Spring 2024 Edition

JOURNAL

Blackburn Lecture: Anne Trimmer AO

Understanding AML/CTF: Tranche 2

Ethics in Practice

Australia

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actlawsociety.asn.au

EXECUTIVE COMMITTEE

President Lisa Quilty

Vice-Presidents Georgia Briggs Vik Sundar

Secretary Kevin Robinson

Treasurer Mark Tigwell

Council-elected member Amanda Wescombe

Immediate Past President Tim Dingwall

COUNCILLORS

Andrew Allan Catherine Coles

Chris Donohue

Liz Hug

Adam Peppinck

STAFF

Andrew Giddings

Sarah Milson-Mahy

Amy Pyett

Chief Executive Officer Simone Carton

Operations

Finance & Business Services Manager Lea McLean

Bookkeeper Kathleen Lui

Database Administrator & IT Support Officer Casey Magnussen

Administrative Support Janette Graham

Executive Assistant Chantelle Hanley

Regulatory Services

Regulatory Services Manager Greg Williams

Licensing Officer Nicole Crossley

Regulatory Support Officer Tara Rimes

Regulatory Support Officer Praju Pradhan

Engagement

Manager Engagement/Deputy CEO Jaime Shields

Senior Policy Officer Elsa Sengstock

Research Officer Kieran Parkinson

Member Engagement and Events Manager Kara O'Brien

Communications Officer Hayley White

Member Engagement Officer Jaimie Fairhall

Committee Administration Coordinator Kiralee Tyrrell

Office Administrator Tina Ryan

CONTACT

Level 4, 1 Farrell Place Canberra City ACT 2601 GPO Box 1562, Canberra ACT 2601 / ABN 60 181 327 029

The Society welcomes original articles for publication in Ethos. Unless stated otherwise, authors agree to the publication of their work online and via the RMIT Informit elibrary service.

To advertise in Ethos, or to offer an article for publication, please contact the communications officer by emailing: communications@actlawsociety.asn.au © This publication is copyright and no part of it may be reproduced without the consent of the Law Society of the Australian Capital Territory. Views expressed by the contributors to Ethos are not necessarily endorsed by the ACT Law Society. No responsibility is accepted by the Society for the accuracy of information contained in the text or advertisements.

Articles in Ethos are not, and must not be taken to be,

advice. For legal advice, please consult a solicitor. The Law Society acknowledges the Ngunnawal and Ngambri peoples, who are the traditional custodians of the land on which our building is located.

President’s Message

This edition of Ethos explores important themes for our sector, including challenges facing our profession and the intersection between our profession and the community we serve.

While a lot of our work as lawyers focuses on the impact of law and law reform on our wider community, and rightly so, the ACT legal profession is — itself — a community that requires our attention too.

As we’ve heard from various sources throughout my time so far as President (for example, Intensive Conference Keynote Speaker, Hugh Mackay AO) our legal community is increasingly in need of support, connection, and collegiality. As one article in this edition unpacks, our community is one where connection is key.

When we’re connected as a community, we maintain an open dialogue where new ideas and improved processes are always ready to be shared. Through our

professional community, we can work together to find the best possible solutions to challenges as they arise. We are best equipped to combat these challenges, like the introduction of new artificial intelligence technologies, or how best to interact with vulnerable clients, when we are putting our heads together to understand problems and develop solutions.

We can also work together to tackle new challenges facing our profession, whether its advocating as part of a national collaboration for greater investment to ensure the sustainability of our legal assistance services to meet legal need, or working together to support the national government’s response to money laundering and terrorism financing and support individual law practices to participate in that response.

In the spirit of ensuring our professional community is as enabled to work together as effectively as possible, it is crucial that the Society, as leaders of the ACT legal profession, address any gaps in our own processes.

That means reviewing our constitution and ensuring our governing mechanisms are modern and functional. Ultimately, good governance is the framework that ensures our organisation can meet its mission to support the ACT legal profession and maintain standards to protect the public interest. It’s for this reason, the Council has initiated the 2024 Governance Review.

We appreciate the insight we’ve received from members who have engaged with the Governance Review Survey and offered us feedback. The Society is committed to sharing the outcomes and recommendations from this Review as it progresses. I look forward to sharing the outcomes, recommendations and next steps with you all.

Lisa Quilty PRESIDENT, ACT LAW SOCIETY

Governance Review 2024

Overview

The review was initiated by the Council of the ACT Law Society and aims for the active engagement of members and other stakeholders. It was prompted by:

A concern over perceived gaps and weaknesses in the current Constitution

A desire to generally modernise and align with modern good governance practice

A consciousness of the Society’s regulatory role and the need for its governance mechanisms to be and be seen as good practice.

Objectives

In drafting an updated constitution, all stakeholders should consider the following objectives:

• Focus on meeting future challenges for governance of the Society

• While remaining appropriate to the Society’s unique role, align with modern governance expectations

• Aim to consistently attract and develop the skills and experience needed for the governing body of the Society

• Adapt to meeting the professional needs of a changing legal sector

• Encourage diverse participation in the governance of the Society.

Now that we've completed the first three stages, we're ready for stages four and five:

CEO’s Message

As a member association, the Society helps to promote connection within our legal community; but we also serve an important connecting role between the ACT legal profession and the ACT community, as well as a protective role for the community by promoting and upholding high standards of legal practice.

With these important roles in mind, a critical aspect to our work is supporting our members to connect with each other, to engage effectively in the workplace, and also to be as effective as possible when working with clients, especially those within our community who might be more vulnerable. Our last Members' Meet-up for the year will be a Christmas celebration on 5 December and I hope you will join us. We are continuing to offer training opportunities through to the end of the year, including Bystander Training through an arrangement with the Queensland Law Society on 20 November, and training on responding to Domestic and Family Violence on 29 October.

As a small team, we work hard to find innovative ways to support our members.

Those engaging with the Society via our committees and working groups will have experienced changes in how we work, leveraging technology

and implementing processes to better support our volunteers to contribute their expertise and experience in a streamlined way. We’ve implemented a new Fundamentals Series, addressing foundational skills on a regular basis, for both new lawyers and those seeking to develop new skills. We are also ofering an Ethics Series in a hybrid format, making it accessible to all.

We are conscious of ensuring that, as our legal community has grown, the Society is equipped to host member professional development and networking opportunities. With our current lease coming to an end, the Society is pleased to announce that we will be moving to a new office space in 2025.

Extensive planning has been underway to ensure that the new premises will provide an inviting and fit for purpose space for members to learn and engage, as well as increased accessibility.

Our new offices have been designed to offer improved training facilities. These new facilities will enable us to broaden the scope of the continued professional development opportunities we offer our members and provide meeting spaces that support the needs of members.

The process of moving to this new space will incur some additional work on our end, as our team prepares for the change. During this process, we expect to have some periods of office closures and I want to remind members that we are small team, so there may be delays at times in responding, but we will continue to do our best to support you. We look forward to celebrating this exciting change with you early next year.

Simone Carton CHIEF EXECUTIVE OFFICER, ACT LAW SOCIETY

Membership Spotlight

SPECIALIST CONNECT LINES

First Nations 1300 520 373

LGBTIQA+ 1300 214 958

Domestic and Family Violence 1800 879 163

Culturally and Linguistically Diverse 1300 533 904

Disability and Carers 1300 561 043

The Law Society has a contract with Acacia Connection to provide a confidential counselling program (called an employee assistance program, or EAP) for its members. Acacia Connection operates 24 hours a day.

An employee assistance program is a confidential counselling and support service to help members deal with personal or work related problems in a positive way.

Acacia will provide confidential counselling services to people who approach them and identify themselves as a member of the ACT Law Society or as an immediate family member of a member of the ACT Law Society. The program involves short term counselling of up to three hours counselling per member, per year.

The services provided through the program will remain confidential and independent of the Law Society. The Society will not request, and will not be entitled to be told, any particulars of individual members who have used the service.

Below are some of areas where members may benefit from accessing the counselling service:

• Relationship and marriage difficulties

• Family and parenting related issues

Managing grief or loss

Family illness

Depression and anxiety

Stress management

Addictions

Work related issues

Financial Support Service –helps with managing financial difficulties and budgeting

And any other issues you may be faced with in your work or personal life.

It’s easy to connect with EAP Download our App

1. Use the QR code to access our website.

2. Save our website to your homescreen.

3. Open the icon and ‘Chat Now’ from the green panel at the bottom of the screen.

Managing Disciplinary Processes and the Impact on Employees

Elisha v Vision Australia

One the most stressful things an employee can face at work is being investigated for allegations of misconduct. If sustained, the misconduct may lead to dismissal. For many employees, a job is more than just a salary — someone’s identity is often wrapped up, to some extent, in their professional life. Misconduct findings can therefore be disastrous — personally, professionally and financially.

Those are the questions currently before the High Court in Elisha v Vision Australia.1 If the Court rejects the appeal, it will limit the obligations of employers to provide safe disciplinary processes, minimising the risk of liability. But if the appeal is accepted, it could open a new frontier for employees or ex-employees to litigate dismissal processes. It could see the High Court overturn a century-old precedent that has prevented recovery for contractual damages for the mental health impact of wrongful dismissal.

It is, in other words, an important case to watch, consequently worthy of analysis in this article. The significance of the case is its common law basis – while employer obligations to provide safe workplaces and fair dismissal processes are already clearly defined under the Fair Work Act, workplace health and safety law and workers’ compensation law, changes to an employer’s underlying

1 M22/2024 (‘Elisha’).

duty of care in contract and tort would add additional layers of responsibility and potential liability. Accordingly, all employers, along with employment lawyers, will wait in anticipation as the case is decided by the High Court — likely not until early next year (hearing dates are not yet set).

Context

It is uncontroversial that employers owe to their employees a duty to provide a safe workplace. This duty covers potential injury to an employee’s ‘psyche, person or property’, provided the injury is reasonably foreseeable. 2 It is a duty ‘not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system … [taking into account] the power of the employer to prescribe, warn, command and enforce obedience to his commands.’3 These duties arise in both contract (through an implied term) and tort. However, on current

2 Tame v New South Wales (2002) 211 CLR 317 [140] (McHugh J).

3 McLean v Tedman (1984) 155 CLR 306, 313 (Mason, Wilson, Brennan and Dawson JJ)

4 [1909] AC 488 (‘Addis’).

authorities, there are limits to the extent of these duties, and damages available for breach of them — limits which are squarely raised by Elisha.

Contract

In 1909, the House of Lords decided Addis v Gramophone Co Ltd. 4 In Addis, the plaintiff managed the defendants’ business in Kolkata, India. His employment contract contained a six-month notice period, but the employer removed him from his role in breach of contract – this had a significantly negative impact on his standing in the local business community, and he experienced considerable pain and distress.

The House of Lords held that damages for this non-financial impact on the plaintiff was not recoverable in contract. The headnote stated the ratio as follows: ‘Where a servant is wrongfully dismissed from his

employment the damages for the dismissal cannot include compensation for the manner of the dismissal, for his injured feelings, or for the loss he may sustain from the fact that the dismissal of itself makes it more difficult for him to obtain fresh employment.’5 (In Elisha, the appellant challenges the correctness of this statement of the ratio of the case).

This finding was built upon by the High Court in Baltic Shipping Co v Dillon,6 a case which did not arise in the employment context, to confirm that, other than in exceptional cases, damages for breach of contract do not lie for disappointment, distress or injury to feelings. Together, these cases have significantly limited an employee’s recourse in contractual damages for the impact of an employer’s conduct in the disciplinary and dismissal process.

Tort

Australian common law has also limited the ability of employees to rely on an employer’s tortious duty of care in relation to the disciplinary process. While it is well-accepted that employers owe a general duty of care to provide a safe workplace, the extent of this duty in relation to disciplinary processes has so far been approached restrictively. In part, this arises from a desire for tort to conform with the limitations of contract, and the interface with statutory unfair dismissal schemes. As one judge has said, ‘if the common law recognises no claim for damages for personal injury based in wrongful termination of a contract of employment, how could a case in respect of the same events framed in the common law of negligence produce a different result?’ 7

Thus in the leading case of New South Wales v Paige,8 a decision of the New South Wales Court of Appeal, it was held (with Spigelman CJ writing the lead judgment) that the state did not owe its employee a duty of care to conduct its disciplinary procedures so as to avoid psychiatric harm. As the Chief Justice observed:

The area of unfair dismissals is heavily regulated in both State and Commonwealth contexts. It represents a particular and carefully calibrated balancing of the conflicting interests involved namely, between preserving the expectations of employees on the one hand and enabling employers to create jobs and wealth, on the other hand…

The expansion of the law of tort to matters concerning the creation and termination of a contract of employment, as distinct from performance under the contract, may distort the balance of conflicting interests found to be appropriate as a matter of contract or by intervention of statute. Where, as here, the courts are asked to create a novel duty of care, the courts should refrain from doing so where there is such a well developed alternative mechanism for adjusting the interests involved. Matters concerning the creation and termination of a contract of employment can, in our opinion, properly be left to the law of contract, subject to the extensive statutory modification that the parliaments have introduced into this specific area of contract law.9

Is there a duty in tort for an employer to provide a safe system of investigation and decision-making in relation to its disciplinary processes (including possible dismissal)? And does Addis preclude recovery of damages for psychiatric injury resulting from wrongful dismissal which otherwise grounds a successful claim in contract?

Elisha

First Instance

It is in this seemingly infertile soil that Elisha arose. Since 2006, Mr Elisha had worked at Vision Australia as an adaptive technology consultant, assisting people with vision impairment with their software and hardware systems. This required him to undertake home visits and travel regionally and interstate. Mr Elisha had a history of ‘competent and reliable performance’, albeit he had been subject to a disciplinary investigation for breach of IT policies, for which he was counselled.10

In the early 2010s, some tensions arose between Mr Elisha and his manager, and at one point he made a formal complaint about his manager. These issues led to anxiety and depression, and he received psychological treatment. One issue facing Mr Elisha was ‘significantly heightened sensitivity to particular sounds’, which led to ‘chronic workplace stress’.11

In March 2015, Mr Elisha was travelling for work in regional Victoria when he stayed the night at a hotel. Mr Elisha made a noise complaint to the proprietor. When other employees of Vision Australia stayed at the same hotel some months later, the hotel proprietor expressed concern about Mr Elisha’s conduct that evening (the Hotel Incident) — alleging that he had been rude and aggressive in complaining about the noise, late at night.

Subsequently, Mr Elisha was notified of the Hotel Incident, together with more generalised concerns about his workplace behaviour, and he was suspended while an investigation was undertaken. Mr Elisha denied the allegation. Vision Australia subsequently determined to accept the evidence of the hotel proprietor over that of Mr Elisha, and terminated his employment.12

Mr Elisha’s dismissal had a significant adverse psychological effect on him, and he was subsequently diagnosed with major depressive disorder. He lodged an unfair dismissal claim, which settled for payment of six months’ wages (the maximum available in the Fair Work Commission). Mr Elisha then lodged a claim in the Victorian Supreme Court for breach of contract and breach of duty in tort in relation to his dismissal, claiming ‘substantial damages’.13 The crux of both claims was that Vision Australia had a duty to provide Mr Elisha with a safe system of work, and in respect to the Hotel Incident disciplinary process and dismissal, it had breached this duty.

At trial, Mr Elisha was subjected in cross examination to what the trial judge, O’Meara J, described as ‘a root and branch style destruction of his credibility as a witness.’ This was ‘essentially unsuccessful.’14 Ultimately, the judge concluded that the hotel proprietor’s allegations of what transpired that night were exaggerated, and that what had in fact occurred was ‘considerably less objectively dramatic than later suggested.’ His Honour held: ‘I cannot accept that in the course of the events in Bairnsdale the plaintiff was anything more than irritated and insistent (and therefore irritating). He was not objectively aggressive, threatening or frightening.’15

O’Meara J held that vague and unsupported allegations from Mr Elisha’s manager about his general behaviour adversely influenced the disciplinary process decision-making, ultimately leading to a process and outcome that ‘was unfair, unjust and wholly unreasonable.’16

The judge described the process as ‘a sham and a disgrace’,17 largely relating to the way in which a particular, contested incident had been used as a fig leaf to justify generalised concerns by Mr Elisha’s manager – concerns which were not put to Mr Elisha and had no documented basis. His Honour concluded his findings of fact in this respect on an eye-catching note: "It was, however, never clear in the [defendant’s] evidence … how it could be that dismissing an employee for conduct based in a combination of slurs that were hidden from him could itself ever have been in compliance with the values of ‘person centredness’, ‘honesty’ and ‘accountability’ that were said to have been so inviolable that the plaintiff was correctly dismissed for having breached them. It is troubling that all of the witnesses deployed by the defendant in order to advance sentiments of that kind seem to have no insight at all into the cruel nature of that irony."18

O’Meara J accepted Mr Elisha’s principal claim in contract, awarding almost $1.5 million in damages, but found that he failed in tort due to the absence of a duty as alleged, consistent with Paige.

9 Ibid [154]–[155].

10 Elisha v Vision Australia Ltd [2022] VSC 754 (13 December 2022) [1]–[6].

11 Ibid [18].

12 Ibid [8]–[41].

13 Ibid [48].

14 Ibid [63].

15 Ibid [147].

16 Ibid [226].

17 Ibid [238].

Appeal

Vision Australia appealed. On appeal, the Victorian Court of Appeal affirmed the trial judge’s findings as to contract, but held that damages for Mr Elisha’s psychiatric injury were unavailable for a breach as to the manner of his dismissal, in light of the principle in Addis and the remoteness of the damages. The Court of Appeal also rejected the existence of a duty in tort.19 Mr Elisha was ordered to repay the damages award with interest, and pay costs at first instance and most of the costs of the appeal.

High Court

And so the battlelines are drawn on appeal to the High Court. Is there a duty in tort for an employer to provide a safe system of investigation and decision-making in relation to its disciplinary processes (including possible dismissal)? And does Addis preclude recovery of damages for psychiatric injury resulting from wrongful dismissal which otherwise grounds a successful claim in contract?

Counsel for the appellant employee argues in written submissions that the so-called principle in Addis has been overstated and does not, in fact, preclude such damages, or, in any event, should no longer be followed. They also argue that a tortious duty of care should be recognised in relation to the disciplinary and dismissal process, and that the current limitation in contract and tort is incoherent and must be addressed. 20

Counsel for the respondent employer, conversely, argue that Addis is wellestablished law and should not be overturned, particularly given the statutory overlay – including the Fair Work Act – which has allowed for a proper balancing of the conflicting interests of employees and employers in this context. They warn of far-reaching consequences:

A conclusion to the contrary would frustrate the ability of contracting parties to secure certainty over the extent of their liabilities in the event of default. It would retrospectively disturb the allocation of risk in every existing contract of employment. Such an outcome would have significant consequences for the conduct of commercial enterprises.21

The respondent also argues that extending the existing duty of an employer to provide a safe workplace to cover disciplinary processes would lead to incoherence between tort law and contract and statutory employment law, and would be incompatible with the existing duty of care owed by employers to other employees. On this latter point, the respondent argues that an expanded duty of care would give rise to a tension in an employer’s need to discipline incompetent or misconducting employees where they are creating a source of danger to other employees (to whom the employer also has a duty of care).

The High Court’s ultimate decision in Elisha will be significant. Strong policy grounds cut in both directions.

Implications

The High Court’s ultimate decision in Elisha will be significant. Strong policy grounds cut in both directions, which is why the case will be one for employers and employment lawyers to watch with interest. But if the appellant’s case is accepted, it would reflect a notable development in the High Court’s understanding of the modern reality of the employment relationship, and the real and substantial impact that botched disciplinary processes can have on employees. As the appellant’s counsel argues in their submissions:

The result for which Mr Elisha contends does no more than place the employee on the same footing as any other contract ing party. There is no reason a person should be denied compensation for a psychiatric injury flowing from a breach of their employment contract, simply because the breach was of a promise by their employer as to the manner in which their employment could be terminated … And it is contrary to the social realities of the modern-day employment relationship. As Lord Hoffman [said] … “a person’s employment is usually one of the most important things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem.”22

18 Ibid [246]–[247].

19 Vision Australia Ltd v Elisha [2023] VSCA 265 (1 November 2023).

20 Adam Elisha, ‘Appellant’s Submissions’, Submission in Elisha v Vision Australia, M22/2024, 22 April 2024.

21 Vision Australia, ‘Respondent’s Submissions’, Submission in Elisha v Vision Australia, M22/2024, 22 May 2024.

22 Adam Elisha, ‘Appellant’s Submissions’, Submission in Elisha v Vision Australia, M22/2024, 22 April 2024, [38].

John Wilson and Kieran Pender

John Wilson is the managing legal director at BAL Lawyers. Kieran Pender is an honorary lecturer at the ANU College of Law and a consultant at BAL.

Ethics in Practice

Notions of honesty and candour are essential parts of lawyers’ duty to the administration of justice and to the court. Beyond that, the effective operation of the regulatory legislation depends on practitioners being honest and candid, as it depends on mutual respect and cooperation by practitioners.

The essentiality of these qualities can be seen throughout the entirety of the legal regulatory landscape. It can be seen right at the outset of a lawyer’s journey, in the context of admission. The admitting body is required to consider the suitability of applicants for admission. To that end, significant emphasis is placed on the disclosure by applicants of material relevant to the applicant’s suitability. This is readily shown by authorities dealing with applications for admission and re-admission and the statutory obligations on applicants to provide information or cooperate with the admitting body. Equally, non-disclosure of relevant facts can have serious consequences for a lawyer’s ability to join or remain in the profession.

The importance of these qualities does not diminish after admission. To take two examples, those qualities are vital in the context of the grant or renewal of practising certificates, and in the area of complaints and discipline.

In the former area, applicants for practising certificates (both initial and renewed) are subject to statutory obligations of disclosure, which require them to disclose matters that may affect their eligibility for the grant or renewal of a practising certificate or their fitness to practise.

These obligations exist because the applicant is in the best position to know and to address matters which might impact his or her fitness to practice.

This point was recently made by McWilliam J in LP9 v Council of the Law Society of the Australian Capital Territory [2024] ACTSC 116. In that decision, her Honour dealt with an appeal from timetabling orders in the context of an appeal from a decision by the Society to not renew a practising certificate. The question for

determination was, in essence, who should file their evidence first? Her Honour considered that the applicant should. Her Honour said at [35]:

‘[A]n applicant [for a practising certificate] is in the best position to know whether anything about their circumstances [relevant to their suitability to hold a certificate] has changed and that is reflected in the statutory disclosure obligations imposed upon applicants’.

Dealing with the obligation on practitioners to assist with inquiries into their fitness to practise, and the relevance of that obligation to the regulatory legislation generally, her Honour said at [46]:

I do accept, however, that it [ie. the obligation to assist] speaks to the broader purpose of the legislation, which is really that the LP Act regulates the ability of the legal

profession in the Territory to practise law, and the conditions on which such practitioners may do so. For the legislation to be effective, it is critical that legal practitioners adhere to the requirements to honestly disclose or bring forward anything that might be seen as affecting their standing as a fit and proper person to provide legal advice and represent their clients in court or in any other legal context. It is not for applicants to sit back and respond to any issues that may already be known by the Law Society. The Court’s evaluative task is very much informed by what the applicant has first disclosed.

