][64]). Further, the relief sought by the ACCC would decide a real controversy, being the controversy between the ACCC (as “regulator” referred to in s250(2)(b) of the ACL) and FX with regard to whether the impugned terms in the identified template contracts were unfair (at [65]). The criticisms of the relief that FX made were not being finally dealt with at this stage. Rather, Stewart J was not satisfied at this stage that there is no reasonable prospect that the relief that is sought will ultimately be granted (at [66]).

EQUITY AND HUMAN RIGHTS Discrimination and sexual harassment allegations – claim of vicarious liability of the Commonwealth – whether the Commonwealth restrained from unconscientious reliance on legal rights based on general words in Deed of Release In Leach v Commonwealth of Australia [2021] FCA 158 (2 March 2021) the Court considered the equitable principle in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 by which equity will restrain a party from unconscientious reliance on legal rights based on general words in a release. The applicant (Ms Leach) was employed by the second respondent, a former Senator of the Commonwealth on behalf of the first respondent (the Commonwealth). Ms

Leach claimed that her former employer discriminated against her on the ground of sex and engaged in sexually harassing conduct in contravention of ss5, 14, 26, 28A, 28G(2) and 28L of the Sex Discrimination Act 1984 (Cth). She also claimed that the Commonwealth was vicariously liable for the actions of the former Senator in accordance with s106 of the Act. Following an unfair dismissal claim by Ms Leach, there was a Fair Work Commission conciliation that ultimately led to Ms Leach signing a Deed of Release made on 16 January 2019 (Deed), by which Ms Leach released the Commonwealth from any “Claims” arising out of, or any way related to her former employment settling and bringing to an end the unfair dismissal claim. The question arose as to whether the release in the Deed barred Ms Leach’s subsequent claims against the Commonwealth for vicarious liability for the discrimination and sexual harassment alleged against the former Senator for whom she was previously employed. More specifically, the Court determined a separate question directed to whether or not Ms Leach was entitled to declaratory relief against the Commonwealth in relation to the Deed. It was common ground that if Ms Leach was entitled to the declaration, then she would be entitled to pursue her other substantive claims against the Commonwealth; if she was not entitled to the declaration (meaning the Deed was able to

be enforced according to its terms), she would be prevented from maintaining her claims in relation to sexual harassment against the Commonwealth and her proceeding against the Commonwealth must necessarily be dismissed. Ms Leach, as the moving party, bore the onus of establishing that the reliance by the Commonwealth on the legal terms of the Deed would, in all the circumstances, be contrary to conscience such that equity would intervene (at [19]; see also [23]). Lee J found that Ms Leach did genuinely (but mistakenly) believe that in signing the Deed, this step would not prevent her maintaining the claims that she wished to pursue (at [41]). However Lee J explained (at [42]): “To state the obvious, however, this is a necessary but not sufficient basis upon which Ms Leach seeks relief. The objective theory of contract stands in command of the field: Taylor v Johnson (1983) 151 CLR 422 (at 429 per Mason ACJ, Murphy and Deane JJ). Although I am prepared to accept Ms Leach was operating under a genuine misapprehension, her mistake was entirely unilateral and her subjective misapprehensions as to the nature of the bargain she struck with the Commonwealth, without more, are neither here nor there. The inquiry relates to the state of knowledge of both parties concerning the existence, character and extent of the liability in question (as well as the actual intention of Ms Leach): Grant (at 129–30 per Dixon CJ, Fullagar, Kitto

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and Taylor JJ). Hence, the real question for me in the present circumstances is whether the misapprehensions: (a) were known to be held by Ms Leach by representatives of the Commonwealth; and/or (b) came about by reason of some action or conduct of the Commonwealth which renders the Deed being enforced according to its terms by the Commonwealth as being contrary to conscience”. The Court found that Ms Leach fell well short of proving, in accordance with s140(1) of the Evidence Act 1995, the factual premises on which her claim for declaratory relief was based (at [43]-[44]). Consequently, the Deed could be enforced in accordance with its terms and the proceeding against the Commonwealth was dismissed (at [47]).