Although it seems obvious to say, disclosure is a matter best addressed by the practitioner. Practitioners are in the best position to know, first, what events have occurred that may affect their standing or fitness to practise, and second, the significance of those events in terms of their fitness to practise.

Whether a particular infraction or infringement is relevant to a practitioner’s fitness to practise will be a matter of fact and degree. A range of factors can be relevant, such as (for example) the nature of the matter, its context or whether it is repeated.

Where there is doubt as to whether something should be disclosed, it is always better to err on the side of disclosure.

This is not only because a failure to disclose a relevant matter could sound in disciplinary sanction or impact the decision to renew a practising certificate, as was pointed out by McWilliam J in LP9 at [35], but also because full and frank disclosure is essential for a respectful and cooperative relationship with the regulator.

In the arena of complaints and discipline, the notions of honesty, candour, respect, and cooperation between practitioners and the regulator have continued (if not greater) importance.

This is acknowledged in the Rules, which require that practitioners be open and frank in their dealings with the regulator (see rule 43.1). It is also readily demonstrated by case law.

Lawyers, as officers of the court, have an ‘obligation to provide reasonable assistance in the conduct of [a disciplinary] inquiry, by reason of their position as officers of the court’: Council of the Law Society of the Australian Capital Territory v LP 12 [2018] ACTCA 60 at [56].

In the unreported decision of the Full Court of the Supreme Court of South Australia of Law Society of South Australia v Unkin (21 June 1996), Duggan J said that ‘the legitimate exercise by the [Law Society] of its statutory powers, particularly in matters affecting the protection of the public, calls for the respect and co-operation of the profession’.

The point was made more recently in Legal Profession Complaints Committee and Staffa [2020] WASAT 58, where the Tribunal said (at [14]):

In the Tribunal’s view, misleading, or acting with the intention of misleading the Legal Profession Complaints Committee is to be viewed as seriously as is misleading, or acting with the intention of misleading a client, court or Tribunal.

The Legal Profession Complaints Committee performs an important role in ensuring the regulation of legal practitioners, which is the purpose of the LP Act, pursuant to which the Legal Profession Complaints Committee is established. Unless practitioners’ duties of honesty and candour to the Legal Profession Complaints Committee is regarded in that way, its ability to effectively regulate the profession is undermined.

Practitioners are well placed to address matters that may affect their suitability to practice; they can, and should, put their best foot forward in those situations. If there is a defence on the merits, that should be advanced in an honest manner. Taking a hostile or confrontat ional approach is inconsistent with the practitioner’s duty to provide reasonable assistance, and indeed, undermines the quick and efficient operation of the regulator’s function. One needs to go no further than the joint judgment in Council of the Law Society of the Australian Capital Territory v LP 12 [2018] ACTCA 60 at [56] for insight as to the approach expected from practitioners in a disciplinary matter.

The comments in LP9 are a timely reminder of the importance of honesty, respect, and cooperation in the relationship between practitioners and the regulator, particularly in the context of disclosure and dealing with disciplinary matters.

John Solomon and James Page

John is a Managing Partner at Moray & Agnew. James is an Associate at Moray & Agnew.

The Elephant in the Room: Addressing unmet legal need

As unmet legal need continues to grow, concerns have mounted across the legal assistance sector at both a national and local level. Amidst calls for more support, funding under the federal government’s new National Access to Justice Partnership has now been announced. But will this funding be enough? As an introduction to this ongoing challenge, this article seeks to situate unmet legal need in the context of the attempts made to address it and renews calls for more funding in the ACT.

What do we mean by Access to Justice?

Access to justice is the cornerstone of a just society, where laws are created and enforced in a way that is accessible and equitable for all members of society. In practice, this means that individuals and communities have the ability to obtain fair, timely and effective legal recourse and remedies when their rights are violated or threatened.

Put simply, in the context of access to justice, the elephant in the room is the matter of meeting legal need.

‘Legal need’ arises when an individual is required to resolve an issue through an existing legal remedy.

• Legal need is met when an individual:

• Understands they have legal rights,

• Understands that a legal solution may exist, and

• Has the means to pursue this solution.

As such, when we refer to unmet legal need, we refer to a situation where an individual, most often a vulnerable member of the community already facing disadvantage:

• Does not understand they have legal rights,

• Does not understand that a legal solution exists, or

• Does not have the means to pursue this solution.

Addressing unmet legal need is crucial from a rights perspective — upholding the Rule of Law, and fundamental concepts of fairness and equality. Beyond the social justice impact, there are clear economic benefits as well, including less flow-on impact on other government services, such as health, social and housing services.

Background: The flow of resourcing

Over the last 50 years, Australian governments have increasingly focused their collective efforts to better meet unmet legal need in Australia. The most recent iteration of this is the National Legal Assistance Partnership (NLAP) 2020-25. In accordance with the National Strategic Framework for Legal Assistance (the National Strategic Framework), the NLAP aims to contribute to 'integrated, efficient, effect ive and appropriate legal assistance services' for those prevented from having their legal needs met.

Guided by the National Strategic Framework, the NLAP’s role is to provide Commonwealth funding for legal assistance services, as delivered by Legal Aid Commissions, Aboriginal and Torres Strait Islander Legal Services, Community Legal Centres and Family Violence and Prevention Legal Services. It does this both directly, through quarantined Commonwealth funding, and through the States and Territories to administer.

To determine the approach to legal assistance in the ACT specifically, the ACT Legal Assistance Sector Strategy (the Strategy) — a requirement under the NLAP — was implemented via the ACT Legal Assistance Action Plan (the Action Plan) in September 2022.

The Strategy, a joint effort on behalf of the ACT Government, key stakeholders, and community legal sector partners, seeks to frame the ACT Government’s approach to resourcing and aiding the ACT’s legal assistance sector.

In doing so, it aims to emphasise early intervention and ensure that vulnerable members of the community ‘get a fair go’ in the legal system.

As such, government funding focused on addressing unmet legal need in the ACT community is at the discretion of both the Commonwealth and ACT governments.

The call for more: Attention, funding, data

It is without doubt that many in the community, at both a national and local level, are in dire need of accessible legal assistance. From the lasting effects of Covid-19 to cost-ofliving pressures, multiple, compounding forces continue to disproportionately impact those already experiencing disadvantage in our community.

This is the context in which we find the legal assistance sector. Exacerbated by the challenges the community is facing, an increased volume of demand has placed significant pressure on the already resourcedstretched legal assistance sector.

The Final Report of the Independent Review of the National Legal Assistance Partnership (the Review) makes it clear that the NLAP and the current allocated funding at both a federal and state level, is inadequate for its purpose. Such was reiterated in an open letter from the Law Council of Australia, signed and supported by its constituent bodies— including the ACT Law Society—calling for more funding as the NLAP approached its conclusion.

The 39 recommendations arising out of the Review were directed at the immediate and longer-term needs of the legal assistance sector.

As a baseline, the Review recommended that both the Commonwealth and State and Territory governments provide more funding. How much, and where it should be directed, needs to be properly informed. Current data is failing to quantify the gap, as well as how and where funding should be directed. To support a more evidencebased approach, the Review recommended a regular Legal Needs Survey. Such data would allow better identification of the levels of legal need, and unmet legal need, allowing for targeted funding adjustments.

The Review also recommends a new funding model –one which would provide for the long-term, sustainable resourcing of the legal assistance sector. Beyond dealing with increased demand and complexity, the legal assistance

sector also faces mounting cost pressures in providing safe, holistic and culturally appropriate services. The current model, which ties funding to short-term terminating programs, does not provide sufficient or secure base funding. This severely limits the ability of legal assistance providers to attract and retain staff, invest in internal systems, and engage with the community.

Similarly – beyond funding – all policy, law reform and practice changes have the potential to make a significant impact on access to justice outcomes for the community. In making these changes, government must take the time to thoroughly consider their possible effects on the community, for example, by adopting the Review’s recommendation concerning Access to Justice Impact Assessments. In keeping access to justice at the forefront of reform, governments and the profession can begin to move closer to achieving access to justice for all.

New partnership and funding: The call continues

On 6 September 2024, the National Cabinet signed a Heads of Agreement for a new National Access to Justice Partnership that intends to provide an increase of nearly $800 million in funding over the five-year period from when the Partnership commences on 30 June 2025.

This comes as part of the $3.9 billion the federal government has announced it will invest in support of frontline legal assistance services, to be distributed by a new partnership agreement with the states and territories.

While welcomed by the legal assistance sector, this funding falls significantly short of the recommendations outlined in the Review.

Though the announcement has provided some muchneeded certainty to the legal assistance sector and some security for supporting access to justice services nationally, it is not enough.

As we enter another election cycle in the ACT, the ball is now in the court of the parties seeking to lead the ACT government over the next term. Many vulnerable people in the ACT community are only able to access the justice system through Legal Aid ACT and community legal centres and/or with the assistance of the pro bono (or "low bono") work of legal practitioners. What is critically needed is government investment in the capacity, capability and long-term sustainability of the legal assistance sector in the ACT, and a reduced administrative burden on the sector.

As highlighted in its Call to Parties (published in this edition of Ethos) the Society encourages all parties to continue working with the Commonwealth government towards ensuring that all the recommendations arising from the Review are implemented. If we are to address the unmet legal need in our territory, our parties must commit to ensuring the ACT legal assistance sector receives the ongoing support and resources it needs.

Call to Parties

In the lead up to the 2024 ACT election, the Society invited three major political parties contesting the ACT Legislative Assembly Election to provide their views on key issues of relevance to the ACT legal profession. You can find a complete copy of the Society's Call to Parties on our website, but we've summarised the key aspects for members below.

With input from its special interest committees, the Society identified a range of specific issues on which a response was sought in its 2024 Call to Parties. To guide parties, the Society offered background on each of these issues in local and crossjurisdictional contexts, outlining why these issues remain important to the ACT legal profession.

The issues concerned the following topics:

• Investment in statistics and research to inform policy making

• Drawing on the expertise of the ACT legal profession

• Protecting the vulnerable and upholding human rights

• Addressing the capacity, capability and long-term sustainability of the legal assistance sector

• Increased investment in key law and justice institutions

• Ensuring the ongoing effectiveness of key bodies of law.

The Society also asked that Parties provide an overarching commitment to:

• evidence-based policy development and decision making, underpinned by transparent processes and robust policy justification;

• upholding the rule of law, including promoting human rights and access to justice; and

• adequately resourcing and evaluating the implementation of policies.

You can read the Society's full Call to Parties here

Policy platforms now available

Members can view the parties' individual policy platforms below for more information:

• ACT Greens platform

• ACT Labor Party platform

• ACT Liberal Party Platform

Response

ACT GREENS

Q1. Will your party commit to this approach to policy development and decision-making, particularly in relation to the legislation governing the ACT?

Yes, the ACT Greens are a party committed to:

• evidence-based policy development and decision making, underpinned by transparent processes and robust policy justification;

• upholding the rule of law, including promoting human rights and access to justice; and

• adequately resourcing and evaluating the implementation of policies.

This approach is embedded in our policy platform and election initiatives, and it has been demonstrated by Shane Rattenbury’s approach as Attorney-General of the ACT.

Q2. How will your party invest in better statistics and research into criminal justice and related family and personal violence matters?

As noted above, the Greens support legislation, policies and programs that are evidence-based, as has been consistently demonstrated by our approach to legal policy issues. While different agencies in the ACT already collect data, we see value in exploring data gaps and better coordinating the capture and analysis of data. We would also like to explore improved mechanisms to make data readily accessible.

As Attorney General, Shane Rattenbury has established the Law Reform and Sentencing Advisory Council as one mechanism to improve data collection and analysis.

We are mindful of feedback from the legal sector, including the community legal centres, that they are already called upon to collect significant data which takes their resources away from providing their core services and we support ways to alleviate this burden, and it increase the capacity of the legal assistance sector directly (see below).

Q3. How does your party propose to draw on the knowledge and expertise of the legal profession in the ACT in developing and implementing law reform proposals?

The Greens value the legal sector and the relationship we have with the sector. As Attorney-General, Shane Rattenbury has sought to value of the knowledge and expertise of the legal profession, to personally meet regularly, and to improve the Government’s consultation with stakeholders, including the ACT Law Society, when developing and implementing law reform proposals.

Q4. How will your party support the finalisation and implementation of national policy initiatives to combat elder abuse?

We support this initiative and recognise their importance. As Attorney-General, Greens leader Shane Rattenbury worked through the Standing Council of Attorneys-General to progress national policy issues such as the Second National Plan to Respond to the Abuse of Older Australians, and addressing financial elder abuse and achieving greater consistency in laws for financial enduring powers of attorney. Former Greens member Caroline Le Couteur worked locally to advance improvements to elder abuse laws. Whether as members of the executive or crossbench, the Greens will advocate for the finalisation and implementation of these issues.

Q5. How will your party ensure a balanced approach to integrating the rights, needs and interests of victims in the criminal justice process, while upholding the core human rights of the accused?

The Greens recognise the importance of each of these issues as well as the importance of balancing them appropriately in the justice process. Again, this has been demonstrated by the Greens record in the Assembly of resisting politically motivated or non evidence based law reforms – eg “law and order” pushes that erode fundamental rights of the accused, afford unreasonable or unchecked power, or disproportionately impact on vulnerable people. We work closely with legal stakeholders, as well as valued institutions

like the Human Rights Commissioner, including the Victims of Crime Commissioner. As Attorney-General, Shane Rattenbury’s record demonstrates a balanced approach to integrating the rights, needs and interests of victims in the criminal justice process, while upholding the rights of the accused. He also has worked closely with victims, expanded restorative justice, introduced the Victims Charter, and extensive legislative reform, and overseen changes to processes and practices in ACT Courts that protect victims and vulnerable people.

Q6. How will your party work with the Commonwealth to progress the recommendations of the NLAP Report?

The Attorney General has been closely involved in this process and the Greens are committed to working with the Commonwealth to progress the recommendations of the NLAP Report as quickly as possible. The community legal assistance sector needs it, and it is vital to ensure that vulnerable people have appropriately resourced access to justice.

Q7. How will your party work to ensure long-term sustainable funding for the ACT legal assistance sector?

The Greens have always championed this sector, as demonstrated though our successive Parliamentary Agreements that have directly ensured more funding and support (including establishing Street Law, more funding injections to CLCs etc). We would continue to progress work at a ministerial level such as through the Standing Council of Attorneys-General to ensure the Commonwealth is providing the ACT legal assistance sector with the funding it requires. The Greens “Community Safety” election initiative specifically commits to providing funding certainty for Aboriginal Legal Service NSW/ACT, Canberra Community Law, Care Financial, Women's Legal Centre, Environmental Defenders Office and Legal Aid ACT by ensuring they receive continued base funding for four years. It also seeks to make an increased funding investment of an additional $10M across the sector over the next four years to ensure these agencies can provide legal services to those who most need it and can respond to the increasing need for their services and potentially fund innovations or additional programs..

The ACT Greens election commitment is also to provide free legal assistance to more Canberrans by raising the income threshold for eligibility for Legal Aid ACT grants to reflect income growth over recent years. This seeks to address the current gap in access to legal services for around 120 vulnerable members of the ACT community per year who are ‘too rich’ to qualify for legal aid but ‘too poor’ to afford private legal representation.

Q8. How will your party work to increase investment in key law and justice institutions?

The Greens value these institutions and would seek to ensure appropriate funding that ensures they can operate effectively. Through Greens advocacy they have already received significant additional funding over many years including, for example, increased magistrate, coronial and supreme court resourcing.

Q9. How will your party address the current limitations on the transactions that can be processed by e-conveyancing platforms?

E-conveyancing is an important improvement and, in the ACT, Shane Rattenbury has been the relevant Minister (as Consumer Affairs Minister) who has worked with all states and territories to oversee its implementation. The expansion to all property-related transactions is an issue we support exploring and working towards in cooperation with other jurisdictions.

Q10. How will your party ensure the ongoing effectiveness of ACT laws?

We support the use of statutory review mechanisms when appropriate to ensure that our legislation is responsive, just and effective in meeting the needs of a changing society, as well as consistent and genuine consultations with stakeholders, including the legal sector.

Q11. Will your party commit to ongoing funding for the ACT Law Reform and Sentencing Advisory Council?

Yes. We value the input of experts, stakeholders and the community about law reform and sentencing in the ACT to ensure our laws are meeting expectations. As set out in the Greens Community Safety initiative, we will provide funding certainty until the end of the Parliamentary term for the Law Reform and Sentencing Advisory Council to continue to inform the Government about areas of potential law reform and provide expert advice on sentencing.

Q12. Will your party commit to considering review and reform of ACT succession laws?

We appreciate the ACT Law Society’s view that intestacy reform in the ACT is overdue and commit to considering review and modernisation of the legislation, as well as other areas of succession law.

Response CANBERRA LIBERALS

Q1. Will your party commit to this approach to policy development and decision-making, particularly in relation to the legislation governing the ACT?

The Canberra Liberals do, and will continue to, pursue evidence-based approach policy development and decisionmaking, uphold the rule of law and promote human rights and access to justice, and adequately resource and evaluate the implementation of our policies.

Q2. How will your party invest in better statistics and research into criminal justice and related family and personal violence matters?

The Canberra Liberals do not have a position on this but remain open to exploring opportunities to invest in better law and justice research.

Q3. How does your party propose to draw on the knowledge and expertise of the legal profession in the ACT in developing and implementing law reform proposals?

The Canberra Liberals have always, and will continue to, engage with the knowledge and expertise of the legal profession in the ACT when developing and implementing law reform proposals. The development and implementation of nation-leading ‘stealthing’ laws by Elizabeth Lee are evidence of this.

Q4. How will your party support the finalisation and implementation of national policy initiatives to combat elder abuse?

The Canberra Liberals will approach the national policy initiatives to combat elder abuse in a collaborative and coordinated manner to ensure that all jurisdictions work together to address elder abuse and that Canberra’s elderly are suitably and sufficiently protected from abuse.

Q5. How will your party ensure a balanced approach to integrating the rights, needs and interests of victims in the criminal justice process, while upholding the core human rights of the accused?

The Canberra Liberals acknowledge that the criminal justice system has varying impacts on many different stakeholders, which is why the human rights enshrined in the ACT’s human rights legislation are so important. We will ensure that the judiciary’s independence is promoted and work with justice agencies, especially the Human Rights Commission and its entities, to appropriately manage how victims of crime engage with the criminal justice system.

Q6. How will your party work with the Commonwealth to progress the recommendations of the NLAP Report?

The Canberra Liberals will work in a collaborative and coordinated manner with the Commonwealth to consider the NLAP Report recommendations and progress those which provide a benefit to the ACT legal assistance sector and broader Canberra community.

Q7. How will your party work to ensure long-term sustainable funding for the ACT legal assistance sector?

As above, the Canberra Liberals will work in a collaborative and coordinated manner with the Commonwealth to consider the NLAP Report recommendations and progress those which provide a benefit to the ACT legal assistance sector and broader Canberra community.

Q8. How will your party work to increase investment in key law and justice institutions?

The Canberra Liberals welcome the opportunity ensure that the ACT’s law and justice institutions are appropriately resourced to ensure the efficient and effective delivery of legal and justice services to our community. As part of our Make Our City Safer policy package, we have announced a significant resourcing increase to ACT Policing. We welcome the chance to review and restore the resourcing capabilities

of the ACT Courts and Tribunal and other law and justice institutions.

Q9. How will your party address the current limitations on the transactions that can be processed by e-conveyancing platforms?

The Canberra Liberals do not have a position on this but remain open to exploring opportunities to make e-conveyancing platforms and processes as effective, efficient and consumer-friendly as possible.

Q10. How will your party ensure the ongoing effectiveness of ACT laws?

The Canberra Liberals will ensure the ongoing effectiveness of ACT laws by prioritising consultation with the legal profession, the judiciary, the police and the community. Consultation with stakeholders who deal with such matters on a regular basis possess the knowledge, experience and

Response

ACT LABOR

expertise to help guide government to maximising the effectiveness and efficiency of laws.

Q11. Will your party commit to ongoing funding for the ACT Law Reform and Sentencing Advisory Council?

The Canberra Liberals will examine the work that the Council has completed so far in the dangerous driving space and make a determination into whether ongoing funding is appropriate based on the work that they have published and remains in development.

Q12. Will your party commit to considering review and reform of ACT succession laws?

The Canberra Liberals will consider the necessity and urgency to review and reform ACT succession laws in line with amendments or reform of succession frameworks in other jurisdictions to ensure legislative harmony and best practice are up-to-date.

Thank you for submitting your questionnaire for political parties in preparation for the 2024 ACT election.

ACT Labor will continue to champion a justice system that is accessible, efficient, and transparent; and introduce laws which are evidence-based, human rights compatible and balanced. ACT Labor will also use a trauma-informed approach to guide any legislative reforms to the justice system. ACT Labor is committed to progressing restorative and rehabilitative programs as part of a justice response.

We are proud that the ACT was the first jurisdiction in the country to establish a Human Rights Act. Our human rights culture has evolved and grown so that it is central in all our decision making. We have added additional rights as our community has grown and changed and supported the Human Rights Commission to implement them.

A more comprehensive snapshot of ACT Labor's policy platform is now available on the ACT Labor website, highlighting our achievements and the policies we will implement as part of our plan. A re-elected Labor government will continue to develop and implement progressive, nation-leading social policies that directly improve people's lives.

We look forward to continuing to work with you.

Towards a more inclusive ACT

Recent amendments to the Discrimination Act 1991 (ACT)

For over 30 years the Discrimination Act 1991 (ACT) (the Act) has served to make certain kinds of discriminatory treatment unlawful and to promote the recognition of the principle of equality. Since its introduction, the ACT legislation has been amended over 60 times in an effort to improve protections and expand recognition in light of the changing expectations of our community. The amendments have also aimed to clarify the law and reduce gaps arising from its overlap with the federal legal framework. These efforts are particularly important in the ACT, where there is a human rights legal framework and a commitment to its realisation.1

The most recent amendments took effect on 11 April this year. These amendments expand the areas of public life which the Act covers and narrows some of the exceptions, meaning that the scope of unlawful discriminatory treatment has increased. This is good news, as it offers avenues for redress for more people who have been discriminated against. This is important for lawyers to know about, not only as members of the ACT community who may experience discrimination, but also on behalf of clients who might want to raise concerns about discriminatory treatment.

Even more significantly, there are amendments that have introduced two new ‘positive duties’ to the ACT. Like the positive duties that have already been introduced in the Commonwealth, Victoria and the Northern Territory,2 these amendments create a positive obligation on individuals, businesses and organisations in the community to prevent discrimination in the first place. This is a considerable reorientation in how discrimination law operates, as the amendments encourage individuals and entities to take proactive steps to be more inclusive.

This short update will outline these recent changes to the Act, what the positive duties mean and how to plan to meet the obligations arising under them.

Expansion of areas of public life

Generally, discrimination is unlawful in the ACT where it

a. meets the definition of discrimination because of

b. a protected attribute and occurs in c. an area of public life recognised by the Act and

d. where no exception applies.

Previously, the areas of public life included: work/employment; educat ion; access to premises; goods, services and facilities; accommodation and clubs.