EVIDENCE Admissibility of prior written statements In Australian Building and Construction Commissioner v Albert [2021] FCA 168 (3 March 2021) the Court ruled on certain objections to evidence in the proceeding. Some of the applicant’s witnesses gave evidence in chief by affidavit, which affidavits referred to and annexed copies of earlier statements. The respondents objected to evidence of this nature as being prior statements made to the applicant (category 1 evidence) and prior statements written, or purportedly written, by the deponent after the relevant events (category 2 evidence). The objections of the respondent included that these statements were an attempt to bolster the credibility of the relevant witnesses and were thereby inadmissible. The applicant submitted (inter alia) that the statements were not included in the affidavits as an attempt to bolster the credibility of the respective witness. The witness was, in essence, adopting the veracity of statements he had earlier made, as evidence in chief. The Court considered various authorities as to the relevance of and admissibility of prior written statements (at [11]-[31]). Having done so, the Court

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held the evidence to which objection was taken admissible for reasons including the following: ●● The category 1 evidence and the category 2 evidence was relevant under s55 of the Evidence Act 1995 (Cth) (at [33]). ●● The evidence was deposed by way of evidence in chief of the relevant witnesses. It was not evidence subsequently sought to be adduced by the applicant as credit evidence to counter allegations of invention or reconstruction, and therefore was distinguishable from cases such as The Nominal Defendant v Clements (1960) 104 CLR 476 and Humphries v The Queen (1987) 17 FCR 182 (at [34]). ●● •Authorities establish that s37(3) of the Evidence Act 1995 anticipates that a previous statement of a witness (such as those statements in categories 1 and 2) can be adopted by the witness as true and correct, and as evidence in chief, of that witness (at [35]-[36]). ●● There being no live issues of credit in the case in respect of the applicant’s witnesses, it was difficult to see any inherent unfairness in ruling the evidence admissible (at [37]-[38]). ●● The impugned evidence was not inadmissible as credibility evidence within the meaning of s101A of the Evidence Act 1995 (at [43]-[44]). ●● The impugned evidence was not hearsay. Collier J explained (at [45]): “To paraphrase Bromwich J in Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (No 2), the adopted written statements and file notes were no more hearsay than they would be if the text of that adopted material was instead simply copied into the adoption affidavit, but with the loss of the greater contemporaneity of the prior written account”.

CA SE NOTES - FEDER AL COURT COURTS AND JUDICIAL SYSTEM Apprehended bias – trial judge does not recuse himself – Full Court held hypothetical observer might reasonably apprehend that the trial judge might be influenced subconsciously by extraneous information In GetSwift Limited v Webb [2021] FCAFC 26 (5 March 2021) the ultimate issue in the appeal was whether the primary judge should have disqualified himself from hearing the trial in a class action proceeding (Webb proceeding). The primary judge decided not to disqualify himself. The Full Court allowed the appeal. Relevantly, the appeal raised questions concerning the knowledge to be attributed to the hypothetical observer (the fair-minded lay observer) and the extent to which extraneous information in the mind of a fact finding judge which is to be discarded might still have a subconscious effect on the decision to be made by that judge. The issue arose in circumstances where the primary judge was intending to hear a regulatory civil penalty proceeding and a representative proceeding under Pt IVA of the Federal Court Act 1976 (Cth) consecutively. In the Webb proceeding, Mr Webb made allegations against GetSwift Limited (GetSwift) of continuous disclosure contraventions under s674(2) of the Corporations Act 2001 (Cth) (Corporations Act), and of

false or misleading statements and misleading and deceptive conduct in contravention of ss1041E and 1041H of the Corporations Act, s12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and s18 of Sch 2 to the Competition and Consumer Act 2010 (Cth). There were also allegations against a director of GetSwift, Mr MacDonald, by reason of knowing involvement in GetSwift’s contraventions. Civil penalty proceedings were also brought by ASIC against GetSwift and (among others) Mr Macdonald for alleged contraventions of the Corporations Act and the ASIC Act (ASIC proceeding). The allegations raised by ASIC and by Mr Webb were largely the same and the primary judge accepted that he would be dealing with largely the same course of events in the class action as in the ASIC proceeding. The ASIC proceeding had been heard and judgment was reserved. The primary judge was due to commence hearing the Webb proceeding. The primary judge intended that judgment in each proceeding would be based on (and only based on) the evidence adduced in, and argument advanced in, each proceeding (that is, without regard to the evidence adduced in, and argument advanced in, the other proceeding). In both cases, it was highly likely that the factual issues would be determined by reference to the documentary evidence that was common to both the Webb and ASIC proceeding and inferences

drawn from it. Therefore, the primary judge would have already formed some views about the documentary evidence adduced in the ASIC proceeding if he heard the Webb proceeding (at [10]). GetSwift submitted that the primary judge erred in failing to conclude that a fairminded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the Webb proceeding by reason of his having heard evidence and argument in the ASIC proceeding (at [13]). Middleton, McKerracher and Jagot JJ summarised the principles applicable to apprehended bias (at [26]-[45]). GetSwift succeeded on the ground that a fair‑minded lay observer might reasonably apprehend that the primary judge, consciously or subconsciously, might be influenced by extraneous information from the ASIC proceeding (extraneous information ground) (at [46][62]). However, the Full Court did not accept the ground that a fair-minded lay observer might reasonably apprehend that, in hearing, considering, and forming views about the material in the ASIC proceeding, the primary judge might have prejudged the resolution of issues common to both proceedings (prejudgment ground) (at [63]-[69]).

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CA SE NOTES - FEDER AL COURT CONSUMER LAW Unconscionable conduct – whether Kobelt, precedent or statutory interpretation requires that exploitation or taking advantage of some pre-existing vulnerability, disadvantage or disability is a necessary element of statutory unconscionability In Australian Competition and Consumer Law v Quantum Housing Group Pty Ltd [2021] FCAFC 40 (19 March 2021) the Full Court determined an important issue as to the meaning and application of statutory provisions that call for a standard of business conduct in Australia that is not, in all the circumstances, unconscionable, in this case s21 of the Australian Consumer Law (ACL) being Schedule 2 to the Competition and Consumer Act 2010 (Cth). The ACCC brought proceedings against Quantum Housing Group Pty Ltd and its sole director and secretary, alleging conduct that involved misleading representations in contravention of ss18(1), 29(1) (l) and 29(1)(m) of the ACL and that was unconscionable in contravention of s21 of the ACL. The respondents admitted the contraventions including unconscionable conduct under s21 of the ACL. The primary judge made orders including declarations for the contraventions of ss18(1) and 29(1) of the ACL and ordered penalties. However, the primary judge refused to conclude and to declare that the

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conduct was unconscionable. The ACCC appealed the failure of the primary judge to make a declaration as to unconscionable conduct. The key issue in the appeal was whether, for conduct to be unconscionable under s21 of the ACL or cognate provisions such as s12CB of the Australian Securities and Investments Commission Act 2001 (Cth), there is required to be present vulnerability or disadvantage in the person or persons to whom the conduct can be seen as directed and that such was exploited or taken advantage of. Allsop CJ and Besanko and McKerracher JJ held “[w]hilst some form of exploitation of or predation upon some vulnerability or disadvantage of people will often be a feature of conduct which satisfies the characterisation of unconscionable conduct under s21, such is not a necessary feature of the conception or a necessary essence in the embodied meaning of the statutory phrase” (at [4]; see also [78]-[93]). The Full Court’s judgment involved a deep analysis of the different reasons for judgment of the members of the High Court in Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1 (at [37]-[79]). Having done so, the Full Court held that the primary judge erred in his understanding and application of Kobelt. Allsop CJ and Besanko and McKerracher JJ “rejected[ed] the proposition that ratio or seriously considered obiter dicta of a majority of

the High Court, indeed, of any justice of the Court in Kobelt (other than Keane J) requires in any case that for conduct to be unconscionable by reference to ss12CB and 12CC of the ASIC Act (or ss21 and 22 of the ACL) there must be found some form of pre‑existing disability, vulnerability or disadvantage of which advantage was taken” (at [79]). The Full Court allowed the ACCC’s appeal and made a declaration of unconscionable conduct under s21 of the ACL.