These areas are still covered, but they have been expanded to include:

• Voluntary organisations and unlicensed clubs (s 31)

• (Formally organised) sporting activities (s 23A)

• (Formally organised) competitions (s 23B)

• Administration of Territory Laws: Programs and Policies (s 23C).

The addition of ‘administration of Territory laws, policies and procedures’ is a significant change, as previously the administration of Territory laws was explicitly excluded as an area of public life from the Act. Despite its addition, some qualifications remain, such as: the privilege over parliamentary proceedings and decisions of ACT courts when acting in a judicial capacity. It will, however, cover the actions of courts that are made in an administrative capacity, such as hiring court staff.

Some exceptions narrowed, including through the introduction of a new test

Many of the existing exceptions continue to operate, however several amendments have refined the scope of some of them.

A number of exceptions have been amended as follows:

• Domestic accommodation – the exception for the provision of accommodation by a religious body has been incorporated into religious bodies exception

• Insurance and superannuation – s 28 (2)(a) and (b) have been added to require use of data and facilitate consumer access to that data

• Religious bodies – s 32(1)(d) – (g), (2), (3) has been added to require publication of policies outlining discriminatory measures, and to remove the operation of the exception in the area of goods, services or facilities in relation to enrolment of school students and employment in schools

• Genuine occupational qualifications – s 33B has been moved and applies to more protected attributes

• Inherent requirements of employment – s 33C has been moved and applies to more protected attributes.

In addition, a new test has been added to a selection of the existing exceptions to further narrow their operation. The new test introduces an additional step after establishing that discriminatory treatment falls within the exception. The new test requires a consideration of the operation of the exception, in particular, whether the basis of the discrimination is ‘reasonable, proportionate and justified in all the circumstances’. This test echoes the requirements for limiting human rights under section 28 of the Human Rights Act 2004.

For the purposes of the new test in the Act, an application of an exception might be assessed as reasonable if it is objectively designed to meet a legitimate and important aim based in logic and supported by evidence; proportionate if it is necessary, suitable, appropriate and adapted to achieving the aim, and is the least restrictive way possible to achieve the aim; and justifiable if it is applied in good faith, in line with the values of equality and human rights and community standards.

The exceptions to which the new test applies includes the following:

• Domestic duties when provided at home (s 24)

• Insurance and superannuation (s 28(2)(c))

• Clubs and voluntary bodies (s 31)

• Genuine occupational qualifications (s 33B)

• Inherent requirements of employment (s 33C)

• Sporting activities (sex) (s 41)

• Sporting activities (disability) (s 51(1)).

The introduction of the new test means that even when an exception may apply, the new test requires a contextual and outcomes-based analysis to assess whether, the application of the exception is reasonable, proportionate and justified in the particular circumstances.

The introduction of new positive duties

The amendments have also introduced broad positive duties. The positive duties will enter into force on different dates as explained below.

The positive duty to make reasonable adjustments.

The positive duty to make reasonable adjustments has expanded to include all protected attributes. This positive duty is now in force for all individuals, organisations, and public authorities when acting in areas of public life covered by the Act.

Previously the reasonable adjustments requirement applied to accommodate the needs of a person with a disability. This required for example, businesses to ensure their premises were accessible to a person relying on a mobility aid, and to make reasonable changes to premises – for example by widening shop aisles. This duty applied to the extent that it did not cause ‘unjustifiable hardship’. That is, some adjustments in some contexts might be unfeasible or impracticable.

The expansion of the duty to all protected attributes promotes flexibility and systems change. It challenges employers or managers to think about how they can do things differently in the interest of better serving a diverse community. What may cause ‘unjustifiable hardship’ in making a reasonable adjustment will depend on such things as: the nature and size of the business or organisation, the benefit or detriment likely to be experienced by affected person and the organisation, the protected attributes of the affected person and the practicability and cost of making adjustments.3

An example of a reasonable adjustment in the education context might look like modifying assessments and teaching styles for children from different cultural or religious backgrounds or providing flexibility in administrative arrangements for families experiencing family violence. For non-government service providers this might look like different ways of delivering documents to people experiencing homelessness, or providing alternatives to the use of apps for service delivery.

Importantly, failure to make reasonable adjustments is an unlawful act.

The ACT Human Rights Commission (the Commission) can receive complaints about a failure to make reasonable adjustments; and can also investigate issues under its own motion powers. These complaints can be investigated, conciliated and potentially referred to the ACT Civil and Administrative Tribunal (ACAT) for determination.

The (new) positive duty to eliminate discrimination, sexual harassment and vilification.

A key change, applying with a staged commencement is the positive duty to eliminate discrimination, sexual harassment, and vilification. This requirement will apply to public authorities and people with organisational control of those public 3

authorities from 11 April 2025, and then to businesses, non-government organisations and clubs and voluntary bodies from 11 April 2027.

Although discrimination, sexual harassment and unlawful vilification is already against the law and employers can be held vicariously liable,4 the positive duty requires entities to take reasonable and proportionate steps to eliminate those actions.

As such, the new duty goes further to embed proactive culture change within organisations to address the conditions or circumstances which may give rise to harmful conduct.

The positive duty does not apply where an exception under part 4 of the Act applies. This means that for example, there is no expectation of a religious educational institution taking steps to prevent discrimination on the basis of religious conviction in relation to employment or work in the teaching or practice of that religion.

Positive duties – why and how?

The intention of these positive duties is to shift the focus of prevention to organisations that provide services to the public, rather than expecting individual complainants to have the capacity to make complaints.

As has occurred with the positive duties already operating in Victoria and at the federal level, the Commission will now also adopt a similar approach to monitoring compliance with the positive duty, assessing the level of focus placed on building awareness and capability, and responding proactively to potential issues within organisations.5

The scope of the duty will depend on the nature and size of the business or organisation, the resources or budget available, its operational priorities and the practicability and cost of steps. For example, they might:

• Review learnings from any discrimination or other complaints that have emerged in the past and track implementation of resultant recommendations

• Consider what discrimination might be presently experienced by those accessing their services/working in the organisation

• Understand and consult on issues customers, consumers, clients or employees might have in accessing services

• Review and analyse existing policies to see whether they provide for reasonable adjustments or have actions in place to eliminate discrimination, sexual harassment or vilification

• Implement strategies to improve delivery of services, goods or practices to improve reasonable adjustments or reduce discrimination, sexual harassment or vilification

• Monitor and evaluate the success of any strategies or changes made.

As an impartial and independent statutory authority, the Commission will continue to receive and review complaints from members of the community raised under the Act and assist people to resolve the complaint where possible. If the resolution of a complaint is unsuccessful or not possible, complainants have a right to be referred to ACAT for the determination of their complaint.

While a breach of the positive duty to eliminate discrimination, sexual harassment and vilification is not itself considered an unlawful act, the Commission, and ACAT are empowered to consider the extent to which the duty is being met when dealing with

any discrimination, sexual harassment or vilification complaint about the organisation. This would include consideration of the duty in relation to any Commission-initiated complaint under the Human Rights Commission Act 2005 provisions – meaning that there is scope for general oversight of compliance with the duty in relation to organisations or sectors that are identified as having systemic or cultural problems with discrimination or harassment.

Alex Jorgensen-Hull and Dr Anne Macduff

Alex is a Legal Advisor at the ACT Human Rights Commission and Anne is a Senior Conciliator and Review Officer at the ACT Human Rights Commission

5

The loneliest profession:

CONNECTION AS THE FIRST STEP IN COMBATTING MENTAL HEALTH CHALLENGES IN THE LEGAL SECTOR

When contemplating mental health challenges within our legal community, the wisdom of American anthropologist Margaret Mead springs to mind: “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it is the only thing that ever has.”1 If we draw from Mead's belief in the power of collective action, we might come to the conclusion that addressing social isolation and fostering a sense of belonging within the legal community is not just an individual concern, but a collective responsibility. With Mead’s words in mind, we can understand that coming together to support one another may be our best chance at combatting the mental health challenges currently faced by legal professionals.

THE EFFECTS OF SOCIAL ISOLATION

Understanding the detrimental impact of social isolation on mental health is crucial to understanding the mental health crisis within our legal community. Research shows that being socially isolated can be detrimental to your mental health, with one report from 2010 finding that people who were socially disconnected had a higher risk of early death than those who drank, smoked or were obese.2

Establishing meaningful connections has been found to safeguard an individual’s health. The power of connectedness has been found to be at least as good for your health as quitting smoking or engaging in regular exercise.3 It also has been shown to improve recovery from mental and physical ailments and promote personal resilience to stress and change. 4 Being part of a community has also been shown to reduce blood pressure, lower cholesterol, reduce the risk of obesity, and increase the likelihood of regular exercise and eating a healthy diet.5 This underscores the urgent need to prioritise initiatives that promote social connection and a sense of belonging.

WHAT DOES IT MEAN TO BE SOCIALLY CONNECTED?

Connectedness has been found to require something more than having many friends or being popular.6 Rather, research has determined that the most important and enduring health benefits of connectedness is derived from belonging to groups.7 For a legal professional, this highlights the importance of not merely being a passive member of a subgroup, but actively engaging with the community.

Being part of a subgroup is a starting point, but true benefit comes from actively participating, contributing, and forming meaningful connections within that community. This involvement can provide crucial support, understanding, and resources to navigate the challenges inherent in a legal career.

Edward Maibach, Jeni Miller, Fiona Armstrong, Omnia El Omrani, Ying Zhang, Nicky Philpott, Sue Atkinson, Linda Rudoph, Josh Karliner, Jennifer Wang, Claudel Pétrin-Desrosiers, Anne Stauffer, Génon K. Jensen, ‘Health professionals, the Paris Agreement and the fierce urgency of now’ (2021) 1 The Journal of Climate Change and Health 100002 Elsevier.

2 Alexander Saeri, Chris G Sibley, Fiona Kate Barlow, Sam Stronge and Tegan Cruways, ‘Are you part of a social group? Making sure you are will improve your health’ The Conversation (Online journal, 6 September 2017) (link).

3 Ibid.

4 Ibid.

5 Ibid.

6 Ibid.

7 Ibid.

Your personal contribution to the community not only enhances your individual well-being but also plays a pivotal role in the overall welfare of the community. By actively engaging and contributing, individuals foster a sense of interconnectedness that promotes collective growth and resilience. Similarly, acknowledging the contributions of others within the community underscores the reciprocal nature of support, and emphasises how each person's efforts contribute to the entire community. In this way, a thriving community is built upon the foundation of mutual support and collaboration, where the well-being of individuals and the community are deeply intertwined.

From an anthropological and sociological point of view, the need to be genuinely connected and have a sense of belonging to a group is unsurprising. Humans are innately social animals, and humankind has sought to develop communities since the earliest of times. Throughout history, humans have thrived by forging bonds within communities, innately understanding the profound significance of social cohesion in shaping our collective identity and well-being. This is because of the many benefits that communities offer, such as fostering a sense of connection and belonging, nurturing personal and collective identity, ensuring safety and support for members, and presenting avenues for learning, leadership, and catalysing change.8

WHAT CAN THE LEGAL PROFESSION DO?

For members of the legal community, this domain of research holds particular relevance. It has been suggested that lawyers are the loneliest of all professionals.9 This notion likely arises from various factors inherent in the legal profession, such as the competitive nature of the field, long hours, high-pressure environments, and the emotional toll of dealing with contentious issues and conflicts. Similar commentary has also been made of the isolation that exists within the judiciary 10 and throughout law schools11. Therefore, there is a substantial and immediate personal advantage for individuals within our legal community, spanning from law students and paralegals to lawyers, barristers, judiciary, and legal academics, to actively engage in their community. Doing so not only cultivates their personal connectedness but also fosters a sense of belonging, benefiting both themselves and others.

However, there are three important caveats to note here. First, your connection to a community may manifest differently from the next person, but the uniqueness of each bond is inconsequential in the grander scheme of communal support and belonging. Secondly, it is not being suggested here that forming a genuine connection with a community is the panacea to the mental health challenges that plague our legal community. Rather, research suggests that there is a positive and multi-faceted health benefit available to those that do make a genuine connection with others in a community, and that this connection and sense of belonging may offer some level of protection to those things which may adversely impact mental well-being. Thirdly, personal benefits will be realised from a genuine connection with any joined community (such as charity, community group, sporting club, religious community and so on). However, and in light of the vast array of legal

sub-communities12 that exist here in the ACT, there are further compelling professional reasons to be active within our legal communities, in addition to the personal wellbeing and social gains. Whilst a detailed analysis of these broader gains is beyond the scope of this article, a cursory glance of the benefits that a supported legal community brings to the broader community are clear.

So, next time you find yourself connec t ing with one of the many communities you are likely a part of, take a moment to reflect on the depth of your connection and sense of belonging. It's natural to have varying levels of engagement with different groups, given the constraints of time and energy. However, if you sense a lack of profound connection and belonging within your communities, consider the potential benefits of investing more time and effort into fostering those connections. Professor Mead’s sentiment underscores the transformative power of genuine connection and collective action. By nurturing authentic connections within our communties, we not only enrich our own lives but also contribute to the creation of a supportive and resilient environment for all.

Scott Pearsall and Gina Nott

Scott is the University Registrar at the ANU, an Adjunct Associate Professor at the UC and former legal practitioner. Gina is the Solicitor to the ACT Integrity Commission. She is also a Special Adviser (Conduct and Appeals) at ANU and has taught at UC. Prior to commencing with ACTIC Gina was A/Deputy Director of the Commonwealth Director of Public Prosecutions.

8 Tyler J VanderWeele, ‘Better Together: How We Can Build Connected Communities’ Psychology Today (Online journal, 21 September 2023) (link).

9 Debra Cassen Weiss, ‘Lawyers rank highest on “loneliness scale”, study finds’, ABA Journal (Online journal, 3 April 2018). (link)

10 Hon Justice Michael D Kirby, ‘Judicial Stress’ (1995) 13 Australian Bar Review 101, 105.

11 Podcast 59: Conquering loneliness in law school’, Law School Toolbox (17 August 2016) (link)

12 There are, for example, numerous legal sub-communities available through the Law Society of the ACT, including various committees and members groups. podcast-episode-49-conquering-loneliness-in-law-school/>.

The Voice of the Child THE RECENT FAMILY LAW ACT AMENDMENTS

Family law is one of the broader areas of law in terms of the wide range of the community it engages. However, there is an oft-overlooked subsection of that community that in many instances goes without a say. This article outlines how the recent amendments to the Family Law Act 1975 (Cth) address the crucial need for children and young people’s voices to be heard in family law matters and parenting disputes.

Background

In 2003, the Australian government established a Royal Commission into parenting arrangements in the event of family separation called “Every picture tells a story”. The Royal Commission was established following the publication of the Pathways Report in August 2001, which concluded that within the family law system, there was insufficient focus on the best interests of the child or childinclusive practices in family law services. It also found that there was insufficient assessment of the various needs of separating families and too much adversarial behaviour within the family law system.

After a thorough investigation, the Commission’s recommendations included that Part VII of the Family Law Act 1975 (Cth) be amended to create a clear rebuttable presumption in favour of shared parental responsibility. The intended meaning of this presumption was for each parent to have an equal say in major decisions regarding children’s lives.

Research undertaken in 2018 by the Australian Institute of Family Studies investigated the experiences and needs of young people whose parents had separated and had accessed the family law system. The Children and Young People in Separated Families project was then commissioned and funded by the Australian Government AttorneyGeneral’s Department.

The research demonstrated several factors regarding the child’s experience of family separation and divorce:

• Most children and young people involved in the study (76%) wanted parents to listen more to their views about parenting arrangements and the separation more generally.

However, it has been misinterpreted to mean that both parents should have equal care for the child. Moreover, despite the terms of reference requiring the Commission to regard the child’s best interests as being the paramount consideration for the Court, none of the Commission’s recommendations included giving the child an opportunity to express their views or involving them in the post-separation process.

• Children and young people sought support from parents and others as they processed the change in their living circumstances and relationships. They wanted their views to be taken seriously by family law and related services, particularly when safety concerns were raised.

• More than one-third (38%) of participating children and young people described wanting ongoing communication with parents and

others to understand more about what was going on in the post-separation context. They indicated they would like to be kept informed regarding various aspects of the legal process.

• Overall, most young participants were dissatisfied with either their level of input to, or awareness of, the decision-making process or the final parenting arrangements. In contrast, children and young people were more likely to describe themselves as directly benefiting from post-separation counselling and, more commonly, they reflected positively on the support they received from counsellors.

The findings of the Children and Young People in Separated Families project suggest a Child Inclusive approach be adopted incorporating these features of effective professional practice. Child-inclusive approaches should:

• facilitate children's and young people's participation in decision-making processes

• keep them independently informed about these processes

• provide clear and accurate explanations of decisions made

• provide access to ongoing therapeutic support and assistance as required

• allow the flexibility to change parenting arrangements and have ongoing and meaningful communication.

While further research may inform the development of professional practice and service delivery specific to particular judicial, legal and non-legal professionals and service providers, a commitment to this approach would be an important step towards meeting the loud and clear calls from participating children and young people to ‘give children a bigger voice, more of the time’.

The recent amendments to the Family Law Act 1975 (Cth) which commenced on 6 May 2024 sought to shift the focus from equal shared responsibility to the best interests of the child, allowing a more nuanced evaluation of each family situation.

What amendments have been made to the Family Law Act 1975 (Cth) in relation to seeking and understanding the views of the child?

Recent amendments include the requirement for the Independent Children’s Lawyer (ICL) to meet with the child and provide them with an opportunity to express any views relating to the family law proceedings (S 68LA(5A)). The ICL will determine the frequency of these meetings and opportunities for the child to

express views (s 68LA(5AA)). The ICL is not required to perform this duty if:

• the child is under 5 years of age

• the child does not want to meet with the ICL

• there are exceptional circumstances that justify non-performance of this duty, such as this meeting having an adverse effect on the well-being of the child (ss 68LA(5B) and 68LA(5C)).

In the explanatory memorandum, the Attorney-General Mark Dreyfus noted that in circumstances where the child may wish to express a view but not meet with the ICL, the ICL should arrange for an alternative method for the child to communicate their views, such as through a letter or electronic communication. Indeed, if there are exceptional circumstances and the ICL does not propose to meet with the child, then an application to the court for an order for dispensation from this requirement will likely be necessary.

For ICLs, one thing to consider is the potential for push back from lawyers who are representing the parents about how the views of the child are communicated to the court by the ICL, especially if the views do not align with one parent. While we do not know how the court will deal with one parent wanting to cross examine the ICL or make submissions that the views expressed by the ICL are not in proper form, the concern is if the legal

profession tries to limit how the views can be provided to the court, then we will not achieve the purpose of the amendment.

Amendments to s 60CC of the Act modify the general and additional matters that the court must consider when determining what is in the child’s best interests. The superseded version of the Act required the court to consider the benefit of the child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The amended version emphasises the unique needs and opinions of the child. S 60CC(2) requires the court to consider the following matters:

a. what arrangements would promote the safety of the child and each person who has care of the child;

• This includes whether there is a history of family violence, abuse or neglect involving the child or a person caring for the child and whether there is or has been an FVO in place.

b. any views expressed by the child;.

c. the developmental, psychological, emotional and cultural needs of the child;

d. the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;

e. the benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child;

f. anything else that is relevant to the particular circumstances of the child.

The Attorney-General noted that the requirement under s 60CC(b) to consider any views expressed by the child recognises children’s agency and their right to be heard in proceedings that affect them. The child may wish to express general views about their home situation, relationships with family members, or more specific views regarding time arrangements with each parent. The ICL may then determine the weight to be given to a child’s views when making a submission to the court, but they are also not under an obligation to disclose all information communicated by the child if they consider that this would not be in the child’s best interests.

Additionally, s 60CC(3) outlines that, where relevant, the court must consider the child’s right to enjoy Aboriginal or Torres Strait Islander culture and the impact that any proposed parenting order will have on this right. This section aligns with Australia’s obligations under Article 30 of the UN Convention on the Rights of the Child, which enshrines children’s right to enjoy their own culture and learn and use the language and customs of their families.

These amendments highlight that family law in Australia is shifting the focal point from ‘equal shared responsibility’ to a ‘best interests of the child’ focus, which will result in more nuanced outcomes and orders that reflect the unique circumstances of each family situation.

What is Child Inclusive Mediation?

Child Inclusive Mediation (CIM for the purpose of this article) is a process in which the child can express their views for consideration by the parties and mediator in a safe space when mediating to try to reach a mutually beneficial outcome regarding future parenting arrangements. CIM is a short, purposeful intervention; usually a ‘one off’ meeting with the child that captures the child’s thoughts and feelings at the time of the family dispute resolution. This should not impede other interventions. In CIM there are typically two main professionals involved, one being the mediator, who is conducting the mediation process and assessing suitability for family dispute resolution. The second is an independent child specialist, who is assessing the suitability of the child’s engagement, and who will be meeting with the child and later providing feedback to the parents.

Children have many different stories to tell depending on the question or task they are engaged in. Like the recent amendments, this process supports children’s rights under Article 12 of the Convention to provide their opinion on matters concerning them. CIM differs from forensic models and investigative interviewing.

CIM is not an opportunity for allegations to be put to the child, or a situation in which a report will be produced to then be utilised by the parties in support of a particular position. Rather, CIM seeks to facilitate parenting capabilities, aid children’s adjustment to the new family dynamic and enable child-focussed decision-making. It provides parties with an opportunity to process and understand the child’s

individual experience and how their own behaviour in conflict with the other party may be affecting the child. This approach encourages parents to create a child-focussed positive change and approach negotiations in a less adversarial manner.

The goal of CIM is to create care arrangements that are beneficial for the child and workable for the family. It is a safe and neutral way to incorporate the voice of the child into the legal process and enable parents to understand how the separation process is directly impacting their children. Parents and children experience a level of trauma when undergoing separation, and therefore, when parents are not aware of their children’s experiences, it is not necessarily that they are ignoring the child; rather, so much is happening that it can be challenging for the parents to consider all issues and multiple perspectives.

This process helps parents re-align with their role as parents rather than litigants.

Lawyers and mediators must consider whether the parents have capacity to hear and consider the child’s views. If the parents do not, then inviting children to participate in the process is futile. Outside of a court ordered process, each parent needs to provide consent to the CIM process, understanding that the child is meeting confidentially with the practitioner. The child also needs to provide consent, and given confidentiality, can express what they want shared with their parents and what they do not. It will then be up to the practitioner to compel parents to meet their children’s needs and expectations where appropriate. Feedback from the practitioner regarding the child’s experience can often be contrary to the positional views of the parents. This is, again, where a skilled practitioner can assist in influencing parties in contemplation of a more child focused decision, rather than those entrenched in parental rights.

There has been debate as to whether the outcomes of CIM are more satisfactory or sustainable than other dispute resolution methods. Parents’ willingness to implement a set of agreements is generally increased if they understand how this will positively benefit the child. There are also ways parents can consider the voice of the child ‘in the absence of the child’. The voice of the child can be brought into family dispute resolution in court-based dispute resolution, or indeed private mediation, for example, with the benefit of a child impact report/family report, or the involvement of a child expert in the event itself, to keep the parties childfocused. Alternatively, the Court Child Expert can provide guidance or feedback to the parties about how to meet their child’s needs when they are developing care arrangements. Therefore, if parties can gain certainty regarding the children’s opinions, and these are then reflected in the agreed parenting arrangements, there will likely be fewer issues with compliance. This reduces parties’ need to re-engage lawyers to establish new care arrangements, saving legal costs and preventing further emotional burden from extensive legal proceedings.