COSTS Public interest litigation – whether depart from usual orders as to costs In Bob Brown Foundation Inc v Commonwealth of Australia (No 2) [2021] FCAFC 20 (26 February 2021) the Full Court considered costs following the hearing of a separate question resulting in unsuccessful public interest litigation. The Full Court examined and applied the principles in Oshlack v Richmond River Council (1998) 193 CLR 72. Having regard to particular facts and circumstances of the proceeding, the Full Court departed from the usual order as to costs and held there should be no order as to costs.

CA SE NOTES - FEDER AL COURT CONSUMER LAW AND CIVIL PENALTIES Appeal from primary judge rejecting agreed penalty and imposing substantially higher penalty Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49 (9 April 2021) concerned the pecuniary penalty imposed on Volkswagen for its admitted contraventions of s29(1)(a) of the Australian Consumer Law (ACL) in relation to its deception of the Australian government and Australian consumers about the exhaust emissions of certain Volkswagen‑branded motor vehicles which were imported into Australia for sale for about five years from January 2011 to October 2015. Volkswagen and the ACCC jointly submitted to the Court that a penalty of $75m was an appropriate penalty for the contraventions. The primary judge found that the proposed penalty was manifestly inadequate and instead imposed a penalty of $125m. The central issue raised by the appeal was whether the primary judge erred in rejecting the jointly proposed penalty and imposing instead the significantly higher penalty. The Full Court made observations about the nature of the primary judge’s decision (at [119]-[133]). Wigney, Beach and O’Bryan JJ rejected the ACCC’s submission that the primary judge’s decision was not discretionary and concluded (at [131]): “. . . The Court’s task in such cases is not limited to simply determining whether the jointly proposed penalty is within the permissible range, though that might be expected to be a highly relevant and perhaps determinative consideration. Nor is the Court necessarily compelled to accept and impose the proposed penalty if it is found to be within the acceptable range, though the public policy consideration of predictability of outcome would generally provide a compelling reason for the Court to accept the proposed penalty in those circumstances. The overriding statutory directive is for the Court to impose a penalty which is determined to be appropriate having regard to all relevant matters. The fact that the regulator and the contravener have agreed and jointly proposed

a penalty is plainly a relevant and important matter which the Court must have regard to in determining an appropriate penalty. It does not follow, however, that the determination is not discretionary in nature”. However, the Full Court rejected Volkswagen’s various appeal grounds which in the main were supported by the ACCC. ●● The Full Court accepted that the primary judge erred in adopting an overly narrow interpretation of s224(2)(c) of the ACL and in not considering whether the absence of prior contraventions on the part of Volkswagen was capable of constituting a mitigating circumstance (at [137]). However, in the circumstances of this case this could not have had any material effect on the ultimate penalty imposed (at [138]-[146]). ●● There was no error by the primary judge in finding that the agreed penalty of $75m was not sufficient to achieve deterrence (at [147][167]). In determining this ground, the Full Court examined the circumstances where there may be a relationship between the penalty imposed and the profit derived from the contravening conduct (at [148]-[149]). ●● It did not follow that, in not accepting that the agreed penalty was an appropriate penalty and instead fixing a significantly higher penalty, the primary judge gave no or insufficient weight, to the agreement or settlement that had been reached between Volkswagen and the ACCC, or to the important public policy consideration concerning the promotion of the predictability of outcome in civil penalty proceedings (at [168]-[173]). ●● There was no error in the way that the primary judge dealt with the penalties imposed on Volkswagen in overseas jurisdictions (at [174]‑[184]). ●● The findings that were made by the primary judge in relation to harm to consumers were findings based on inferences that were open

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to be drawn, irrespective of the joint submission of the parties (at [185]-[192]). ●● Nor was there error in relation to certain matters that Volkswagen contended that the primary judge had regard but were extraneous or irrelevant matters (at [193]-[201]). ●● The penalty of $125m imposed by the primary judge was not manifestly excessive (at [202]-[213]).