When Child Inclusive Mediation is the right option

There are situations in which CIM may not be the best option, for example, where it might comprise the safety of the child, especially in cases of significant family violence. There are several considerations that should be noted regarding CIM that may alter its suitability for different situations:

• It is not an investigative process where allegations are raised,

• No report or written material is provided, as it is a confidential process within Family Dispute Resolution

• Like Family Dispute Resolution, it requires a screening process.

However, if parents are child-focussed and receptive to the inclusion of their children, CIM should be considered as a preference to standard family dispute resolution.

CIM also presents advantages for legal practitioners, who are likely to be relieved that the instructions they are receiving are child-focussed, allowing them to instead focus their efforts on assisting their client to develop creative proposals that meet the specific needs of the children. For instance, if in consultation the child expresses that their main concern is what will happen to the family dog, the lawyer can facilitate the dog being a part of the proposed care arrangements. With the child-focused lens in place, it may be easier to engage in meaningful conversations with clients about the realities their child is facing and challenge views or instructions that clearly do not align with the child’s best interest.

In other forms of mediation, there is often an issue of duplication, where a child may have to retell their story to different professionals, ultimately having a negative impact if they are not made to feel safe. Children often have few platforms where they are invited to confidentially and safely share their thoughts, feelings and experiences within a changing family environment during separation. The opportunity to do so is generally a benefit in itself. Most children are apprehensive to discuss private family information in the context of a disagreement between parents. However, through CIM, a skilled practitioner can safely and consensually invite the child to feel empowered and participate in the process. Often, children will receive information from the practitioner about dispute resolution, parents and lawyers’ roles and responsibilities. This information can be transformative for children as they process the strategies engaged to resolve conflict themselves. Children can participate in as much or as little of the process as they feel comfortable. Even through limited participation, a child will still feel validated, acknowledged, empowered and regarded as being important enough to be invited to the process. Most children feel very positive about the process and opportunity even if they were initially ambivalent. As such, we need to avoid repetition of processes that are stressful or traumatic for children. As long as the purpose, roles and responsibilities of practitioners are clear, multiple interventions are not automatically negative. CIM may elicit emotions including being upset from the enquiry of thoughts and feelings, but this should not also be assumed to be a negative. Those conversations can be the catalyst for further support recommendations for the child and parents.

Moving forward

These recent amendments to the Family Law Act 1975 (Cth) highlight the importance of listening to the child’s voice. CIM supports the view that children have a right to be heard in a safe space when determining their care arrangements, what is in their best interests and, thus, what future care should be in place. Moving forward, this process will require inter-disciplinary collaboration between psychologists, child consultants and lawyers to ensure that the voice of the child is seamlessly incorporated into family law proceedings, for the benefit of both children and parents.

Debra Parker

Debra is a family lawyer and a dispute resolution practitioner based in Canberra. She has a double Specialist Accreditation from the Law Society of NSW in both family law and dispute resolution, an accredited collaborative lawyer, and a trained Family Dispute Resolution Practitioner as described by the Attorney General’s Department. Debra is also the Chair of the Collaborative Law Practice Group in Canberra and Chair of the ACT Law Society’s Dispute Resolution Committee. This article also recognises Chloe Green, a law student at ANU, and Chanel Hughes of Chanel Hughes Mediation & Consultation who assisted in researching and formulating the article.

As a member-based organisation, the Society understands that members may have questions or concerns that they want addressed promptly. Member Connect has been established so members or their supporting staff can get in touch with the Society through a dedicated email address and phone number. Whether they have questions about their membership, need help with a particular issue, or just want to get more information about the Society, Member Connect is there to help.

If you're a member of the Society or a member of supporting staff and want to get quick and easy access to the help and support you need, be sure to take advantage of Member Connect.

WRONGFUL CONVICTIONS IN AUSTRALIA

Addressing issues in the Criminal Justice System

A Book Review by Max Haesler

MAX HAESLER IS A CRIMINAL LAWYER AT HUGO LAW GROUP AND A MEMBER OF THE ACT LAW SOCIETY’S CRIMINAL LAW COMMITTEE.

It has been a long-standing tradition of our common law system that those participating, even at the highest positions within the appellate jurisdiction, have been compelled to contribute to an ongoing discourse which engages critically with the system’s methods, procedures, and outcomes both privately, in academia, and in published decisions.

In a 1958 decision, Justice Robert H Jackson succinctly observed of the Supreme Court of the United States, “[w]e are not final because we are infallible, but we are infallible only because we are final.”1 In Australia, in response to an observation by a fellow attendee at a dinner party that ‘it must be wonderful to dispense justice’, Sir Owen Dixon, who sat as the Chief Justice of the High Court of Australia between 1929 and 1964, has been reported to have responded:2

I do not have anything to do with justice... I sit on a court of appeal, where none of the facts are known. One third of the facts are excluded by normal frailty and memory; one third by the negligence of the profession; and the remaining third by the archaic laws of evidence.

There have been significant changes to the way our justice system and the profession approaches the admission of evidence and the dispensation of justice in the 60 years or so since Justices Jackson and Dixon sat on their respective courts. Nevertheless, there will forever be perceived flaws in our approaches to evidence and procedure which appear to call out for reform and improvement. This is particularly so in the realm of our criminal justice system, where a miscarriage of justice and a wrongful conviction have the potential to have profound and irreversible consequences.

‘Wrongful Convictions in Australia’ begins with an insightful foreword by the Honourable Michael Kirby AC CMG which acknowledges his own participation in the rejection of appeal applications which were later determined to have resulted in wrongful convictions. Mr Kirby echoes the call by the authors for an improved institutional response to criminal conviction review processes in Australia and repeats his own prior call 3 for consideration to be given to the potential solutions that may be available to address imperfections in the criminal review process. 4

Professors Stephen Cordner AM and Kerry Breen AO, both heavily credentialed experts in forensic medicine, set out the case for two necessary reforms to the way our legal system approaches expert evidence. They conduct a review of cases involving complex evidence relating to the forensic sciences which have resulted in wrongful convictions, and carefully observe and demonstrate throughout the twelve chapters that there is usually no single cause of a particular wrongful conviction, but rather a confluence of factors at play. Their overarching thesis is, if the number of wrongful convictions is to be reduced, attention must be paid to all of them at every stage of the trial process as well as post-conviction.

Their two suggestions for crucial reform are divided into ‘preventative measures’ and ‘corrective measures’.

The former have an impact on criminal trials where forensic science, medicine, and other expert evidence is central to the outcome,5 and the latter ‘are designed to dramatically improve the justice system’s response to situations where all avenues of appeal have been exhausted and yet lingering doubts remain as to the safety of the conviction or where new evidence becomes available.

The authors are also careful to define their terms and the scope of their inquiry. A wrongful conviction is considered for the purpose of their analysis to cover:

1 Brown v Allen, 344 U.S. 443 (1953).

Right to appeal wrongful convictions in ACT

In the ACT, a new right to appeal a conviction or a finding of guilt on the basis of fresh and compelling evidence commenced in May 2024. The new right to appeal will apply retrospectively, and there is no limit on the number of appeals allowed under the new right to appeal

• those cases in which a person has been charged and found guilty of a criminal act which they did not in fact commit, and

• those who have been convicted on circumstantial grounds where a proper understanding of the circumstantial evidence – supported at times by new evidence – indicates a reasonable doubt about a conviction.6

Outside of the terms of their inquiry are those cases which result in a miscarriage because of procedural failings, and misunderstandings or mistakes of law.

The authors refer to recent examples such as the case of Kathleen Folbigg and the ongoing appeal matter of Robert Farquharson as recent and illustrative examples. The Farquharson case (which remains ongoing in Victoria) attracts criticism for a number of reasons going to the potential contamination of the expert medical opinion obtained by the prosecution at Mr Farquarson’s 2010 trial for the murder of his three young sons by driving his car into a dam. Mr Farquarson’s defence involved an explanation that he had been suffering from a coughing fit which had led to him losing consciousness while driving. The authors were troubled by the prosecutor’s decision to provide the

2 Hon JJ Spigelman AC, ‘Truth and the law’ - Sir Maurice Byers Address delivered on 26 May 201, Bar News, Winter 2011, at p 99.

3 Kirby, M. D. ‘A New Right of Appeal as a Response to Wrongful Convictions: Is it Enough?’, Criminal Law Journal, 2019, vol 43, pp. 299-305.

4 Wrongful Convictions in Australia – Addressing Issues in the Criminal Justice System at x – xi.

5 Ibid 82.

6 Ibid 9-10.

full brief of evidence to the medical specialist and the associated risk of biasing their report. Further, the report itself revealed that the expert was not invited, nor was expected to conduct a medical assessment of Mr Farquharson for the purpose of their report and did not have primary expertise in that particular area of respiratory medicine.7

As may be expected, the authors’ primary focus is upon the way in which all participants in the criminal justice process approach the admission and interpretation of expert forensic evidence.

Many, if not all, of the flaws and potential avenues leading to a wrongful conviction which are identified would be familiar to criminal law practitioners and the forensic experts who assist them and the courts in their work.

In order to avoid these outcomes, lessons need to be learned and re-learned by all participants in the process.8 Practitioners and forensic experts need to be mindful of their own susceptibility to ‘tunnel vision’ and confirmation bias. That is, the risk associated with focussing solely on an early suspicion9, and unconscious biases such as the desire to present expert evidence10 in a manner which is favourable to the party which has requested (and paid for) their presence.11 In respect of the latter, the authors cite research which indicates that due to the unconscious nature of this bias ‘repeated reminders that the expert witness’s primary duty is to assist the court are unlikely to be of value’.12 Research is also cited which indicates that when presented with

7 Ibid 35-36.

8 Ibid 7.

9 Ibid 26.

10 Ibid 34-35.

11 Ibid 35.

12 Ibid 40.

competing expert evidence that is difficult to comprehend, there is an inclination to favour either the expert with the highest credentials, or the expert who presents the most impressively.12

The authors also note the difficulties in obtaining a grant of parole faced by those who maintain their innocence post-conviction, given that this process can depend upon an expression of remorse and evidence of reform such as participation in programs whilst in custody.13 A notable example of the latter issue can be seen in the case of Ljube Velevski, who was released from custody in 2022 after having served the entirety of his 25 year sentence for the murder of his wife and children. Mr Velevski became eligible for parole in 2016 however declined to apply for parole apparently on the basis that he continued to maintain his innocence. 14 Velevski’s High Court appeal, which predominantly related to the expert evidence given during the course of his trial was dismissed in 2002.15

By extrapolating from the available data obtained from the Criminal Cases Review Commission (CCRC) in the United Kingdom it is estimated that 8 or 9 people in Australia would be discovered to have been wrongfully convicted in Australia if a similar Commission were to be established here.16

The authors argue that our current system, which relies upon executive interventions such as petitions and pardons, are not particularly logical when granted to people in relation to crimes that they did not commit, given that the permanent stain of a conviction for the offences remains in place thereafter.

A similar sentiment has been recently expressed by lawyers for Kathleen Folbigg, who have also called for a critical examination of the system of post-conviction review in NSW and consideration given to the establishment of an independent body for review such as a Criminal Case Review Commission in Australia.17

‘Wrongful convictions in Australia’ presents an extremely well-researched and authoritative thesis for a change in policy both in relation to how we approach potential miscarriages of justice post-conviction, and the ways in which the Courts, practitioners, expert witnesses, and other participants in the process can do better to prevent them from happening in the first place.

It is incumbent upon all professionals who participate in the criminal justice process to continually work to improve it such that we can claim to have a truly world-standard justice system. Professors Cordner and Breen have provided us with a succinct, insightful and practical resource for those who regularly practice in the Courts to assist in evaluating the way in which expert evidence should be assessed, presented, and critically examined.

13 Ibid 14 (link)

15 Velevski v The Queen [2002] HCA 4; 212 CLR 124.

16 Above n 4, 17 (link)

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ANTI-MONEY LAUNDERING AND COUNTER TERRORISM FINANCING

Understanding Tranche 2

Crime has a strong profit motive. Criminals actively seek to exploit vulnerabilities in the financial and other professional sectors to launder money and reinvest it into further criminal enterprise. Serious and organised crime—including illicit drug and firearms trafficking and the sexual exploitation of children— poses a significant and enduring threat to Australia’s national security and economic prosperity. The funding of terrorist activity can lead to devastating and enduring consequences for the community.

“Money laundering, and the horrendous crimes connected with it, is a scourge. Continued efforts must be made to disrupt this practice and discover and punish those bad actors in any sector who knowingly facilitate money laundering.” 1 1

The Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/ CTF Act) regulates the financial, gambling, remittance, digital currency exchange providers and bullion sectors that provide certain services (collectively the financial sector). By requiring regulated entities to comply with a series of obligations, the AML/CTF Act seeks to better protect the financial sector and combat money laundering and terrorist financing.

“The AML/CTF regime seeks to assist businesses to identify potential criminality and protect their businesses. It also gives them a framework in which to respond. This helps businesses to avoid reputational and legal costs, and builds confidence that they are not unwittingly facilitating organised crime. In addition, the AML/ CTF regime is critical in developing actionable financial intelligence that assists law enforcement and security agencies protect the community from serious crimes including terrorism, child abuse, illicit drug trade, fraud and cybercrime.”2 Entities regulated under the current AML/CTF regime are required to:

• conduct initial and ongoing customer due-diligence (e.g., verifying a customer’s identity and understanding the customer’s risk profile;

• report ‘suspicious matters’ relating to transactions of $10,000 or more;

3

4

5

6

• develop and maintain an AML/CTF program containing systems and controls to mitigate and manage identified risks; and

• make and retain certain records that can assist with the investigation of financial crime or that are relevant to their compliance with the AML/CTF regime.

EXPANSION OF AML/CTF REGULATION TO THE LEGAL SECTOR

In April 2023, the federal government commenced a public consultation process on the proposed expansion of the AML/CTF regime to other professional service providers who are considered at risk or vulnerable to misuse and exploitation by organised crime and terrorist groups, due to the nature of the services that they provide. These so-called 'tranche-two entities' include lawyers, accountants, trust and company service providers, real estate agents, and dealers in precious metals and stones.

“Operating through or behind a professional adviser can provide a veneer of legitimacy to criminal activity. These practitioners can be used to create complex structures that create distance between criminals and their illicit wealth, and facilitate obscuring property ownership, providing ideal opportunities for laundering large volumes of illicit funds.”3

The need to enhance the existing regime and extend regulation to tranche-two entities was identified by the Financial Action Task Force (FATF), the global money laundering

and terrorist financing watchdog. Domestic implementation of the FATF’s recommendations is considered essential to ensure Australia can adapt and overcome the evolving criminal threat.

“If left unaddressed, Australia’s financial system would remain vulnerable to criminal exploitation through the use of professional services, weakening the overall integrity of Australia’s AML/CTF regime. As the rest of the international community strengthens their regulation of these sectors, Australia would continue to fall further behind. Australia would be perceived as a weak link in the international response to financial crime, damaging Australia’s reputation and attractiveness as a business destination and increasing the cost for Australian businesses operating globally.”4

CONSULTATION WITH THE LEGAL SECTOR

The Law Council of Australia—supported by its constituent bodies, including the Society—has led engagement with the government on the proposed reforms and their impact on the legal profession. In the second half of 2023, the Law Council commissioned an independent analysis of the vulnerability of the Australian legal profession to money laundering and terrorism financing. The October 2023 report, by New Zealand law firm Russ + Associates, did not support an overall assessment of the Australian legal profession as high risk for money laundering or terrorism financing. The report further documented the ‘positive attitudes and behaviours” within the profession with regards to integrity, risk, and compliance with legislative and professional obligations. However, the report did identify some vulnerabilities, which varied in degree across jurisdictions and practice types.

“Importantly, the report shows that the legal profession is proactively working to mitigate the risk of being a party to money laundering and that, where vulnerabilities exist, those not already being addressed, can be addressed through augmentation of existing controls to which the Australian profession is already subjected.”5

In May 2024, the government conducted a second round of consultation, providing further detail on its proposals to bring certain high-risk services provided by professional service providers (PSPs)—including legal practitioners—into the AML/CTF regime. The Law Council has actively maintained its position with government, that any expansion of the AML/CTF regime to the legal sector be evidence-based, proportionate and closely aligned with existing risk management practices. Further, the Law Council has raised concerns about the proposed reforms and their interaction with the rule of law, access to justice and client legal privilege.

“Any reforms must not require lawyers to breach client legal privilege. This is the client’s privilege, not the lawyer’s. We have therefore called for legal practitioners to be exempt from any suspicious matter reporting obligation where that ‘suspicion’ is based upon information or documents the subject of client legal privilege; and for anti-tipping off provisions to be amended to allow legal practitioners to take instructions from clients in relation to the client’s legal privilege.”6

The Law Council has also advised government that the proposed AML/ CTF reforms are significant and cautioned that the legal profession must be given adequate time to prepare for and implement any new requirements following the passage of legislation. To that end, and noting the identification of residual vulnerabilities in the Russ + Associates report, the Law Council has developed a suite of Guidance Notes to improve awareness of the risks of money laundering and terrorist financing.

This guidance, which intends to raise awareness and prevent legal practitioners from falling victim to financial criminals, offers high level guidance about actions that legal practitioners should take to mitigate risks and protect themselves. As things continue to progress, the Law Council and its constituent bodies are focussed on supporting the profession prepare for these oncoming changes.

THE INTRODUCTION OF THE AML/CTF BILL 2024

On 11 September 2024, the Anti-Money Laundering and CounterTerrorism Financing Bill 2024 was introduced.

Key reforms in the Bill include:

• introducing new designated services into the AML/CTF Act, meaning that lawyers, accountants, and real estate agencies (among others) who provide such services would be required to comply with AML/CTF obligations

• introducing a new ‘reporting group’ structure, which creates mandatory obligations and enhanced liability for lead entities in reporting groups

• regulating the treatment of AML/CTF information subject to legal professional privilege (LPP), including by requiring reporting entities to set out claims for LPP in a new LPP form

• amending the ‘tipping off offence’, and updating authorised entities who can disclose AUSTRAC information to foreign governments and agencies

• introducing new coercive powers, including a new examination process which would allow AUSTRAC to obtain information and documents to make enforcement decisions, and

• including a ‘Henry VIII clause’ which would allow the Minister, through legislative instrument, to make transitional rules within 4 years of commencement that modify the application of primary legislation (including the AML/CTF Act).

These changes will require practitioners and firms who are delivering “designated services” to begin educating themselves as soon as possible on how to be prepared. This will include assessing the services you provide to determine if they are captured, assessing risk with your existing processes, implementing mitigation strategies such as “customer due diligence” requirements, and gaining an understanding of reporting requirements under the new regime.

PREPARING FOR IMPLEMENTATION

RESOURCES FOR MEMBERS

AML/CTF HUB

Members can access a range of resources from reliable sources like the Law Council of Australia here at our AML/CTF Hub .

While consultation continues on the new Bill and transitional rules are still to be implemented, it is crucial that practitioners and firms start preparing for what will be required of them. The Society is committed to assisting the ACT legal profession to understand the changes through continued awareness raising and by providing ongoing educational opportunities. Leveraging the work being undertaken at the national level with the Law Council and our interstate counterparts, the Society has developed a new AML/CTF Hub that our members can access here, where information and resources from across the country are being collated and updated regularly to support the ACT profession to prepare ahead of implementation in July 2026.

Five Key Takeaways from the LCA Guidance Notes

1

“Money laundering and terrorism financing are based on deception. Criminals launder money to hide payments and investments, disguise their identities to avoid detection by law enforcement to attempt to evade international sanctions and taxation laws. This includes using unlawfully obtained monies to enter into apparently legitimate investments and businesses, disguising ownership by separating legal title from beneficial ownership and using networks of companies in different jurisdictions to frustrate investigations.”

GUIDANCE NOTE NO 1

2

“… like everybody else, legal practitioners are subject to the criminal law. Money laundering and terrorism financing are serious offences and carry severe penalties. Each of the Criminal Code Act 1995 (Cth) state and territory criminal and/ or proceeds of crime statutes, criminalise money laundering and terrorism financing. The Financial Transaction Reports Act 1988 (Cth) requires physical receipt of cash over AUD$10,000 to be reported to the Australian Transaction Reports and Analysis Centre to prevent money laundering and terrorism financing.”

GUIDANCE NOTE NO 2

3

“Money laundering is not complicated, it is just hard to spot! While many experts adopt a threestep characterisation (‘placement’, ‘layering’ and ‘integration’) to describe it, the flow or transfer of funds to disguise the source is the key. In fact, money laundering can even be a single transaction (even though it usually involves more, sometimes many more steps). The illicit funds enter a formal or informal financial system and in the process they are ‘cleaned.”

GUIDANCE NOTE NO 4

4

‘Terrorism and terrorism financing are distinct but related behaviours. Planning an act of terrorism may involve illegal arms trafficking, training attackers, forging documents and paying bribes. All of these require money. Further, terrorists require housing, mobile phones, food, transport and family support. As such, terrorism financing can involve funds that support entire networks or involve very small sums for specific purchases. Funds that finance terrorism can appear to be used for daily, innocent purposes and can be unwittingly moved across borders by charities, educational institutions and unwitting professional advisers. Funds used for terrorism may originate from otherwise legitimate businesses or from criminal enterprise.”

GUIDANCE NOTE NO 5

5

“The AML/CTF risk-based approach is a strategy implemented by businesses and supported by regulators globally. It is designed to mitigate the risks of a business being unwittingly used for ML/TF activities. In simple terms, the risk-based approach is a concept for achieving AML/CTF regulatory compliance that involves identifying, assessing and understanding the specific money laundering and terrorism financing risks faced by a business – that is, the risk that it may be unwittingly used to launder money or facilitate terrorist financing. Then, to reduce or manage the level of risk, the business tailors its AML/CTF measures accordingly. This approach recognises that not all clients, transactions, services or geographic locations pose the same level of risk, and supports resources being allocated more effectively by focusing on areas that pose a higher money laundering or terrorism financing risk.”

GUIDANCE NOTE NO 6

BLACKBURN LECTURE

Do lawyers have a future?

LEGAL PRACTICE IN THE AGE OF AI

In the 38th Annual Sir Richard Blackburn Lecture, delivered as a part of the Society’s 2024 Law Week, Anne Trimmer AO delves into the ever-expanding world of artificial intelligence and considers the ways these evolving technologies may come to impact our legal community.

When Sir Richard Blackburn delivered the first Blackburn lecture in 1986, we could not envision the changes that technology would introduce into legal practice. In the 1980s, the first word processors arrived in legal offices with word processing pools replacing typing pools. Internal communications were delivered in envelopes and longdistance transmission of documents was by telex until the introduction of the fax machine. And if this sounds like another era, it was my experience in my first year in practice.

The Economist, in a recent opinion piece1, commented that previous technological breakthroughs revolution ised what people did in offices. It quotes an observer of the spread of the typewriter

in 1888: ‘With the aid of this little machine an operator can accommodate more correspondence in a day than half a dozen clerks can with the pen and do better work.’ The introduction of the computer a century later eliminated some low-level administrative tasks while making skilled workers more productive.2 It was not until the 1990s that networked computers became more widely available and with them, the introduction of emails and external electronic communication.

In late 1998, representatives of the Sections of the Law Council of Australia recommended that the Law Council undertake a long-term strategic planning exercise for the legal profession.

As a result of this suggestion, the Law Council established a Taskforce under my chairmanship as the then Presidentelect. The Taskforce was asked to examine some of the big issues likely to impact on the legal profession in the first decade of the 21st century.

The subsequent Discussion Paper³ was released in September 2001 when I was President. I urged that the Discussion Paper be used as a tool to generate debate within the profession and the community about the role of lawyers and the implications arising from some of the issues identified. In rereading the paper in preparation for this lecture, I was struck by how much remains pertinent, a quarter of a century on.

The Discussion Paper comments that one of the issues in looking forward to the future of the legal profession, is the ‘paradox of change’4 . The introduction makes the point that ‘[w]hile the profession needs to address and come to terms with all the issues that arise from the forces of deregulation, competition, globalisation and technology, there is equally a need on the other side of the policy equation to emphasise the core values of the legal profession’5 .

To my mind this paradox remains as we engage in a technology age aided by artificial intelligence.

What is artificial intelligence?

What do we mean when we talk about artificial intelligence in the context of legal practice?

At its broadest, artificial intelligence, or AI, is defined as technologies and systems comprising software and/or hardware that can learn to solve complex problems, make predictions or undertake tasks that require human-like sensing (such as vision, speech, and touch), perception, cognition, planning, learning, communication, or physical action.6

The subset of AI that has attracted interest, and debate, is generative AI (GenAI) which uses deep learning algorithms to generate new outputs based on large quantities of existing or artificially created input data. These outputs can include multiple modes such as text, images, audio or video.7 Gen AI systems have been trained on massive amounts of data, and work by predicting the next word or pixel to produce a creation.8

As the Law Society (of England and Wales) succinctly puts it, traditional AI recognises, while generative AI creates.9 Generative AI has the capacity to create new content based on the data that has been fed into it. However, it does not have the capacity to validate or check its outputs.

AI language models that operate as generative pretrained transformers (GPTs) are a group of language models ‘pretrained’ on a large data set to generate human-like text responses.10

The paradox is the benefit of efficiency brought about by the capacity of AI to trawl through large amounts of data, and to provide analysis and images in a short time. However, on the other side is a danger of reliance on an interface that nonetheless requires human input to ensure it is accurate and consistent with the law.

A large language model (LLM) is an AI system trained on an exceptionally large amount of data. It uses machine learning to conduct a probability distribution over words to predict the most likely next word in a sentence based on the previous entry. Language models learn from text and can be used for producing original text, predicting the next word in a text, speech recognition, optical character recognition and handwriting recognition. 11

Familiar large language models include ChatGPT, developed by OpenAI, and Gemini (formerly known as Bard), developed by Google. There are now many other LLMs with names as diverse as BERT, Claude, and Ernie.

3 Law Council of Australia, 2010: A discussion paper. Challenges for the legal profession, Canberra September 2001

4 Ibid page 1

5 Ibid

6 National Institute of Standards and Technology, U.S. Leadership in AI: A Plan for Federal Engagement in Developing Technical Standards and Related Tools August 2019, (link)

7 The Law Society, “Generative AI – the essentials” 17 November 2023, (link) accessed 11 April 2024

8 Glover, Ellen, “What is Generative AI?”, (link) accessed 22 April 2024

9 The Law Society supra

10 NSW Bar Association, “Issues arising from the use of AI language models (including ChatGPT) in legal practice”, 12 July 2023, page 1

11 Kapronczay, Mór, “A beginner’s guide to language models”, (link) accessed 22 April 2024.

Using AI in legal practice

In 2016 the Law Society of New South Wales established its Future Committee and, in turn, the Future of Law and Innovation in the Profession Commission of Inquiry to provide the legal profession with recommendations which might enable lawyers to better accommodate new concepts and ideas and to adapt to changes.12

In its report, published in 2017, the Inquiry found that:

• clients are seeking greater value for legal services and increased competition amongst lawyers is fuelling change, as is the increasing use of technology

• change has also brought with it new ethical and regulatory issues

• there is an increased awareness that future law graduates need to be equipped with new skills to meet the current and future demands of the profession, and

• the wellbeing and mental health of lawyers needs to be safeguarded by appropriately supporting them through the process of change.13

Additionally, among the findings was that artificial intelligence raises regulatory and ethical issues that require

investigation and guidance for solicitors.14

In 2021 the Law Society (of England and Wales) published a rather bleak analysis.15 Its report, ‘Images of the Future Worlds Facing the Legal Profession 2020-2030’, outlined a legal profession largely replaced by artificial intelligence and self-service legal advice by the end of the 2020s. It forecast a 'savage reduction' in full-time jobs by 2050. The report suggested that those human lawyers who remain will work alongside technology - and be required to take 'performance-enhancing medication in order to optimise their own productivity and effectiveness'.

Those leading the discussion about the impact of generative AI on legal practice have identified key areas for transformation.16 These include decreasing lawyer effort while increasing high-value services.

Lawyers will have more time to spend with clients with work traditionally performed by more junior lawyers undertaken by GenAI. Where it will have an impact is to challenge the traditional law firm billing model based on hourly rates.

The likely impact of GenAI on the legal profession is now the subject of considerable analysis.

The legal publisher, Walters Kluwer, in its Future Ready Lawyer Report 2023,17 provides a snapshot of how rapidly attitudes among lawyers towards the use of AI are changing. In 2023 73% of lawyers were reported to anticipate integrating generative AI into their legal work within the next 12 months. This compared with the 2019 survey in which only 58% of lawyers surveyed predicted that AI would have an impact on their work over the next three years.

In a report released this year,18 Thomson Reuters Institute cites 88% of corporate legal departments believing AI can be applied to their work, primarily to increase efficiency and productivity. While only 12% of legal industry respondents to its survey say they use legal-specific GenAI today, an additional 43% say they plan to do so within the next three years.

Goldman Sachs has estimated that 44% of legal tasks could be performed by AI, more than in any other occupation surveyed, other than clerical and administrative support.19 Lawyers are able to use AI for a variety of tasks that are otherwise time consuming such as due diligence, research, and data analytics. These tasks are all “extractive” AI, that is, using applications that extract information from text. 20

Generative AI is much more powerful. Commercial providers such as LexisNexis and Microsoft are already introducing AI platforms that have been created specifically for lawyers. There are also firms that have taken platforms like ChatGPT and adapted them for use by lawyers, such as the legal software system RobinAI which assists in speeding up drafting and querying contracts.

2 Law Society of NSW, The future of law and innovation in the legal profession (The flip report), 2017 (link) accessed 21 March 2024

13 Ibid at page 2

14 Ibid at page 5

15 Law Society of England and Wales, “Images of the future worlds facing the legal profession 2020-2030”, (link), accessed 21 March 2024

16 Furlong, Jordan, “Key takeaways from session 2: Law unlimited – welcome to the re-envisioned legal profession”, part of the Centre for Legal Innovation Summit October 2023, at page 11 (link) 11 April 2024

17 Walters Kluwer, Future Ready Lawyer Report: embracing innovation, adapting to change, 2023 (link) accessed 25 April 2024

18 Thomson Reuters Institute, 2024 Generative AI in professional services, (link) accessed 22 April 2024

19 Goldman Sachs, “The potentially large effects of artificial intelligence on economic growth”, Global Economics Analyst, 26 March 2023 (link) accessed 28 April 2024

20 “Generative AI could radically alter the practice of law”, The Economist, 6 June 2023, (link), accessed 8 April 2024

The likely impact of GenAI on the legal profession is now the subject of considerable analysis.

Two American lawyers who have written extensively on AI in legal practice, Natalie Pierce and Stephanie Goutas, argue that ‘much like previous technological advances, [AI] may be poised to redefine the role of legal professionals rather than displace them.’21 AI can automate time-consuming and routine work which then allows legal professionals to undertake the more complex and higher value work.

Already some global law firms have signed on to the integration of AI into their work practices. Allen & Overy announced in February 2023 that it was integrating Harvey 22 into its practice. Harvey is an artificial intelligence platform built on a version of OpenAI’s GPT language models. As well as the general internet data that underlies GPT, Harvey is trained in legal data including case law. Harvey uses natural language processing, machine learning and data analytics to automate and enhance areas of legal work such as contract analysis, due diligence, litigation and regulatory compliance.22 It can help to generate insights, recommendations and predictions based on large volumes of data. The system alerts lawyers to fact-check the content it creates.

In its analysis of the possible impact of AI on legal practice,23 The Economist outlines three ways in which it views AI as having the potential to transform the legal profession. In large, complex lawsuits, detailed documents can be uploaded into a litigation preparation AI and one lawyer can undertake the interrogation, resulting in a leaner, specialised firm.

AI could change how firms bill for their time. If AI can do the work of multiples of young lawyers, firms will need to change their billing practices. The tyranny of the hourly rate may disappear with flat fees charged for the work. Or, as The Economist suggests, clients might be charged a “technology fee” that reflects the cost of the firm’s acquisition and/or development of appropriate AI.

AI might change the number of young lawyers needed to undertake the ‘grunt’ work, with a consequent change in hiring practices and ratios of partners to young lawyers within law firms. This has implications for young law graduates and indeed for law schools which continue to enrol and graduate large numbers of young lawyers.

You may have read an article last week in the Australian Financial Review, 25 detailing the AI tool that Minter Ellison has built based on a GPT-4 platform. According to the firm’s CEO, Virginia Briggs, the tool can prepare a basic piece of legal advice in 15 minutes, a task that would take a graduate lawyer up to eight hours. Ms Briggs acknowledges the likely impact of AI on graduate level lawyers but argues that it will not take away work but rather change the way work is undertaken.

Richard Susskind, a British veteran commentator on technology changes in legal practice, has said that ‘[p]eople who go to lawyers don’t want lawyers: they want resolutions to their problems or the avoidance of problems altogether’. 26 If AI can provide the solutions, then clients will be satisfied to use AI-generated assistance.

21 Pierce, Natalie and Goutos, Stephanie, “Why lawyers must responsibly embrace generative AI”, 14 June 2023, Revised 4 March 2024.Berkeley Business Law Journal, Vol. 21, No. 2, 2024 Available at (link), at page 32 accessed 7 March 2024

22 (link)

23 (link) accessed 25 March 2024

24 The Economist supra

25 Van Leeuwen, Hans “If AI can do the work of a grad lawyer, what does a grad lawyer do?”, Australian Financial Review, 16 May 2024 (link) accessed 17 May 2024

26 The Economist supra

27 Villasenor, John “How AI will revolutionize the practice of law”, 20 March 2023, (link) accessed 21 March 2024

In a commentary published by the Brookings Institute in 202327, John Villasenor wrote that ‘AI will make it much more efficient for attorneys to draft documents requiring a high degree of customization—a process that traditionally has consumed a significant amount of attorney time. Examples include contracts, [court filings], responses to interrogatories, summaries for clients of recent developments in an ongoing legal matter, visual aids for use in trial, and pitches aimed at landing new clients. AI could also be used during a trial to analyse a trial transcript in real time and provide input to attorneys that can help them choose which questions to ask witnesses.’28

A recent trial of the use of AI by the global firm, Ashurst, utilising 411 staff across 23 offices in 15 countries, found time savings of 80 per cent in reviewing articles of association, 60 per cent on company research reports, and 45 per cent on client briefings.29 The Ashurst trial used a blind study to judge the quality of AI-assisted case studies and found that in all but one case, the summaries produced by humans were judged a higher quality.

The head of Ashurst Advance is quoted as saying that ‘the trial’s findings had implications for the training of young lawyers and that AI could bring an end to the billable hour by forcing law firms to charge for the value of work completed rather than the time taken to do it.’ 30

In an interesting discussion of the potential use of AI to assist in litigation, Don Farrands KC identified four key beneficial areas31:

• removing repetitive and relatively low-skilled work, such as reviewing vast volumes of discovery

• providing more powerful search engines and analysis regarding legal principles and arguments

• providing predictions on court proceeding outcomes, and

• providing opportunities to mine vast volumes of data to determine whether relevant expert material can be used, or criticised, in proceedings.

28 Ibid

AI will also become the focus of law firm competition. As I have outlined, some of the large law firms are already investing in acquiring or developing AI suitable for their business. An argument has been made that law firms that fail to utilise AI will be at a competitive disadvantage. John Villasenor argues that ‘[l]aw firms that effectively leverage emerging AI technologies will be able to offer services at lower cost, higher efficiency, and with higher odds of favourable outcomes in litigation. Law firms that fail to capitalize on the power of AI will be unable to remain costcompetitive, losing clients and undermining their ability to attract and retain talent.’32

What could possibly go wrong?

In considering a framework for risk management of AI, the United States Department of Commerce suggests that ‘AI risks – and benefits – can emerge from the interplay of technical aspects combined with societal factors related to how a system is used, its interactions with other AI systems, who operates it, and the social context in which it is deployed. These risks make AI a uniquely challenging technology to deploy and utilize both for organizations and within society. Without proper controls, AI systems can amplify, perpetuate, or exacerbate inequitable or undesirable outcomes for individuals and communities. With proper controls, AI systems can mitigate and manage inequitable outcomes’. 33

One issue that has received some attention is the accuracy, or more correctly, the inaccuracy, of GenAI. Generative AI is known to ‘hallucinate’, that is, where it offers up madeup or incorrect information. The confident and chatty style of ChatGPT, for example, can mask the fact that the information provided is completely wrong.

In the United States there have already been several cases where lawyers have been suspended from practice because they have used citations based on fabricated cases, where AI has purportedly ‘hallucinated’.

The case of Mata v. Avianca, Inc34 set a precedent in the United States District Court for the Southern District of New York, for what can go wrong and the action the court might take in response.

Steven Schwartz was a personal injury lawyer at the New York firm Levidow, Levidow & Oberman who used ChatGPT to draft a court filing. Unfortunately, ChatGPT

29 Black, Euan “Real lawyers still better than AI …just”, Australian Financial Review 11 April 2024

30 Ibid

31 Farrands, Donald “Artificial Intelligence and Litigation — Future Possibilities” (2020) 9(1) Journal of Civil Litigation and Practice 7

32 Quoted in Pierce and Goutas supra at page 45

33 United States Department of Commerce, Artificial Intelligence Risk Management Framework (AI RMF 1.0), January 2023, (link) accessed 28 April 2024

34 Mata v. Avianca, Inc., No. 1:2022cv01461 - Document 54 (S.D.N.Y. 2023)

created a motion that used non-existent judicial opinions with fake quotes and citations. Even after he was challenged Mr Schwartz continued to stand by the fake opinions after being questioned by the court. The court found that Mr Schwartz and his firm had breached the New York Rules of Professional Conduct 35 which state that ‘[a] lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.’

Since the Mata case, cases involving lawyers and hallucinated or erroneous material are becoming a regular occurrence in the United States. In a case in the Massachusetts Superior Court36, counsel for the plaintiff filed four memoranda in response to four separate motions to dismiss. In reviewing the memoranda, the judge could not find three of the cases cited in two of the memoranda. When the lawyer was quizzed as to why he had included the cases, he responded that he did not know. The judge then asked for a written explanation. In filing a response, the lawyer acknowledged that he had ‘inadvertently’ included citations to multiple cases that did not ‘exist in reality’ which he attributed to an AI system used in his office.

While the lawyer had checked the filings for style, grammar and flow, he told the court he had not checked the accuracy of the citations.37 The outcome was the imposition of a fine on the lawyer and a firm statement from the judge on the “broader lesson” for lawyers. He said, ‘[t]he blind acceptance of AI-generated content by attorneys undoubtedly will lead to other sanctions hearings in the future, but a defense based on ignorance will be less credible, and likely less successful, as the dangers associated with the use of Generative AI systems become more widely known.’38

It is not only the data coming out of the AI system that needs careful monitoring, but also the information going into it. Data submitted into an AI tool becomes part of the model. For lawyers it is critical that this feed does not violate the confidentiality obligations to clients and their privacy or confidential information, or breach other laws such as antidiscrimination laws.

An area for potential bias in the application of AI is its use in human resources where it is used to trawl large numbers of applications. Without human oversight there is the risk of bias built into the AI process. In the United States some

35 Rule 3.3(a)(1) of the New York Rules of Professional Conduct, 22 N.Y.C.R.R. § 1200.0

jurisdictions have enacted their own AI employment laws such as New York City’s requirement that employers subject AI hiring tools to an independent audit for bias no more than one year before their implementation.39 The New York law prohibits employers from using automated tools to screen candidates unless the software has been independently reviewed for bias against protected groups. Furthermore, all job candidates who live within New York City must be notified if the AI software is used during the hiring process.

Using AI to democratise access to the law

The Law Council’s Discussion Paper on challenges for the future legal profession identified that one of the outcomes of the utilisation of new technology in legal practice was the empowerment of the user. 40 Writing at that time about access to the internet, the Discussion Paper notes that access to the internet can make clients better informed and, as clients become more empowered, they will begin to expect more of their lawyers.

Richard Susskind, who I have referred to as a leader in the field of legal practice and technology, devised the term ‘latent legal market’. Susskind noted, in 1998, that there were many areas of commercial activity where non lawyers would benefit from legal advice but did not seek advice due to issues such as cost and accessibility. 41 According to Susskind, ‘a vast latent legal market will emerge on the so called information superhighway, giving everyone (and not just lawyers) ready and inexpensive access to legal products and information services’. 42

One of the arguments in favour of the legal profession embracing AI is the potential to expand delivery of legal services, enabling more providers to offer affordable services.

In 2014 the American Bar Association established its Commission on the Future of Legal Services with the aim of improving the delivery of, and access to, legal services. Its report was published in 201643 . Among its findings were that most people living in poverty, and the majority of middleincome individuals, do not receive the legal help that they need. Further, pro bono alone cannot provide the poor with adequate legal services to address their unmet legal needs

36 Discussed at length in Ambrogi, Bob, “Not again! Two more cases, just this week, of hallucinated citations in court filings leading to sanctions”, 22 February 2024 (link), accessed 11 April 2024

37 Ibid

38 Judge Brian A Davis in Smith v Farwell, Massachusetts Superior Court, quoted in Ambrogi, ibid

39 Weykamp, George, New York City Targets AI Use in Hiring: Anti-Bias Law Explained”, Bloomberg Law 5 July 2023, (link) explained accessed 8 April 2024

40 Law Council of Australia supra at page 34

41 Susskind, Richard, “The Future of Legal Practice”, Managing Partner, Vol 1 Issue 1, May/June 1998, 10, cited in the Law Council Discussion Paper at p34

42 Susskind, Richard, The Future of Law: Facing the Challenges of Information Technology, Clarendon Press, Oxford 1996

and the traditional law practice business model constrains innovations that would provide greater access to, and enhance the delivery of, legal services. 44

Writing in the foreword to the report, former ABA President, William C Hubbard, who commissioned the report, stated that ‘[w]e must open our minds to innovative approaches and to leveraging technology in order to identify new models to deliver legal services. Those who seek legal assistance expect us to deliver legal services differently. It is our duty to serve the public, and it is our duty to deliver justice, not just to some, but to all.’

The report asserts that ‘[t]he justice system is overdue for fresh thinking about formidable challenges. The legal profession’s efforts to address those challenges have been hindered by resistance to technological changes and other innovations. Now is the time to rethink how the courts and the profession serve the public.’45 This indeed is the challenge to the legal profession – to use technology not only to improve efficiency but to reshape the way in which legal services are provided to those who otherwise have no access.

There are now several instances of non-lawyers taking up the challenge to use technology to radicalise access to legal services.

A recent example is the software developed by a company called Grapple which provides advice to members of the public on a range of workplace issues from bullying and harassment to redundancy. It is able to generate legal letters and provide summaries of cases.

In early 2023 a company called DoNotPay, using a ‘robot lawyer’ and chatbot, attempted to appear in a court in the United States, representing a client charged with traffic offences. DoNotPay was established by a student at Stanford in 2015, using the technology initially to dispute parking tickets. The client pays a bimonthly subscription fee, with the service available in the United States and the United Kingdom. The company describes its services as ‘your AI consumer champion’. 46 The list of applications for its AI tools is extensive, ranging from refunds for flight tickets to cancelling subscriptions to filing complaints with administrative agencies.

The legal advice provided by DoNotPay used machine learn ing to match text and voice recognition with a dataset comprised of legislation and legal precedent. 47 In the case referred to, DoNotPay was forced to cease the action on the basis that it was unlicensed to practise law.

The need for guardrails

Despite suggestions to the contrary, this is not the Wild West and guardrails are needed to ensure that firms, in their enthusiasm to embrace AI technologies, do not fail to adequately manage risks.

In Australia there is currently no AI-specific legislation, although there is increased examination of whether current laws are sufficient. AI is governed by existing legislation. As the Australian Government’s interim response to the consultation on safe and responsible AI noted, ‘businesses and individuals who develop and use AI are already subject to various Australian laws. These include laws such as those relating to privacy, online safety, corporations, intellectual property and anti-discrimination, which apply to all sectors of the economy.’ 48

Joe Longo, chair of the Australian Securities and Investments Commission, in a keynote speech earlier this year, made the point that current regulation may not be sufficient. 49

The challenge of regulating use by the legal profession of artificial intelligence was considered in a speech in 2018 by a former president of the Law Council, Morry Bailes who said:

From a regulatory perspective, we recognise that regulation of the legal profession and the provision of legal services has, generally speaking, evolved in response to problems after they have emerged. One of our key challenges as a profession is to work toward shaping a regulatory and ethical framework that is not simply reactive, but which fosters and accommodates innovation, so that the benefits of developing and deploying new technology-based tools, as well of new ways for lawyers to work, organise and provide legal services, are encouraged and realised. In looking at regulatory responses to the growth of technology and new ways of working in the legal services industry we must ensure that we do not ‘regulate-away’ the benefits for consumers, courts and the profession, nor should we stifle innovation and competition.

Some legal professional bodies have begun to construct guidance about the safe and/or ethical use of generative AI.