INDUSTRIAL LAW AND PRACTICE AND PROCEDURE Challenge to a report of a referee regarding causation under s545 of the Fair Work Act 2009 In Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 348 (1 April 2021) the Court rejected a report of a referee pursuant to s54A(3)(c) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). In a previous judgment the Court found the union contravened the Fair Work Act 2009 (Cth) (FW Act): [2019] FCA 451; (2019) 286 IR 52. The remaining issues in the litigation were (1) the identification and quantification of any entitlement to statutory compensation; and (2) whether the Court should impose any pecuniary penalty. The Court referred some aspects of the issues as to the entitlement to statutory compensation to a referee for inquiry and report: see (No 2) [2020] FCA 1093. The referee prepared a report and the parties were in dispute as to whether the report should be adopted or rejected. The power of the Court to determine how to proceed with a referee report after it has been “provided to the Court” is in s54A of the FCA Act and rule 28.67 of the Federal Court Rules. Lee J relied on the principles in Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 at [7] as

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setting out the considerations relevant to the Court’s discretion as to whether or not to adopt a referee report (at [15]). Lee J held that the referee’s report should be rejected in whole. In summary, this was because the referee had gone beyond the questions and concepts that the Court asked him to address, being those related to factual causation. Further, the referee misunderstood the legal principles applicable to causation in the context of s546(2)(b) of the FW Act, the scope of the questions and, more specifically, blurred the line between factual and legal causation and that misunderstanding coloured the referee’s report on the evidence before him (at [9]). Rather than referring the matter back to the referee, the Court will in due course determine all remaining issues (at [53]). Lee J observed at [47]: “For reasons I have already explained, the line was blurred between the task of the Court and the specific questions put to the Referee for resolution, in this case the line between factual and legal causation. I mean this with no disrespect to the Referee. I thought it was clear, given the nature of my Reference Judgment, but perhaps in future in matters such as this it may be useful for there to be a case management hearing where a non-subject matter referee is apprised directly by the Judge of the precise nature of the task the referee is being asked to undertake”.

CA SE NOTES - FEDER AL COURT PRACTICE AND PROCEDURE AND LEGAL PRACTITIONERS Application to restrain solicitor from acting against former client In Sacca v El Saafin [2021] FCA 383 (20 April 2021) the Court dismissed an interlocutory application by the first defendant seeking an order restraining a solicitor from acting for the plaintiff in the proceeding. In doing so, Anastassiou J summarised the three potential basis that might justify the exercise of the Court’s jurisdiction to restrain a solicitor from acting against a former client, being: 1. misuse of confidential information (at [26]-[27]) 2. the duty of loyalty owed by a solicitor to their former client even after the solicitor’s retainer has been terminated (at [28]-[29])

3. the due administration of justice to protect the integrity of the judicial process (at [32]-[33])

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ENDNOTES Discrimination against women prisoners in the Darwin Correctional Centre (pages 22-30)

17. H. Johnson, ‘Drugs and Crime: A Study of Incarcerated

1. Australian Bureau of Statistics (ABS), Prisoners in

Prison - Complaints from Women Prisoners at Darwin

Australia (Catalogue No 4517.0, 3 December 2020); ABS, Prisoners in Australia (Catalogue No 4517.0, 9 December 2010).