43 American Bar Association. The Commission on the Future of Legal Services in the United States Report 2016 (link) accessed 8 April 2024

44 Ibid at page 5

45 Ibid at page 9

46 (link)

47 Canetti, Tom, “An AI lawyer is set to appear in court for a world first. Does it spell the end for costly fees?”. SBS 7 January 2023, (link) accessed 2 April 2024

48 Safe and Responsible AI in Australia Consultation: Australian Government’s Interim Response, 17 January 2024 (link) accessed 27 April 2024

49 Longo, Joe “We’re not there yet: Current regulation around AI may not be sufficient”, (link) accessed 27 April 2024

If we are too conservative, we run a risk of devising overly protective and controlling regulatory measures. On the other hand, regulation of the legal profession and the provision of legal services serves the public interest and protection of consumers by ensuring quality, of both the knowledge and skills of legal practitioners, and the services they provide.50

The Law Society (of England and Wales) in its guidance to members has identified the following risks: 51

• intellectual property risks: potential infringements of copyright, trade marks, patents and related rights, and misuse or disclosure of confidential information

• data protection and privacy risks: concerns related to the unauthorised access, sharing or misuses of personal and sensitive data

• cybersecurity risks: vulnerabilities to hacking, data breaches, corruption of data sources and other malicious cyber activities

• training data concerns: the use or misuse of data to train generative AI models, which could result in biases or inappropriate outputs

• output integrity: the potential for generative AI to produce misleading, inaccurate or false outputs that can be misconstrued or misapplied

• ethical and bias concerns: the possibility of AI models reflecting or amplifying societal biases present in their training data, leading to unfair or discriminatory results

• human resources and reputation risks: if the use of generative AI may result in negative consequences for clients, there may be reputational and brand damage.

The NSW Law Society has recently published a guide for solicitors on the responsible use of artificial intelligence.52 The guide identifies the range of potential issues for legal practice in the use of generative AI, including accuracy and bias.

The NSW Law Society guide highlights the relevant conduct rules that govern the use of AI in practice. These include:

• Rule 4 – competence, integrity and honesty which requires that there is full disclosure to a client when a generative AI program is used

• Rule 9 – confidentiality. Generative AI uses the information that has been fed into the system, so care is needed not to share information that is not publicly available, leading to a breach of confidentiality and loss of client privilege

• Rule 17 – independence and the avoidance of personal bias, using best judgement and not merely relying on information generated by AI

• Rule 19 – duty to the court by not misleading or deceiving the court, even inadvertently

• Rule 37 – supervision of legal services. Where AI is used in a practice, critical evaluation of the accuracy and completeness of the output is required.

The NSW Bar Association issued guidelines on the use of GenAI in July 202353 outlining the practice issues that might arise from using such models. The guidelines note that under the Uniform Law provisions, barristers are bound by professional conduct rules and ethical obligations, which include providing competent and diligent representation, maintaining independence and integrity, and maintaining the confidentiality of client information.

The guidelines continue ‘[w]hen considering whether to use ChatGPT or any other tool which co-creates content, barristers should ensure that they are complying with those rules and obligations.’54 They point also to elements of the Barristers Rules which reflect expectations of barristers as specialist advocates, requiring them to apply their own skill and to exercise their own judgement.

The NSW Bar guidelines provide some useful suggestions on how to approach practice using GenAI55 . It recommends keeping a record of the prompts that have been used (in other words the search history), the choices that have been made, and the results generated by the AI tool. It also recommends that barristers be transparent with clients about their use of AI tools in assisting legal representation.

50 Law Council of Australia, “An end to lawyers? Implications of AI for the legal profession”, 24 October 2018, (link) accessed 22 April 2024

51 The Law Society “Generative AI – the essentials”, 17 November 2023 (link) accessed 27 April 2024

52 Law Society of NSW, “A solicitor’s guide to responsible use of artificial intelligence”, LSJ Online 14 November 2023, (link) accessed 22 April 2024

53 NSW Bar Association “Issues arising from the use of AI language models (including ChatGPT) in legal practice” 12 July 2023 (link) accessed 25 March 2024

54 Ibid at page 1

55 Ibid at page 2

The need for digital safeguards and guardrails is obvious. The benefits of using the technology can be demonstrated, but unless we have policies and regulations that govern its use in the legal context, the risks will overshadow the benefits. Some organisations are already ‘leveraging a combination of frameworks and existing rulebooks for privacy and anti-discrimination laws to craft AI governance programs’.56

At its midyear meeting in 2023, the American Bar Association turned its attention to organisations that design, develop, deploy and use AI systems and capabilities, including lawyers and firms, and urged them to follow specific guidelines.57

The ABA asked developers of AI systems to ensure that their products and services are subject to human authority, oversight, and control. The resolution that was passed noted that individuals and organisations should be accountable for their use of AI products and services, including any legally cognisable injury or harm caused by their actions or use of the AI systems, unless they have taken reasonable measures to mitigate against that harm or injury. Furthermore, developers should ensure the transparency and traceability of their AI products and services by documenting key decisions.

In the Australian context, the federal government’s voluntary framework of AI Ethics Principles includes accountability, specifically that ‘[p]eople responsible for the different phases of the AI system lifecycle should be identifiable and accountable for the outcomes of the AI systems, and human oversight of AI systems should be enabled’.58

The Australian AI Principles also include transparency and explainability stating that ‘[t]here should be transparency and responsible disclosure so people can understand when they are being significantly impacted by AI, and can find out when an AI system is engaging with them’.

The principle goes on to state that when AI is used, responsible disclosures should be given in a timely manner, and provide reasonable justifications for AI systems outcomes, including information that helps people understand outcomes.59

Conclusion

Pierce and Goutos (referred to earlier) argue that ‘the evolution ahead calls for a thoughtful and strategic approach, centered on embracing new technologies, modernising legal education, and providing the necessary training. This strategy is designed to equip legal professionals with the requisite skills needed to collaborate effectively with sophisticated AI systems, underscoring the importance of adaptability and continuous learning. Our goal should be not to ban or eliminate GenAI from the legal industry, but instead to skillfully train legal professionals so they understand how to leverage the technology responsibly to enhance their unique skills and, in turn, their practice of law’.60

To this I would add that our legal professional bodies, charged with regulating the profession, consider whether the current conduct rules are sufficiently flexible to apply to legal work undertaken in an AI context. As I have pointed out, some thoughtful preliminary guidance is already available from different professional bodies.

In answer to the question, do lawyers have a future, the answer to my mind is definitively ‘yes’. While AI may spare lawyers time in trawling large volumes of material, the lawyer brings judgement, empathy, reasoning, and strategy.

There are challenges, however, in the way we educate and train our early career lawyers. Their efforts need to be valued, not devalued.

And finally, the use of AI to assist and support those citizens who otherwise do not have access to legal services has to be a key reason to support the further evolution of AI in legal practice.

57

58

59 Ibid

60 Pierce and Goutos supra at page 33

Laws are like Sausages: It's better not to see them being made

“To retain respect for sausages and laws, one must not watch them in the making” is a quote often attributed to the Prince of Bismarck. An alternative source is John Godfrey Saxe — an American lawyer-poet — who is claimed to have said: “Laws, like sausages, cease to inspire respect in proportion as we know how they are made.” Regardless of the true origins of the quote it remains a vivid description of the messiness of the legislative reform process. While holding dear to principles of transparent and accountable government, we don’t really want to see all the gory details of law making. But are we better off not knowing? Is the sausage-making process of law reform all that bad? And what can the Society do about it?

Well-considered policy-making processes are essential for creating laws that are effective, equitable, and sustainable. The 'policy cycle' describes the process through which Government decisions are made and executed. It commences with identification of a problem. Following analysis (including options and recommendations), consideration is given to how policy will be implemented. If Government wants to change behaviour, it could seek to change the law (punishing those who continue to behave in an undesirable way), allocate funding to an awareness and education campaign or introduce some other incentive-based program (nudging desired behavioural change). Consultation is an important part of the cycle — and may be conducted in a range of ways and at different stages of the process. Final decisions are made at senior levels of Government (e.g., Cabinet).

In the context of law reform, policy implementation has several aspects: amendments must be drafted, considered and passed by parliament, and once law, administered and enforced by relevant authorities. In time, the effectiveness of legislative reforms is evaluated, which may lead to identification of new issues requiring resolutions.

The policy cycle explains parts of the decision-making process, but does not tell us the how, what and why of the process. These are invariably messy, involving compromises, concessions, and political manoeuvring.

‘Knee-jerk’ reform

The pursuit of evidence-based policy decisions may be overwhelmed by opinion and emotion, driven by public outcry and demands for urgent action. Governments seeking to remain responsive to constituents may make rapid decisions amidst complexity and uncertainty. Knee-jerk law-making, however, is less than ideal. Thorough policy development processes often identify multiple ways to improve outcomes; but such opportunities may be missed where the process is conducted in haste.

Rapid decisions tend to focus on immediate problems, without considering long term implications and sustainability.

Without proper analysis, and a solid evidence-base, legislative reform may be ineffective, with unintended consequences, including inconsistent application of the law, or increased costs to government, businesses and consumers. For example, new criminal

laws may: be problematic to enforce, further burdening an already overstretched justice system; entrench disadvantage within vulnerable sectors; and ultimately fail to achieve intended public safety objectives. Once enacted, laws are often difficult to reverse or amend, even if proven ineffective or harmful.

Despite these challenges, the ability of governments to rapidly respond to emergency situations (such as natural disasters, public health emergencies, or security threats) is critical to good governing. Swift legislative action can prevent further harm or mitigate impact, protecting public safety and welfare.

Governments also need to demonstrate responsiveness to the concerns of the people to maintain public trust. In cases of widespread public dissatisfaction, rapid legislative reform can help restore confidence. In a rapidly changing environment, immediate law reforms can also capitalise on momentum of public opinion or recent events to achieve timely policy change.

Even if initially reactive, knee-jerk law reform can be a catalyst for broader discussion and longer-term reforms.

Governments may quickly commit to action, but deliberately delay the next step (e.g., introduction of a Bill) until more thorough analysis has occurred. In this way, a triggering event can bring attention to a critical issue. Quick legislative actions can also be used to implement pilot programs or temporary measures that test new approaches. If successful, these can be expanded or made permanent.

Negotiation and compromise

Coming into an election, it’s relevant to consider how minority governments manage policy development. In the ACT we presently have a coalition of the Labor and Greens parties. What impact does this have on policy processes? Minority governments face additional challenges of having to negotiate with other parties and independents to gain necessary support for their bills. This may require significant compromise, which may dilute policy intentions.

A minority government can lead to increased influence of smaller parties and independents, which can shift the balance of power disproportionately over legislative outcomes. In extreme cases, having to negotiate every piece of legislation can lead to delays and a ‘policy gridlock’.

On the other hand, minority governments may foster collaboration across the political spectrum, and provide an effective check or balance on the otherwise unilateral decision-making ability of a majority government. This can lead to more inclusive decision-making, and more balanced outcomes reflecting a more diverse range of perspectives and interests.

What role does the Society play?

In lobbying for ‘good law’, the Society is a calm voice in the storm. The Society maintains awareness of political dynamics and leverages these insights to frame policy submissions that cut through the noise.

Knee-jerk law reform often occurs in response to something that has shocked public consciousness and triggered a highly emotive reaction. In these situations, it is important that the Society is guided by empathy but grounded in a principled, evidence-based approach. Empathy is crucial for understanding the position of stakeholders calling for reform, and those against it. The Society can utilise its position to amplify the needs and concerns of vulnerable people who may be disproportionately impacted by poorly designed legislative reform.

Critical to the Society’s lobbying efforts is pressing for a clear explanation of what the policy problem is, why government intervention is necessary, and what is to be achieved by intervention (i.e., what success looks like).

The Society promotes a policy process that is well-informed, based on credible and objective data, and considers a diverse range of perspectives. The Society is supported by harnessing the expertise of members of its special interest committees.

The Society may challenge whether law reform is the only way to achieve policy outcomes and advocate a balanced assessment of a range of possible solutions, including

non-legislative options. Policy decisions in response to trigger events are often made on a precautionary basis, to prevent another similar event occurring. In such cases, governments may be reluctant to pursue non-legislative or ‘soft’ options, concerned they may be perceived as less effective.

But the law can be a blunt tool. Laws that uphold the rights of an accused person can leave victims and families unsatisfied with the policy response, particularly where retributive and rehabilitative objectives are in conflict. Laws with noble policy intent may be problematic to enforce because of the need for cultural and institutional change. And changing the law is not always the solution. Improved community safety may be better achieved through targeting the root causes, such as social and economic disadvantage or problems with drugs and alcohol. Investment in diversionary, educational or restorative justice programs may be more effective at reducing recidivism than introducing new offences or increasing penalties.

To ensure laws remain effective, they must also be subject to monitoring and evaluation. The government may utilise pilot programs or subject legislation to statutory review or a sunset clause. The Society utilises its special interest committees to monitor the efficacy of new laws post implementation, highlighting areas of concern and advocating for more thorough reviews where needed. The Society also ensures that it actively participates in post legislative reviews to assess impact of new laws and recommend reform where necessary.

Ultimately, the Society encourages policy decisionmakers to take a long-term, strategic approach to law reform that looks beyond immediate political pressures to support sustainable legal frameworks capable of adapting to future community need.

You can view the Society's policy submission summary in our monthly Hearsay and on our website here. To get involved in the Society’s law reform work, please reach out to policy@actlawsociety.asn.au.

New Members

FIRST ACT RESTRICTED PRACTISING CERTIFICATE

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Law Week 2024

AS WE CELEBRATED LAW WEEK FROM 17 TO 24 MAY THIS YEAR, WE WERE THRILLED TO SEE OUR LOCAL PROFESSION COMING TOGETHER, HAVING A LAUGH, AND CONNECTING.

Beginning the week with a bang, the Golden Gavel brought plenty of laughs and showcased the bright future of law in the ACT. The esteemed Anne Trimmer AO delivered an enthralling Blackburn Lecture on Artificial Intelligence, prompting us to ponder the future of law (you can read her lecture in this edition of Ethos). Quiz Night, sponsored by Holding Redlich, and the Soccer Tournament provided opportunities for members to kick back and have fun from start to finish. Additionally, our collaborations with the Bar Association, Women Lawyer’s Association, and the ACT Courts allowed members to learn, connect, and mingle connect, and mingle over delicious food and drinks.

But Law Week is about more than just our profession; it’s also about supporting the ACT community. We’re proud to say that the money raised during Law Week through our members’ valuable contributions and donations will support Lifeline Canberra, a vital local charity, through the ACT Law Society Foundation.

The Society would like to acknowledge that none of this would have been possible without the support of our incredible sponsor, Lawcover. We extend our sincere gratitude to Lawcover for their generous support, without which Law Week would not have been the experience that it was.

CPD Update

Learn about upcoming sessions and how to catch up

Member Insights

Throughout the year members have provided insight on CPDs they have attended and we encourage all our members that attend a CPD session or social activity to provide feedback. The feedback forms are quick and easy to complete and provide us with invaluable insights. You may also contact us through our new member dedicated email memberconnect@actlawsociety.asn.au with any suggestions.

Upcoming CPD Sessions

FOUNDATIONAL SERIES

When it comes to individual skills and personal career growth, certain core concepts require more than just a single session of learning. We’ve recently introduced three new extended webinar series focused on these key skills and concepts to give members the opportunity to direct their learning.

Ethics

Held monthly from August to November, this compelling four-part series delves into different aspects of ethical practice, providing valuable insights and practical guidance for legal professionals. Each session will feature expert speakers, interactive discussions, and case studies to help you navigate the complexities of ethical decision-making in your practice.

Fundamentals

Designed for both new and experienced lawyers, our monthly sessions offer insights into the essential building blocks of various legal practice areas and skills. Whether you're looking to expand your expertise or stay updated on legal developments, there's something for everyone.

Emerging Lawyers

Catering to students and early career lawyers, this series seeks to help guide new members of the profession through the diverse avenues and trajectories law can encompass. With each session offering perspectives from a range of legal professionals, this webinar gives students and new lawyers a glimpse into the exciting paths their future could follow. through a series of thought-provoking questions and answers.

SPECIALIST CONFERENCES

Designed for purpose by the Society’s special interest Committees, these practice area-specific conferences are developed to target the contemporary issues arising in different practice areas.

Government Law Afternoon

24 October 2024

The Law Society’s Government Law Committee presents an afternoon seminar designed for members who work in government at Territory or Commonwealth level.

New Lawyers CPD Afternoon

8 November 2024

The Law Society's New Lawyers Committee is hosting an afternoon seminar designed specifically for upcoming, young, and new lawyers. Early-career solicitors will get two sessions of training in the afternoon that will provide them with practical tools to advance their careers, and a unique opportunity to connect with other early-career lawyers

ON-DEMAND WEBINARS

Our website contains a range of on-demand webinars for those that have been unable to make sessions. You can find the list of webinars here: On-demand webinars

ON-FIRM AND BUSINESS CPD SESSIONS

With new positive duties and increasing awareness of areas for improvement in the workplace, the Society is offering the following courses for ACT firms. The Society believes it is crucial that all ACT firms have the access to the training they need, when they need it.

Being an Active Bystander: Changing Workplace Culture Workshop 16 October 2024

This new educational workshop, developed by the Queensland Law Society, helps participants to understand inappropriate conduct, the role of bystanders, workplace culture and the reporting and management of complaints. It also assists participants to identify what appropriate conduct is and aid in changing behaviours, to foster a positive workplace culture.

Recent Events Recap

LEGAL PRACTICE MANAGEMENT COURSE

From June 18-20, 2024, the Society ran its second Practice Management Course of the year, providing essential training for members aspiring to earn their Unrestricted Practising Certificate. If you’re planning to apply for an Unrestricted Practising Certificate this year, there's still time! Registrations for the November Practice Management Course are now open.

WELCOME RECEPTION FOR JUSTICES CHRISTIE AND CURRAN

Connecting the Family Law Community

On May 5, 2024, the Society’s Family Law Committee had the pleasure of welcoming Justices Christie and Curran from the Family Court of Australia, during their recent sitting in the ACT. As well as being an exciting chance to meet and welcome Justices Christie and Curran, the event was a fantastic opportunity for local family lawyers to engage and connect with others in the family law area.

MEMBER’S MEET-UP

On July 4, 2024, the Society hosted the Winter Member Meet-up at Molly Bar, offering members the time to network over cocktails and canapés. At the Society, we believe in fostering a collegiate and welcoming environment within our profession. Our Quarterly Meet-ups are designed to facilitate collaboration, knowledge sharing, and the development of strong professional relationships. We extend our sincere gratitude to our generous sponsors, Nexia Canberra and Elliot Gray, for supporting our 2024 Member Meet-ups.

Nexia Canberra is proud to be an ongoing sponsor of the Law Society members’ lunches and values the opportunity to connect with members in such a relaxed and friendly social setting.’

WE KNOW PEOPLE

As recruitment specialists, we marry up the qualities that matter most for lasting workplace relationships. Organisational culture is our bread and butter. We get compatibility. Forming genuine connections is the benchmark of our success.

PROFESSIONAL MATCHMAKERS

Our consultative approach brings people together. We cut through the fluff to verbalise the desires of all parties. We scout sought-after skills and pair complementary personalities, shying away from subpar, slapdash and stopgap matches, always.

High Court Judgments

ADMINISTRATIVE LAW

Judicial review – jurisdictional error

In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (10 April 2024) the High Court was required to determine whether an error by the Administrative Appeals Tribunal (AAT) was material and, as such, a jurisdictional error. The AAT erred in its determination of the appellant’s application for a review of a decision, made by the Minister’s delegate, not to revoke the cancellation of his visa. The appellant is a Vietnamese national who held a Class BS Subclass 801 (Spouse) visa. The appellant’s visa was mandatorily cancelled, under s501(3A) of the Migration Act 1958 (Cth) (Migration Act) after his conviction of various offences concerning the trafficking of drugs. The appellant then unsuccessfully applied for the cancellation of his visa to be revoked under s501CA(4) of the Migration Act. In affirming the delegate’s decision, the AAT said that it was not satisfied, under s501CA(4)(b)(ii) of the Act, that there was “another reason” why the cancellation of the visa should be revoked. In considering whether there was “another reason”, the AAT was required, under s499(2A) of the Migration Act, to comply with Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of visa under section 501CA (Direction 90). Direction 90 required the AAT to weigh certain considerations which relevantly included, at paragraphs 8.1.1(1)(a), (b) and (g) of Direction 90, matters going to the seriousness of the appellant’s criminal offending.

The appellant appealed to the Federal Court. The primary judge (Snaden J) held that the AAT had not erred in its treatment of paragraphs 8.1.1(1)(a), (b) and (g) of Direction 90 and dismissed the appeal. The appellant was also unsuccessful before the Full Court of the Federal Court (Markovic, Thomas and Button JJ) but for different reasons. The Full Court held that the AAT had erred, but the error was not material and, as such, not a jurisdictional error. The appellant appealed to the High Court. The High Court (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ) unanimously allowed the appeal and set out reasons in a short joint judgment spanning 49 paragraphs. It was not disputed before the High Court that the AAT had erred. The question before the High Court was, instead, whether the AAT’s error was material. In their judgment, their Honours (at [8]) noted that the reasons given below suggested “uncertainty or confusion” about the language used by the Court in identifying the principles to be applied in determining materiality. Their Honours stated that it was desirable to set these differences aside to “give practical guidance in terms with which all the Court agree”. Their Honours (at [6]] and [7]) observed that there are two kinds of errors: errors which will be jurisdictional irrespective of any effect it might have on the decision and errors which will only be jurisdictional if the error was material to the decision made. The onus falls on the applicant to satisfy the court on the balance of probabilities that the alleged error in fact occurred, their Honours noted (at [13]). Their Honours (at [14]) go on to observe that, in determining whether an error is material, the question is whether

the decision that was made “could, not would, ‘realistically’ have been different had there been no error”. Their Honours explain that the term “realistic” is used to distinguish or exclude a possibility that is “fanciful or improbable”. Applying these principles to the AAT’s error, the High Court found that the error met the requirement of materiality. Their Honours (at [34]) held that the AAT did not “follow the required process of reasoning”.

The High Court considered that the “unavoidable inference” was that the AAT misunderstood paragraph 8.1.1(1)(a) of Direction 90 and, in respect of paragraph 8.1.1(1)(b) and (g), could not comprehend how the AAT made its findings. Their Honours (at [35]) concluded that these aspects of the AAT’s error “compel the finding” that the conclusion reached by the AAT could have been different if there had been no error.

STATUTES

Construction

In Miller v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 13 (17 April 2024) the High Court was required to determine whether the appellant’s failure to comply with s29(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) rendered his application to the AAT for a review of a decision by the Minister’s delegate, invalid.

The appellant is a Fijian national who held a Resident Return (Subclass 155) visa. The appellant’s visa was cancelled under s501(3A) of the Migration Act. A delegate of the Minister decided, under s501CA(4) of the Migration Act, not to revoke the decision to cancel the appellant’s visa. The appellant was notified of the decision. The

appellant then had, under ss500(1)(ba) and 500(6B) of the Migration Act, nine days within which to make an application to the AAT to review the delegate’s decision. The appellant’s migration agent made an application to the AAT within the required period but did not include in the application a statement of the reasons for the application as required by s29(1)(c) of the AAT Act. The AAT held a directions hearing during which the AAT requested the appellant provide a statement of reasons for his application. The appellant emailed the AAT a statement of reasons that would have complied with s29(1)(c) of the AAT Act if it had been contained in his application (and outside the deadline imposed by the Migration Act). The AAT considered that it had jurisdiction to review the delegate’s decision in spite of the appellant’s non-compliance with s29(1)(c) of the AAT Act and affirmed the delegate’s decision.

The appellant appealed to the Federal Court. The primary judge (Derrington J) was persuaded by the Minister that the appellant’s non-compliance with s29(1)(c) of the AAT Act meant that the appellant’s application failed to engage the AAT’s jurisdiction. An appeal to the Full Court of the Federal Court (Thawley, Halley and O’Sullivan JJ) was also unsuccessful. The High Court unanimously allowed the appellant’s appeal and delivered reasons for its decision in a single judgment. Their Honours, at [9], noted that the question of whether non-compliance with s29(1) (c) of the AAT Act results in invalidity of an application is a question of statutory construction to be determined by reference to the operation of the section within the scheme of the AAT Act. Their Honours (at [24]) also cited the principles enunciated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91], per Brennan CJ McHugh, Gummow, Kirby and Hayne JJ, that “An act

done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of that purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition”. The High Court examined the AAT Act, reviewed the legislative history of the Act, and concluded that the clear legislative intention of non-compliance with s29(1)(c) was not to result in the invalidity of the application.

STATUTES

Construction – procedural fairness

In AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10 (13 March 2024) the High Court was required to construe s162(3) of the Independent Broad-based Anticorruption Commission Act 2011 (Vic) (IBAC Act) to determine what material the Independent Broad-based Anticorruption Commission (IBAC) had to provide a person with, for their comment, before releasing a report which includes an adverse comment about that person. The objects of the IBAC Act and the functions of IBAC include, among other things, the identification, investigation and exposure of corrupt conduct. The IBAC Act provides a broad definition of “corrupt conduct”. The definition extends to include conduct by a public officer that constitutes the dishonest performance of their functions where such conduct constitutes a “relevant offence”. A relevant offence includes any indictable offence committed against an Act. IBAC may

conduct a preliminary investigation in order to determine whether to dismiss, refer or investigate a complaint. IBAC’s powers of investigation, under the IBAC Act, include the compulsory examination of witnesses and production of documents or other things to IBAC. Compulsory examinations are typically conducted in private. IBAC also has the power to issue confidentiality notices during an investigation in relation to “restricted matters”, the disclosure of which IBAC considers, on reasonable grounds, would likely prejudice its investigation, the safety or reputation of a person or the fair trial of a person charged with a criminal offence. On the conclusion of its investigation IBAC may, among other things, cause a special report to be transmitted to each House of Parliament pursuant to s162(1) of the IBAC Act. Relevantly, s162(3) of the IBAC Act provides: “If the IBAC intends to include in a report under this section a comment or opinion which is adverse to any person, the IBAC must first provide the person a reasonable opportunity to respond to the adverse material and fairly set out each element of the response in its report”.

Between 2019 and 2021, IBAC conducted an investigation into allegations of unauthorised access to, and disclosure of, internal email accounts of a “public body” within the meaning of s6(1) of the IBAC Act. The first appellant, AB, is an employee of the public body and was examined by IBAC during its investigation of the allegations. In December 2021, IBAC provided AB with a redacted version of its draft special report for AB’s response by a particular date. The draft report contained proposed findings adverse to AB and others. AB, through his solicitor, sought a transcript of his examination, and others, referred to in the draft report, as well as copies of the documentary material relied on in support of the

proposed adverse findings. IBAC declined AB’s request. AB then commenced proceedings in the Supreme Court of Victoria seeking declaratory relief to the effect that IBAC had failed to comply with s162(3) of the IBAC Act. AB also sought an order to effectively restrain IBAC from transmitting the draft report to each House of Parliament.

AB failed at first instance. The primary judge, Ginnane J, construed the reference to “adverse material” in s162(3) as meaning the material on which IBAC relied in support of the proposed adverse findings. But Ginnane J found that it was sufficient if IBAC provided the substance or gravamen of the material. Ginnane J went on to find that IBAC, by providing AB with the draft report, had provided AB with the substance or gravamen of the material relied on in support of the proposed adverse findings. AB sought leave to appeal to the Court of Appeal but was refused. The Court of Appeal, instead, upheld a notice of contention filed by IBAC to the effect that Ginnane J erred in his construction of “adverse material”. The Court of Appeal held that “adverse material” in s162(2) referred to an adverse comment or opinion and not the material on which the adverse comment or opinion was based. The Court of Appeal also held that the draft report set out the adverse comment or opinion and, as such, IBAC, in providing AB with a copy of the draft report, had complied with s162(3). AB applied for special leave to the High Court. AB contended that the Court of Appeal erred both in its construction of s162(3) and its finding that IBAC had complied with s162(3). The High Court unanimously allowed AB’s appeal and set out the reasons for its decision in a single joint judgment. The High Court (at [21]) observed that the interpretation of s162(3) must begin with a consideration of the text of the IBAC Act as a whole.

Their Honours went on to observe that “ascertaining the meaning of the text requires a consideration of its context, which includes the general purpose and policy of a provision and, in particular, the mischief it is seeking to remedy”. Their Honours also considered (at [25]) that it was important to identify some basic propositions about the applicable common law principles of natural justice. Their Honours identified two relevant common law principles. First, a person must be given an opportunity to deal with relevant matters adverse to their interests that a decision-maker proposes to take into account in exercising its powers. Second, a person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, rather only information that is credible, relevant and significant to the decision being made. Their Honours noted (at [26]) that the nature of a decisionmaker’s powers and their capacity to affect a person’s rights and interests informs both the content of any duty of procedural fairness and “the proper construction of statutory provisions that create analogous rights and obligations”. Against this background, their Honours concluded (at [27]) that s162(3) of the IBAC Act modifies the common law obligation to afford procedural fairness so as to require a connection between “adverse material” and the proposed adverse comments or opinions. It follows that for IBAC to discharge its obligations under s162(3), IBAC must provide the person affected with the opportunity to respond to the material collected by IBAC which IBAC contends justifies the adverse comments or opinions. Their Honours (at [31]) considered that IBAC’s argument that a confidentiality notice may not allow for the provision of such material “loses force” once it is accepted that s162(3) does not require IBAC to

provide copies of that material. That is, s162(3) is satisfied if IBAC provides the affected person with a reasonable opportunity to respond to the “gravamen or substance” of the adverse material.

CONTRACT LAW

Wasted expenditure

In Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17 (8 May 2024) the High Court was required to determine the evidence required to establish reliancebased damages for a breach of contract. For contract law enthusiasts, like the writer, this High Court decision is a special treat. The facts read like a contract law exam question. The appellant (Council) owns land on which the Cessnock Airport is located. The Council intended to develop the land and extend the airport’s operations. The Council and Mr Johnson, who later became the principal of the respondent company (Company), met and discussed building an aircraft hangar on the land that would incorporate an aviation museum and an entertainment venue for corporate events. The Council and the Company subsequently entered into an agreement for a lease of a proposed Lot 104 on the land (Agreement). The proposed 30-year lease to the Company was subject to the registration of a plan of subdivision. The Agreement contained a clause, cl 4.2(a)(2), pursuant to which the Council promised to take all reasonable action to apply for and obtain registration of the plan of subdivision by a “Sunset Date”. If no plan of subdivision was registered by the Sunset Date then each party was entitled to terminate the Agreement. The Company was given a licence to the area to build the hangar. The Company went on to build an “iconic” hangar designed by a renowned architect at a cost of about $3.7 million. The Company, in addition to

the museum and entertainment venue, carried on an adventure flight business out of the hangar. The businesses were not profitable. In the meantime, the Council sought quotes for the work required to be done before the plan of subdivision could be registered. When the Council discovered that it would cost about $1 million to connect the proposed lots to the sewerage system it decided not to proceed with the subdivision of the land. The Agreement was treated as terminated and the Council acquired the hangar for $1. The Company sued for damages.

The primary judge (Adamson J) held that the Council breached the Agreement but only awarded the Company nominal damages. Adamson J considered that the Company could only recover damages based on wasted expenditure, without proof that the expenditure would have been recouped, if the nature of the contractual breach made it “impossible” to assess damages. Adamson J concluded, however, that even if it could be presumed that the Company could have recouped its expenditure, the Council had rebutted this presumption. Here Adamson J pointed to the low demand for lots at the airport and the unprofitable nature of the Company’s businesses. Adamson J also considered that the Company’s loss was too remote to be recovered as damages given the uncertainty of registration of the plan of subdivision (among other things).

The Court of Appeal of the Supreme Court of New South Wales (Brereton JA, Macfarlan and Mitchelmore JJA agreeing) took a different view. The Council did not contest the primary judge’s finding that it breached the Agreement. The Court of Appeal held that there was a “presumption”, not confined to cases of “impossibility”, that the Company’s wasted expenditure, reasonably incurred in reliance on the Agreement, could

be recovered. The Court of Appeal held that the presumption was not rebutted. Indeed, evidence adduced by the Company indicated that there was a demand for hangarage. The Court of Appeal also held that the loss was not too remote, noting that it ought to have been plain to both parties at the time the Agreement was made that breach of cl 4.2(a)(2) by the Council would result in the Company wasting expenditure on the hangar’s construction.

The Council appealed unsuccessfully to the High Court. The High Court unanimously dismissed the Council’s appeal. The joint judgment of Edelman, Steward, Gleeson and Beech-Jones JJ offers a masterful exposition on the law on reliance based damages in the United Kingdom, United States of America and Australia. But Jagot J sets out the relevant principles applying in Australian law most succinctly (at [190]-[193]) where Her Honour remarks “no greater complexity than this should be sown into or permitted to invade this field”.

As a starting point, all their Honours observed that the ruling principle of contract law damages is that the contracting party not in breach is to be put in the same position (so far as money can do it) as if the contract had been performed (expectation damages) (Gageler CJ (at [6]), Gordon J (at [48]), Edelman J et al (at [117]) and Jagot J (at [190])). Several of their Honours recognised that sometimes it is difficult to establish the value of the promised performance to determine the quantum of expectation damages that should be awarded (Gageler CJ (at [13]), Gordon J (at [50]) and Edelman J et al (at [127])). In these circumstances, a party may seek recovery of expenditure reasonably incurred in reliance of the contract that was wasted as a consequence of, and not remote from, the wrongdoer’s breach of the contract (Gageler CJ (at [13]), Gordon

J (at [50]), Edelman J et al (at [120]) and Jagot J (at [191])). Their Honours (except Gageler J) held that damages for wasted expenditure are not a separate measure or category of expectation damages but simply a method of calculating damages consistent with the ruling principle of contract law damages (Gordon J (at [51]), Edelman J et al (at [119]) and Jagot J (at [190])). Gageler CJ (at [9]) declared wasted expenditure itself to be a category of damage. Gageler CJ (at [15]) and Gordon J (at [58]) considered that establishing damages for wasted expenditure is simple; a trial judge determines the quantum of damages based on findings as to the amounts actually spent in reliance of the contract (that are reasonable and not too remote) less any benefit or credit received. But Edelman J et al (at [129]) and Jagot J (at [190]) considered that a presumption arises, or a “facilitation principle” applies, to assist the wronged party to establish that the expenditure is wasted expenditure. Edelman J et al (at [129] and [139]) explained that the facilitation principle arises in cases where the wrongdoer’s breach results in difficulty of proof of loss for the wronged party. Edelman J et al (at [168]) and Jagot J (at [191]) observed that, once the presumption is engaged, it can be rebutted by proving that the expenditure would have been equally wasted if the contract had been performed.

All their Honours concluded that the Company was entitled to receive damages in the amount of the expend iture wasted on constructing the hangar.

LAND TAX

Exemption – statutory construction

In Godolphin Australia Pty Ltd v Chief Commissioner of State Revenue [2024] HCA 20 (5 June 2024) the High Court was required to determine the proper construction of s10AA(3)(b) of the Land Tax Management Act 1956 (NSW) (Land Tax Act).

Section 10AA of the Land Tax Act exempts rural land from land tax “if it is used for primary production”. Section 10AA(3)(b) defines “land used for primary production” to mean “land the dominant use of which is for . . . the maintenance of animals (including birds), whether wild or domesticated, for the purpose of selling them or their natural increase or bodily produce”. Where land is used for several purposes, s10A(2) of the Land Tax Act provides “A purpose for which land is used is an ‘exempt purpose’ if land used solely for that purpose would be exempt from taxation”.

The appellant (Godolphin) contended that it was entitled to the land tax exemption. Godolphin owned two properties in New South Wales (“Kelvinside” and “Woodlands”). In keeping with its slogan “breed to race, race to breed”, Godolphin carried on the twin operations of thoroughbred horse breeding and horse racing on the land. Godolphin sold about 70 per cent of the horses it bred. These sales were Godolphin’s primary source of income. Conversely, Godolphin’s horseracing business generated significant losses. Despite these losses, more than half of Godolphin’s staff were engaged in horseracing activities and the great majority of the land was used for purposes other than the breeding of horses. Godolphin considered that racetrack success would enhance the value of the horses it bred for sale.

At first instance, the primary judge held that, given the integrated nature of Godolphin’s business, it could not be said that there were two distinct purposes for the activities carried on at the land. Her Honour concluded that the lands were used for primary production and exempt from land tax. The Court of Appeal of the Supreme Court of New South Wales disagreed with the primary judge (Kirk JA and Simpson AJA, Griffiths AJA dissenting). The majority considered that s10AA(3)(b) of the Land Tax Act was directed at a single concept being the “use-for-a-purpose”. The majority noted that Godolphin’s dominant “use-for-a-purpose” was a racing purpose because of the greater resources directed to racing.

The High Court unanimously dismissed Godolphin’s subsequent High Court appeal. Their Honours considered that the dominant “use-for-a-purpose” construction of s10AA(3)(b) of the Land Tax Act, by Kirk JA and Simpson AJA, was correct. Jagot J (with whom Gageler CJ agreed) observed (at [50]) that the “text and context” of s10AA indicate that when enacting s10AA(3) the legislature assumed (correctly) that “use” of land for a “purpose” was a known concept. Her Honour (at [51] to [66]) examined the cases in which these concepts were explained. Her Honour (at [67]) distilled from this case law to several propositions and (at [68]-[76]) considered other matters relevant

to the construction of s10AA(3)(b) which included (among other things) the history of the Land Tax Act. Her Honour, drawing on these matters, then observed (at [77]) that each of s10AA(3)(a) to (f) is a “composite phrase” and (at [79]) concluded that the Court of Appeal did not err in its construction of s10AA(3) as being the dominant use for something. Gordon, Edelman and Steward JJ reached the same conclusion after setting out the reasons for their rejection of Godolphin’s construction of s10AA(3) (at [24]-[26]). Gordon et al, having regard to the text and context of s10AA(3) (at [28] to [33]), concluded, as Jagot J did, that the section is a composite phrase as construed by the majority of the Court of Appeal.

Dr Michelle Sharpe

Dr Michelle Sharpe is a Victorian barrister practising in general commercial, real property, disciplinary & regulatory law. P. 9225 8722 or E. msharpe@vicbar.com.au

The full version of these judgments can be found at austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

Readers may wish to know that this is Dr Sharpe's last time writing the judgments for Ethos. We thank her for her time and many contributions.

Federal Court Judgments

CONSUMER LAW

'Greenwashing' – investment fund described as 'ethically conscious' –where securities not all screened against ESG criteria

Australian Securities and Investments Commission v Vanguard Investments Australia Ltd [2024] FCA 308 (28 March 2024) is the Australian Securities and Investments Commission’s (ASIC) first win in its fight against “greenwashing”.

The proceeding concerned an investment fund called “Vanguard Ethically Conscious Global Aggregate Bond Index Fund” (Fund). ASIC alleged that Vanguard made a number of representations that the Fund offered an ethically conscious investment opportunity; that before being included in the Fund securities were researched and screened against applicable environmental, social and governance (ESG) criteria; and that securities that violated applicable ESG criteria were excluded or removed from the Fund (at [3]). These were alleged to be misleading contrary to the consumer protection provisions of ss12 DB or 12DF of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) because the research and screening of securities against ESG criteria was significantly limited, a large proportion of the securities were not screened against ESG criteria and the Fund included issuers that violated applicable ESG criteria (at [4] and [31]).

The significant limitations of the research and screening were that it was not applied to issuers other than publicly listed companies, only applied to one company with a particular stock exchange “ticker” rather than all, and did not cover companies that derived revenue from the transportation or exploration of thermal coal (at [31]). The result was that 46 per cent of securities in the Fund, constituting 74 per cent of its market value, were not screened (at [34]).

Vanguard admitted most of ASIC’s allegations. The only dispute as to liability was whether statements in the product disclosure statements (PDS) conveyed that all securities were screened against ESG criteria, or only that securities issued by companies were screened (at [43]). Notwithstanding that disputed issue, Vanguard admitted that the representations conveyed by the impugned statements in its PDS and on its website were misleading.

On the issue in dispute, O’Bryan J found that the PDS and website stated in clear terms that the Fund comprised bonds issued by governments, government related entities and companies, but the ESG screening was applied only to companies (at [94]). O’Bryan J concluded that while there were inconsistent statements that may have caused confusion, the inconsistency did not change the meaning of the impugned statements (at [113]). However, the statements were still misleading. O’Bryan J found on the admissions made and the evidence filed that ASIC had established the contraventions admitted by Vanguard (at [74]).

The Court granted declatory relief that Vanguard had contravened ss12DB and 12DF of the ASIC Act and ordered the matter be listed on 1 August 2024 for hearing on the issues of penalty and costs.

CONSUMER PROTECTION

Prices, discounts and customer ratings – misleading and deceptive conduct and specifying a single price – ss18, 29 and 48 of the ACL

In Australian Competition and Consumer Commission v Bloomex Pty Ltd [2024] FCA 243 (15 March 2024) the Australian Competition and Consumer Commission (ACCC) commenced proceedings against Bloomex, one of Australia’s largest florists, for contraventions of ss18(1), 29(1)(a), (g) and (i) and 48(1) of the Australian Consumer Law (ACL). The ACCC alleged, and Bloomex admitted, that material published on Bloomex’s website about advertised discounts, customer ratings and prices was false or misleading. In addition to false representations for all products of discounts and customer star ratings, the website contained misleading information as to the total price of the products. A surcharge was only revealed at checkout, which Bloomex agreed meant that prior representations were false and misleading and did not specify the single price for the product, contrary to s48(1) of the ACL.

The ACCC sought declaratory and injunctive relief, with which Bloomex agreed, and which Anderson J was satisfied should be ordered (at [92]-[97]).

The only issue in dispute was the amount of the civil penalty to be ordered. ACCC sought a penalty of $1.5m submitting that as one of the largest florists in Australia, significant penalties must be imposed to achieve specific and general deterrence (at [115]), particularly as the representations persisted in respect of nearly all products on the website for a period of four years, during which time Bloomex generated

revenue of $38m (at [117]). Bloomex contended a penalty of $350k would be appropriate (at [133]-[138]) including on the bases that Bloomex had suffered a net loss of $1.8m in 2022 and a high penalty might cause Bloomex to cease operating in Australia (at [169]), and that the impact on consumers was minimal because flowers are a discretionary spend.

Anderson J set out the principles applicable in respect of civil penalties (at [100]-[114]) and identified that it was proper to assess the penalty by reference to the course of conduct principle and the totality principle [147]. His Honour found that Bloomex’s wrongdoing in respect of the discount and star rating representations was serious in nature (at [148]). He considered the total product price representations were of lesser seriousness, including because if the surcharge had been incorporated into an express delivery fee it would not have amounted to a contravention of s48 (at [149]). His Honour considered various factors (at [150]-[161]), including Bloomex’s size and financial position (at [162]-[169]), noting that the fact a penalty may cause a company to cease operating does not prevent the Court from imposing a penalty that achieves the objective of general deterrence (at [169]). Anderson J concluded that a penalty of $1m was sufficiently high to deter repetition specifically and generally (at [170]).

CONSUMER PROTECTION

Insurance contracts and unfair terms – whether “tell us if anything changes” term in insurance contracts is unfair – interaction of ASIC Act unfair contract terms regime with Insurance Contracts Act

In Australian Securities and Investments Commission v Auto & General Insurance Company Limited [2024] FCA 272 (22 March 2024) the Australian Securities and Investments Commission (ASIC) contended that home and/or contents insurance policies containing notification obligations on the part of people insured were unfair within the meaning of ss12BF(1)(a) and 12BG(1) of the ASIC Act. The case concerned contracts for insurance issued under various brands such as Budget Direct, ING and Virgin Insurance, entered into from 5 April 2021. This was the date on which legislation came into effect following the Hayne Royal Commission that amended the Insurance Contracts Act 1984 (Cth) (ICA) to make insurance contracts subject to the consumer protection regime in the ASIC Act.

The PDS for the insurance contracts contained a notification clause sub-headed, “Tell us if anything changes while you’re insured with us”, which ASIC contended was unfair within the meaning of s12BF(1) (a) of the ASIC Act.

In construing the meaning of the notification clause, Jackman J rejected as leading to absurdity, a literal meaning of the word “anything” (at [41]). His Honour considered that when read in the context of the PDS and other contractual documents, and in light of the purpose of insurance contracts, the notification clause requires the insured to notify the defendant if there is any change to the information about the insured’s home or contents that the insured

had already disclosed to the defendant (at [42]-[46] and [62](a)). He also concluded it meant that if the insured failed to notify the defendant, the defendant had the right to refuse to pay a claim, reduce the amount it paid, cancel the contract or not offer to renew the contract, and such measures would need to be consistent with commercial standards of decency and fairness (at [62(b)]).

In order to determine if the notification clause was unfair, Jackman J considered the criteria in s12BG(1) as to whether the term produced a significant imbalance in rights and obligations, was not reasonably necessary to protect legitimate interests, and would cause detriment if relied on, taking into account the extent to which the term is transparent.

On the issue of imbalance, ASIC submitted that a novel question was raised as to the interaction of the unfair terms regime of the ASIC Act and s54 of the ICA, which reduces the insurer’s liability to the amount that fairly represents the extent to which the insurer’s interests were prejudiced by an act of the insured. ASIC submitted that the unfairness of the term of the contract is to be assessed without reference to s54 of the ICA (at [77]), which would cause a significant imbalance. The Court rejected this argument. Jackman J found that the notification clause is to be construed in the context of the obligation to act with the utmost good faith as required in s13 of the ICA as part of the overall legal environment in which the terms of the contract operate (at [80]). This means that insurers must act consistently with commercial decency and fairness (at [81]). His Honour considered that this duty would prevent the defendant from any opportunistic reliance on the notification clause (at [82]) and meant that the substantive effect of s54 of the

ICA is consistent with the notification clause on its proper construction. Accordingly, his Honour considered it not necessary to consider how the analysis required by s12BG(1) of the ASIC Act relates to s54 of the ICA (at [82]). His Honour considered the defendant’s legitimate interests include its ability to choose which risks it will insure against (at [91]) and that it is reasonably necessary to protect those interests to be able to obtain information relevant to those risks [at [92]).