Criminology 27 cited in Ombudsman (NT), Women in Correctional Centre, Investigation Report (2008) 140. 18. Meyer (n 12); Human Rights Law Centre (HRLC) and Change the Record, Over-Represented and

2. Ibid.

Overlooked: The Crisis of Aboriginal and Torres Strait

3. Carmel Lohan and Vanessa Lethlean, ‘Women

Islander Women’s Growing Over-Imprisonment (2017)

Incarcerated at Darwin Correctional Centre –

13 citing Victoria Tauli Corpuz, Report of the Special

Advocating for and Shining a Light on Women

Rapporteur on the Rights of Indigenous Peoples, UN

Ordinarily Invisible at a Policy Systems and Structural

DOC A/HRC/30/41 (6 August 2015) 41.

Level’ (Research Report, Top End Women’s Legal

19. See Ombudsman (NT) (n 17).

Service (TEWLS), August 2020) 3.

20. Kilroy (n 16) 9.

4. Department of the Attorney-General and Justice (NT AGD), 2019-20, Annual Report (2020) 37. 5. ABS, Prisoners in Australia (Catalogue No 4517.0,

21. NT AGD (n 15) 55. 22. Lohan and Lethlean (n 3) 5. 23. See Ombudsman (NT) (n 17) 36.

9 December 2010); ABS, Prisoners in Australia

24. Kilroy (n 16) 5.

(Catalogue No 4517.0, 3 December 2020).

25. HRLC and Change the Record (n 18) 17.

6. ABS, Prisoners in Australia (Catalogue No 4517.0, 3 December 2020).

26. See e.g. Australian Law Reform Commission (ALRC), Pathways to Justice – An Inquiry into the Incarceration

7. Ibid.

Rate of Aboriginal and Torres Strait Islander Peoples,

8. ABS (n 6); ABS, Prisoners in Australia (Catalogue No

Report No 133 (2017); Ombudsman (NT) (n 17); Kilroy

4517.0, 9 December 2010).

(n 16).

9. ABS (n 6).

27. Ombudsman (NT) (n 17) 36.

10. ABS, Estimates of Aboriginal and Torres Strait Islander

28. Meyer (n 12).

Australians (Catalogue No. 3238.0.55.001, 31 August

29. Lohan and Lethlean (n 3).

2018).

30. Letter from TEWLS to Office of the Ombudsman NT, 1

11. ABS (n 6).

March 2019; TEWLS, ‘Submission in Response to the

12. Silke Meyer, ‘Women in Prison: Histories of Trauma

Productivity Commission Draft Report – Incarcerated

and Abuse Highlight the Need for Specialised Care’,

Women’, 23 January 2020 < https://tewls.org.au/wp-

SBS News (online), 2 December 2016 < https://

content/uploads/2020/08/Mental-Health-Inquiry-

www.sbs.com.au/news/women-in-prison-histories-

Productivity-Commission-20200123.pdf>.

of-trauma-and-abuse-highlight-the-need-forspecialised-care>.

31. ‘NTCOSS Congratulates Michael Gunner and his Territory Labor Team on their Re-Election’, NTCOSS

13. ABS (n 6).

Northern Territory Council of Social Services

14. Ibid; ABS, Prisoners in Australia (Catalogue No 4517.0,

(Web Page) < https://ntcoss.org.au/news/ntcoss-

9 December 2010). 15. NT AGD, Pathways to the Northern Territory Aboriginal Justice Agreement, Companion Paper (2019) 55. 16. Debbie Kilroy, ‘Women in Prison in Australia’ (Paper

congratulates-michael-gunner-and-his-territorylabor-team-on-their-re-election/>. 32. ‘Written Question No. 57’ (Written Question, Legislative Assembly of the Northern Territory, 31 March 2017) 10.

presented at the National Judicial College of Australia

33. Ibid, 7.

Conference, Australian National University, 6-7

34. Hawker Britton, Northern Territory Election NT

February 2016) < https://njca.com.au/wp-content/ uploads/2017/12/Kilroy-Debbie-Women-in-Prison-inAustralia-paper.pdf>.

Female Offenders’ (2004) Australian Institute of

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Labor’s Election Policies (August 2016) 7.

ENDNOTES

35. Our Watch, Changing the Picture: A National Resource to Support the Prevention of Violence Against

58. Sex Discrimination Act 1984 (Cth) ss 5, 5A, 5B, 5C, 6, 7, 7AA, 7A.

Aboriginal and Torres Strait Islander Women and Their

59. Ibid, divs 1-3.

Children (2018).

60. Ibid, s 7B(1).

36. Ibid citing Change the Record Coalition, Blueprint

61. Ibid, s 7B(2).

for Change (Change the Record Coalition Steering

62. Ibid, s 5.

Committee, 2015).

63. Janet Phillips and Malcolm Park, ‘Measuring Domestic

37. Ibid.

Violence and Sexual Assault against Women’ (E Brief,

38. Australian Institute of Health and Welfare (AIHW), The

Parliamentary Library, Parliament of Australia, 12

Health of Australia’s Prisoners 2018 (2018) 72. 39. Ibid citing J. Poehlmann, ‘Representations of Attachment Relationships in Children of Incarcerated Mothers’ (2005) 76(3) Child Development 679.

December 2006). 64. ABS, Personal Safety Survey (Catalogue No. 4906.0, 8 November 2017). 65. Ibid.

40. AIHW (n 38) 72.

66. Sex Discrimination Act 1984 (Cth) s 22.

41. NT Government, Domestic, Family & Sexual Violence

67. Ibid, s 4.

Reduction Framework 2018-2028: Safe, Respected and Free from Violence (2017). 42. NT AGD, Northern Territory Aboriginal Justice

68. Lohan and Lethlean (n 3) 6 citing NT AGD, 2018-19, Annual Report (2029). 69. Ibid.)

Agreement 2019-2025: Draft Agreement for Consultation (2019). 43. ‘NT Government Criticised for Cutting Prisoner Rehab Programs’, PM with Linda Mottram (ABC Radio National, 18 February 2021). 44. NT Anti-Discrimination Commission (ADC), Preventing Discrimination… It’s Good for Business! Your Rights and Responsibilities in Small Business (2006) 8. 45. NT ADC, Modernisation of the Anti-Discrimination Act, Discussion Paper (2017) 16. 46. Anti-Discrimination Act 1992 (NT) s 20. 47. Ibid, s 17. 48. Ibid, s 28. 49. Ibid, ss 19(1)(b), 28(d). 50. Ombudsman (NT) (n 17); NT AGD, A Safer Northern Territory through Correctional Interventions: Report of the Review of the NT Department of Correctional Services (2016); Health and Community Services Complaints Commission, Final Investigation Report: Investigation into the Prison Health Service at Darwin Correctional Centre (2016). 51. Ombudsman (NT) (n 17) 55-56. 52. Ibid. 53. Anti-Discrimination Act 1992 (NT) s 24. 54. Ibid, s (19)(3)(b). 55. See e.g. Sex Discrimination Act 1984 (Cth) s 10(4). 56. ‘Indirect Discrimination’, Australian Human Rights Commission (Web Page) < https://humanrights.gov. au/quick-guide/12049>. 57. Sex Discrimination Act 1984 (Cth) s 7C, 7B(2).

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Even though restrictions have eased and vaccines are being distributed, 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.

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Articles inside

Dan Star QC Federal Court judgments

Dr Michelle Sharpe High Court judgments

Craig Nicol & Keleigh Robinson Family law judgments

Cameron Ford Supreme Court judgments

Wise Law Taking out fear and introducing fair

Elias Recruitment Getting your CV ready

Lawcover The importance of effective supervision: Managing the risks

Petris Lapis Do you have the mindset for success?

From the CEO Society news and updates

Laura Burfitt Discrimination against women in the Darwin Correctional Centre – an essay

NT Young Lawyers News and updates

4 May 2021 Admissions Ceremony

NT Women lawyers Assocation News and updates

Criminal Lawyers Association of the NT SNAFU

From the President Time flies when you’re... ?

Australian Pro Bono Centre Solicitors encouraged to sign up to the National Pro Bono Target