Jackman J accepted ASIC’s submissions that reliance on the notification clause would necessarily be to the detriment of the insured, even if that disadvantage is not significant or substantial (at [97]). On the issue of transparency, the Court also found in favour of ASIC that s12BG

LEGAL PROFESSIONAL PRIVILEGE

Multiple purposes – whether forensic investigation report created for dominant purpose of legal advice

In Singtel Optus Pty Ltd v Robertson [2024] FCAFC 58 (27 May 2024) the Full Court determined an application for leave to appeal from orders of a primary judge following the primary judge finding that the Optus parties (Optus) had not established their claim for legal professional privilege (LPP) over a forensic investigation report prepared for Optus by Deloitte (Deloitte Report). The Deloitte Report concerned a data breach involving the release of approximately 9.5 million customers’ private and confidential information held by Optus, apparently as a result of a cyber attack in September 2022. The Deloitte Report was

commissioned at a time when Optus faced potential legal threats and challenges, including prospective class actions, regulatory investigations, customer claims and the need for advice concerning remedial steps required by legislation and regulations applying to Optus (at [2]).

The primary judge accepted that Optus’ general counsel and company secretary (General Counsel) formed the view that the cyber attack would likely lead to one or more regulatory investigations, and subsequent litigation, and that the litigation and legal risks arising from the cyber attack were at the forefront of his mind when he first became aware of the cyber attack. The primary judge accepted that one of Optus’ purposes in procuring the investigation and report by Deloitte was the purpose of obtaining the report to assist the General Counsel, his legal team, Ashurst, and counsel retained by Ashurst to provide legal advice to Optus in relation to the litigation and regulatory risks Optus faced as a result of the cyber attack (legal purpose). However, the primary judge concluded that Optus had multiple purposes in procuring the review and report by Deloitte, and rejected Optus’ claim for LPP on the basis that Optus had failed to discharge its onus to show that the legal purpose for procuring the Deloitte Report was dominant (at [3]).

Optus submitted to the Full Court that the primary judge erred in failing to find that the Deloitte Report had been created for the dominant purpose of enabling Optus to obtain legal advice or the provision of legal services to Optus for the purpose of actual or anticipated legal proceedings (at [4]).

Before the primary judge, Optus sought to discharge its onus to show a privileged purpose was dominant by relying on the affidavit evidence of Optus’ General Counsel and the inferences which it submitted arose from that evidence. That

affidavit evidence was unchallenged as the General Counsel was not cross-examined.

The relevant principles applicable to Optus’ claim for LPP were not in dispute (at [23]-[32]). As the dispute related to pre-trial disclosure, it was to be determined by reference to common law principles. At common law, LPP applies to confidential communications made for the dominant purpose of the client obtaining legal advice or for use in litigation or regulatory investigations or proceedings. The Full Court held that the primary judge’s judgment was not attended with sufficient doubt to warrant a grant of leave to appeal. Murphy, Anderson and Neskovcin JJ stated, “the primary judge was correct to find on the evidence that there were multiple purposes for which the Deloitte Report was commissioned and that the evidence did not establish that the Deloitte Report was procured for the dominant purpose of Optus obtaining legal advice or for use in litigation or regulatory proceedings” (at [46]).

Relevantly, the primary judge found that Optus had multiple purposes, being (i) a legal advice or litigation or regulatory proceeding purpose; (ii) a purpose more generally to identify the circumstances and root causes of the cyber attack for management purposes; and (iii) a purpose of reviewing Optus management’s policies and processes in relation to cyber risk (at [48]). Optus did not dispute that the non-privileged purposes in (ii) and (iii) existed, but argued the legal purpose in (i) was the dominant purpose. However, the affidavit from Optus’ General Counsel did not address or acknowledge the existence of the non-legal purposes shown by the evidence, nor explain or attempt to contextualise the non-legal purposes as opposed to the legal purpose and thereby establish that the legal purpose was Optus’ dominant purpose (at [50]).

The Full Court rejected Optus’ submission that the primary judge was bound to give overwhelming significance to the frame of mind of Optus’ General Counsel for the purpose of establishing that the legal purpose was the dominant purpose, nor bound to accept his unchallenged evidence. The General Counsel’s evidence was only part of the necessary analysis (at [55]). The primary judge’s analysis took into account other contemporaneous documentary evidence and inferences that arose from the evidence as a whole (at [60]) including: (a) Optus’ public statements in relation to Deloitte’s investigation, including specific words attributed to the CEO in a media release; (b) the terms of the draft and final resolutions confirming the engagement of Deloitte and the history of the amendments to a resolution drafted by the General Counsel; (c) communications between the General Counsel and the Board at the relevant time; and (d) the fact that Deloitte had already commenced work before the Deloitte engagement letter of 21 October 2022 was issued in circumstances where it was not clear that that work was being done under the auspices of Ashurst.

The Full Court stated that the primary judge correctly took into account that no evidence was given directly by the CEO or the Board members concerning the purpose of the investigation and said that Optus’ failure to adduce evidence from its CEO fortified the conclusion that Optus had not established that the legal purpose for the investigation was the dominant purpose (at [61]).

The Full Court stated that the primary judge was not obliged to treat evidence of Optus’ General Counsel as determinative regarding the purpose of the Deloitte Report simply because he was not crossexamined. Murphy, Anderson and Neskovcin JJ explained (at [66]): “Optus’ repeated submission that his evidence was ‘unchallenged’ and must be accepted

is misconceived. It may, depending on the particular circumstances of a case, be ‘wrong, unreasonable or perverse’ to reject unchallenged evidence, and such an error may be a basis for overturning a decision, but there is no rule of law that a court must accept unchallenged evidence: Ashby at [78] citing Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587-588 (Samuels JA). The fact that generalised evidence is not challenged in cross-examination does not mean that such evidence must be accepted, particularly when it is inadequate and the totality of the evidence points to its rejection, as it did in this case”.

A separate proposed appeal ground concerning the time for assessment of dominant purpose also failed (at [84]-[96]).

PENALTIES

Contraventions of civil penalty provisions – discount for cooperation and acknowledgment of liability

In Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2024] FCA 576 (4 June 2024) the Court was determining civil penalties for admitted breaches of s558B(1) of the Fair Work Act 2009 (Cth) (Act) by the respondent as a “responsible franchisor”. The contraventions by the franchisees concerned underpayment of employee award entitlements and related record keeping deficiencies. Section 558B(1) imposes liability on a responsible franchisor entity for contraventions of civil remedy provisions under the Act by its franchisees, but only where the franchisor or one of its officers knew, or could reasonably be expected to have known, that the contraventions by its franchisee would occur (s558B(1)(d)(i)), or contraventions of the same or a similar

character were likely to occur (s558B(1) (d)(ii)).

The dispute before the Court was the quantum of civil penalties for the admitted contraventions. The regulator sought an overall penalty of $1,604,610 after a 10 per cent discount for cooperation by way of admissions. The respondent sought substantially lesser overall penalties and a higher discount for cooperation of 20 per cent (at [13]).

The Court applied the well-established principles for the imposition of civil penalties including by reference to the decision of the High Court in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450 (at [30] onwards).

A key dispute between the parties was to the level of discount for cooperation, contrition and the impact on deterrence (at [52]-[60]). Bromwich J stated he considered it useful to give a general indication of the appropriate approach to be taken in relation to such discounts, while noting what he proposed is “not of universal application” and “not rigid” (at [57]).

With those caveats in mind, Bromwich J said (at [58]): “The following is the approach to discounts for cooperation that I have decided to apply to an otherwise appropriate penalty in this case, and perhaps to future cases, each of which is predicated upon the regulator accepting the admission as being in full satisfaction of the contraventions alleged in the originating application and any associated concise statement or statement of claim:

1. Admission of liability before the proceedings have commenced or soon after they have commenced: 25% discount.

2. Admission of liability in the defence that is filed: 20% discount.

3. Admission of liability after the defence has been filed, but before the proceeding is listed for trial: 15% discount.

4. Admission of liability after the proceeding has been listed for trial but before the trial commences: 10% discount.

5. Any admission of liability that takes place after the trial has commenced: no discount.

What is important about the above is the structure, rather than the particular percentages”.

The Court applied a 15 per cent discount in this case (at [60]) and, having regard to all relevant factors, ultimately ordered penalties of $1,440,000 (at [87]-[88]).

PRACTICE AND PROCEDURE

Circumstances when Court prepared to make ex parte interlocutory relief

In Transportable Shade Sheds Australia Pty Ltd v Aussie Shade Sheds Pty Ltd [2024] FCA 584 (4 June 2024) the Court heard an Urgent Application Before Start of a Proceeding filed on 1 June 2024 by the prospective applicant, that was brought ex parte. The prospective claims were infringement of intellectual property rights and use of confidential information.

The Court made observations on circumstances when the Court is prepared to make an ex parte order. Collier J (at [35]) cited Isaacs J in Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679 at 681-682: “There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of

being heard in defence. But instances occur where justice could not be done unless the subject matter of the suit were preserved, and, if that is in danger of destruction by one party, or if irremediable or serious damage be imminent, the other may come to the Court, and ask for its interposition even in the absence of his opponent, on the ground that delay would involve greater injustice than instant action. But, when he does so, and the Court is asked to disregard the usual requirement of hearing the other side, the party moving incurs a most serious responsibility (emphasis added)”.

The Court further stated (at [36]) that an applicant for an ex parte order is under a heavy burden to disclose all relevant facts: Bullock; Town & Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Ltd [1988] 97 ALR 315 at 317; P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] 255 ALR 466 at [137]- [138].

In the circumstances of the case, at the present interlocutory level, Collier J accepted the rationale behind the ex parte application (at [37]).

Dan Star KC

Dan is a Senior Counsel at the Victorian Bar, P. (03) 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

Family Court Judgments

MONTH 2024 / MONTH 2024 LIJ

PROPERTY

High Court Rules 2004 (Cth) permitted the appointment of a representative of the deceased’s estate prior to letters of administration –No error in findings as to ownership of funds and properties between spouse parties and husband’s parents where the evidence was unreliable, confusing and contradictory

In Wei & Xia [2024] FedCFamC1A 65 (24 April 2024) the Full Court (Aldridge, Hogan and Kari JJ) heard an appeal from property orders made by Harper J in proceedings between a wife, husband and the husband’s parents (“the parents”).

The primary dispute related to $13,551,604.98 applied towards assets in the husband and wife’s names. Harper J found that the parents owned the funds such that they beneficially owned particular property ([3]). The wife appealed.

The husband’s mother died prior to the appeal hearing. Letters of administration had been sought but not granted ([6]).

The Full Court said (from [9]):

“ … There is no provision in the Family Law Rules for the appointment of a representative pending a grant of probate or letters of administration. An administrator ad litem … requires a formal grant (Hewitt v Gardner [2009] NSWSC 705).

[10] In that case, Ward J … applied r 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW), which permit the Court to ‘appoint a representative of the deceased person’s estate for the purposes of the proceedings’. There is no equivalent

rule in the Family Law Rules, but there is in the High Court Rules 2004 (Cth)…

[11] Section 56(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that where the Family Law Rules are insufficient, the High Court Rules apply … ( … )

[13] We were thus satisfied we had the power to make the order sought …”

Dismissing the wife’s appeal, the Full Court described the 23 day trial as “extremely difficult” which included translated evidence and documents that were “confusing and contradictory ([14] & [16])”. The Full Court said (at [84]):

“… We consider that the extensive passages from his Honour’s reasons indicate that after considering the evidence as a whole, his Honour was not only satisfied that the wife had failed to prove her case but was also satisfied that the funds were owned by the parents. … ”

PROCEDURE

Pro-forma medical certificate inadequate for the purpose of explain ing non-attendance at electronic court event – Court erroneously relied on certificate to set aside orders made in the absence of the husband

In Novikov [2024] FedCFamC1A 56 (11 April 2024) McClelland DCJ, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a wife’s appeal from a decision setting aside orders which related to the husband’s non-appearance in those proceedings.

The husband failed to appear at the hearing on 29 June 2023 and his application was dismissed.

The husband successfully had the June 2023 orders set aside on the basis that his ill health was a reasonable excuse for his non-attendance ([2]). The wife appealed. McClelland DCJ said (from [20]):

“It is apparent from [the reasons] … that the decision of the primary judge to set aside the earlier orders was his satisfaction that … the applicant husband was ‘sick’, such that he was unable to participate… ( … )

[26] The question as to whether the first respondent’s ill health was such that he was unable to participate … needed to be considered in the context where the proceedings were to be conducted remotely by way of Microsoft Teams… ( … )

[32] The relevant principles as to what constitutes an adequate medical certificate for the purpose of either adjourning proceedings or explaining non-attendance were helpfully summarised by Pepper J in UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 … ( … )

[33] … I am of the view that, with the greatest respect to the primary judge, the medical certificate relied upon … has no probative value. This is because the certificate did not address the critical question. That is, the nexus between what was described in the medical certificate … and how that pain and/or fever was of such a nature that it precluded him from either participating … by electronic means and/or instructing his legal advisor … The question as to the first respondent’s fitness for work was irrelevant…”

McClelland DCJ allowed the appeal and re-exercised the discretion to dismiss the husband’s application. The husband was ordered to pay the wife’s costs of $10,000 and the Child Support Registrar’s costs of $2,778.

PROPERTY

No property adjustment where 5 year “on again/off again” childless de facto relationship was followed by 5 years of litigation – De facto husband had already received a $200,000 interim property adjustment

In Daultrey & Tavener [2024] FedCFamC1A 64 (22 April 2024) Campton J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard a de facto husband’s appeal against Judge Tonkin’s orders that made no property adjustment.

The 63 year old de facto husband and 54 year old de facto wife had been in an “on again/off again” childless de facto relationship between February 2009 and November 2014. The litigation had lasted for five years at the time of final hearing ([2]).

An order was made earlier in the proceedings for a payment of $200,000 to the de facto husband by way of interim property adjustment. The trial judge determined that it was not just and equitable to make any further adjustment ([4]-[5]).

Campton J said (from [45]):

“After making findings as to assets, liabilities and financial resources … the primary judge undertakes the fundamental task outlined by the High Court in Stanford v Stanford [2012] HCA 52…

[46] Upon the determination that it was not just and equitable to adjust the

property of the parties because the s 90SM(3) mandate had not been achieved, the primary judge appropriately did not evaluate the contributions or any adjustment thereto, whether in percentage or monetary terms …

( … )

“… The approach adopted by the primary judge in considering the s 90SM(4) factors, was both available and legitimate in the circumstances of this case, having regard to:

(a) It being reflective of the way the parties conducted their short, disrupted relationship, characterised by maintaining a strict division of their separate income and finances and the method by which they dealt with property;

(b) How the litigation was approached and presented by each of the parties; and (c) It being supported by the non-financial contributions of the appellant not looming as material.”

The appeal was dismissed and an order was made for the de facto husband to pay the de facto wife’s costs, fixed at $15,000.

PROPERTY

Husband’s unsuccessful attempt to engineer a just and equitable outcome via deeds poll – Court rejects his “implicit case” that his financial contributions were superior to wife’s non-financial and homemaker contributions

In Morris (No 7) [2024] FedCFamC1F 12 (23 January 2024) Campton J heard a case in the Major Complex Financial Proceedings List where the Court identified the asset pool to be $740,976,274 ([201]).

On 18 September 2023, the husband made declarations of trust in favour of

the wife by way of deed poll ([130]). In late 2023, the wife disclaimed the three deeds pool made by the husband ([135]).

The husband contended that it was not just and equitable to adjust property pursuant to s 79. The wife said that the outcome sought by the husband would result in her receiving a maximum of 4 per cent of the asset pool ([9]), whereas she sought an equal adjustment ([6]).

Campton J said (from [411]):

“The husband submitted that as a consequence of ‘the arrangements [he] put in place … the wife will be in a much better financial position than if the marriage had continued on foot’…

[412] He submitted that … it cannot be just and equitable for the alteration of property rights in circumstances where the relief sought has been declared and then repudiated. …

( … )

[431] … I do not accept that the parties maintained a separation of their real property interests in the fashion submitted by the husband. The circumstances surrounding the acquisition conservation and improvement of these real properties were part of a joint endeavour of the parties.”

Campton J concluded (from [468]):

“… I conclude that contributions ought to be assessed favouring the husband as to 75 per cent and the wife as to 25 per cent. … In dollar terms, this equates to $555,732,206 to the husband and $185,244,068 to the wife – a difference of $370,488,138.

( … )

[483] I find a consideration holistically of the factors outlined above warrants an adjustment from the contribution finding of the property in favour of the wife of 2.5 per cent. In dollar terms, this represents an adjustment of the property to the wife of $18,524,407…”

Orders were made for the transfer of property and cash payments to the wife to result in her receiving $203,768,475 ([492]).

PROPERTY

Division of available pool between appellant’s two de facto wives was just and equitable – His “multiple deliberate non-disclosures” and having “not credibly accounted for” his spending of $1,300,000 of second wife’s funds considered under s 90SF(3)(r)

In Farrah & Cisek [2024] FedCFamC1A 38 (28 March 2024) the Full Court (Tree, Baumann & Williams JJ) heard a de facto husband’s appeal from final property orders of Hartnett J. It was ordered that 100 per cent of the proceeds of sale of the appellant’s real property and superannuation be awarded to the first de facto wife, after payment of $625,711 to the second wife (second respondent).

The second wife, represented by a litigation guardian, was in a relationship with the appellant after his relationship with the first wife ([2]).

As to the Court’s approach to multiple de facto partners, the Full Court said (from [33]):

“Sensibly in this case where the primary judge was dealing with two de facto relationships … her Honour structured her reasons for judgment by making findings about the contribution based entitlements arising from each relationship before … making findings about the “section 90SF(3) matters as applicable to all parties”.

( … )

[35] The usual way in which defective disclosure is taken into account is either by adding a sum to the pool … or under s 90SF(3)(r) of the Act …

[36] It is clear that … her Honour was not able to make any reliable estimate of

the value of the appellant’s undisclosed property.

( … )

[43] Having found that the appellant already had control of substantial undisclosed funds, the available pool was divided between the first respondent and the second respondent.

( … )

[45] The adjustment of 35 per cent in favour of the first respondent under all considerations prescribed by s 90SF(3) of the Act … was supported by the primary judge’s findings … including the significant disparity comparatively between the appellant and the first respondent in relation to income, earning capacity, property and financial resources – mostly undisclosed…”

The appeal was dismissed, with costs fixed at $20,000 for the first respondent and $5,000 for the litigation guardian for the second respondent.

CHILDREN

No error by court requiring ICL to draft orders as ICL’s position was accepted – Parenting orders regarding the child of a third party were not procedurally unfair as that party was aware of the proceedings and had given evidence

In Marchini [2024] FedCFamC1A 47 (4 April 2024) Christie J heard a mother’s appeal against orders relating to five children, four of whom were children of the mother and father.

The paternity of the fifth child (“Child Z”) was in issue. She was not spending time with the father and had never been introduced to him ([3]). Child Z lived with the mother and her new partner (“Mr B”). The trial judge ordered that, subject to paternity testing, all five children spend time with the father.

The mother appealed, claiming that there was a denial of procedural fairness as

Child Z lived with Mr B full-time and he was a person whose interests were affected; and that the requirement that the independent children’s lawyer (“ICL”) draft the final orders was procedurally unfair ([10] & [16]).

Christie J said (from [13]):

“[13] … [T]he evidence may have been capable of establishing that Mr B was … a person with an interest in the care, welfare and development of Z. But that conclusion could only entitle him to standing – it did not make him a necessary party… ( … )

[17] The Full Court recently observed in Aitken & Aitken [2023] FedCFamC1A 69 … [that]: ( … )

35. ... delegating responsibility to the parties to conceive the nature and form of the orders required to quell the controversy between them arguably amounted to an abdication of judicial duty. ...

[18] … However, the circumstances are different in the following material ways:

(a) The ICL outlined a proposal for supervised time graduating to unsupervised time;

(b) The primary judge indicated that he would make orders in those terms;

(c) The primary judge gave the parties time to review … ;

(d) The primary judge gave the parties time to make submissions … ; and

(e) The appellant’s lawyer did make submissions about the proposed orders.

[19] It follows that I do not accept … that the appeal should be allowed because of procedural unfairness.”

CHILDREN

Mother’s application for international relocation of a 6 year old child refused – Mother deposed to her intention to relocate with or without the child – Order for the child to remain living in Sydney with father if mother relocated

In Rana & Macaulay (No 2) [2024] FedCFamC1F 82 (23 February 2024), Kari J heard a mother’s application to relocate from Sydney to Country D with the child who was born in 2017 (“X”). The mother was born in Country D and planned to relocate there with or without the child. The father intended to remain in Sydney and sought that X remain living in Sydney either with him or the mother. Kari J said (from [47]):

“A significant feature of the mother’s case … was the state of her mental health.

[48] … [T]he mother had been diagnosed with anxiety and depression …

[49] The significance of the mother’s mental health from her perspective is that her case rested on the proposition that her mental health would improve significantly if she were able to relocate to Country D… ( … )

[59] I am conscious that … the mother indicated that she did not accept … [the single expert] Dr R’s opinion; particularly his opinion that the mother had a good prognosis whether she lived in Australia or Country D… ( … )

[61] What was striking however … is that … the mother did not appear to have fully thought through the impact of her plans to relocate to Country D with or without X, nor the practicalities of doing so. To that end, it appears that whilst in every other respect the mother’s care of X cannot be faulted, where the topic of her relocation to Country D is concerned, she appears to have become fixated and

intractable such that X’s best interests appear to have taken secondary preference to the mother’s…”

Kari J concluded (from [116]):

“ … [O]n balance I have formed the view that X’s best interests are served by remaining in Australia.

[117] I accept that this will necessarily mean that X’s primary care will shift to the father, but I consider that in all of the circumstances of this case, the mother’s interests and freedom of movement must give way to the best interests of X.”

Appeal – Court correctly accepted single expert’s business valuation based on the husband’s instructions, as the wife did not challenge his instructions at trial

In Laska & Garvey (No 3) [2024] FedCFamC1A 34 (22 March 2024), Tree J heard a de facto wife’s appeal against the refusal of her application for an adjournment and the property orders made thereafter.

The parties (referred to in the judgment as “husband” and “wife”) had a de facto relationship of about 20 years which produced six children. The primary asset of the parties was a business “B Group” which was valued by a single expert at $3,066,000 ([4]).

The trial judge divided the asset pool 60:40 in the wife’s favour.

The wife said that the Court erred by accepting the single expert business valuer’s opinion of B Group, where the expert (“Ms AR”) formulated her opinion upon the husband’s instructions that related party receivables of approximately $4,600,000 were not recoverable, notwithstanding that figure being recorded as recoverable in the audited financial statements ([25]).

Tree J said (from [51]): “… [A] party is ordinarily bound by conduct of their case at trial, such that new arguments cannot be raised on appeal (Metwally v University of Wollongong

(1985) 60 ALR 68), unless the point could not be met by evidence (Water Board v Moutsakis [1988] HCA 12) which is clearly not the case here.

( … )

[53] … Given time for reflection, the wife has now identified a line of crossexamination and submission which she should have raised at trial … ( … )

[58] It is true that there is a degree of tension between, on the one hand, the primary judge’s acceptance of the 30 June 2022 audited financials as reliable, and on the other, her Honour’s acceptance of Ms AR’s valuation of B Group which was prepared on her acceptance … of express instructions as to irrecoverability of those same loans … Her Honour must be taken to have been aware of the discrepancy identified by the valuer, because she expressly referred to it … and hence must have accepted that acting on the express instruction was reasonable. … ”

The appeal was dismissed and the wife was ordered to pay the husband’s costs of $29,570.37.