ACT Law_Society_Ethos_Winter_2025_FA_single

JOURNAL

Sir Richard Blackburn Lecture

Australian Lawyers and Australian Democracy in 2025

Evolution not revolution: Our governance journey

GenAI in the Courts

Navigating risks and professional obligations

Estate Tax Planning & Administration

More than just advice

At Nexia Canberra, we help individuals and families secure the financial future of the next generation with trusted estate tax planning services. Our estate planning experts ensure that the wealth you have built is transferred to your beneficiaries smoothly, tax-effectively and most importantly, according to your wishes.

As your trusted accountant, we also work closely with your legal and financial advisors to ensure that all aspects of your estate plan are considered and an effective plan of your design is in place.

When an estate moves from planning to administration, our experts remain at your side. We handle the deceased’s final income tax return, register the estate with the Australian Taxation Office and prepare all required estate trust returns. Our team can also provide tax advice, before or after an Estate needs to be administered, on how to avoid unnecessary tax on inheritances.

At Nexia Canberra, we add value by providing specialist estate tax advice and estate administration support that helps you manage your family’s wealth for future generations.

• Structuring testamentary trusts

• Asset protection strategies

• Intergenerational wealth transfers

• Strategic capital gains tax advice

• Main residence exemption issues

Spotlight: UK Inheritance Tax Changes

• International estate planning

• UK & Indian estate tax advice

• Foreign resident beneficiaries

• Overseas executors

• Superannuation death benefits

• Private ancillary funds

• Date of death tax returns

• Deceased estate tax returns

• Registering deceased estates

• Liaising with the ATO

Unlike Australia, the UK imposes 40% inheritance tax (IHT) on the net value of an individual’s estate on death over GBP £325,000. IHT reliefs may be available to reduce the UK IHT further. Australians with assets in the UK are usually liable to UK IHT on death in respect of their UK assets, which from 6 April 2027 will include UK pension funds. Our specialist UK tax advisory team regularly assists expatriates in structuring their affairs to mitigate this charge on their worldwide estate assets.

Recent reforms to UK tax law add another layer of complexity. From 6 April 2025, UK IHT will be determined by an individual’s long-term residence rather than their domicile. For the 1.2 million UK nationals now calling Australia home, this shift presents both risks and opportunities. By taking timely action such as avoiding long-term residence status at death and moving their assets outside of the UK, expats can ensure their worldwide estate is removed from the UK IHT net altogether. Furthermore, Australians living in the UK with Australian trusts are likely to be adversely affected by the UK tax changes.

Nexia Canberra’s specialist UK tax advisors can map the exposure, implement the optimal strategy, and ensure clients stay ahead of the recent UK IHT changes.

Our services Contact us

Naomi Smith Partner nsmith@nexiacanberra.com.au

Rory O’Brien Associate Director robrien@nexiacanberra.com.au

Anmol Kaurah

Manager

akaurah@nexiacanberra.com.au

actlawsociety.asn.au

EXECUTIVE COMMITTEE

President Vik Sundar

Vice-Presidents Andrew Allan Lisa Quilty

Secretary Kevin Robinson

Treasurer Mohamed El Roubi

Council-elected member Amanda Wescombe

COUNCILLORS

Catherine Coles

Andrew Giddings

Suzanne Howarth Ming Li

Sarah Milson-Mahy Louise Morris

Daniel Paterson Adam Peppinck

STAFF

Chief Executive Officer Simone Carton

The day to day operations of the Society are overseen by the Chief Executive Officer, supported by a dedicated and diverse team of staff.

Manager Engagement Jaime Shields

The Engagement Team is led by Jaime Shields. The team is responsible for policy and advocacy work for the Society and all member engagement, education, stakeholder engagement and community engagement.

Regulatory Services Manager Greg Williams

The Regulatory Services Team is led by Greg Williams. The team is responsible for all regulatory matters including licensing, complaint enquiries and assessments, professional standards, investigations, trust account compliance, disciplinary matters and external investigations.

Finance and Business Services Manager Lea McLean

The Finance and Business Services Team is led by Lea McLean. The team is responsible for the Society's financial requirements, office IT systems, HR requirements, and compliance.

CONTACT Level 1, 5 Constitution Avenue, 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, legal advice. For legal advice, please consult a solicitor.

The Law Society acknowledges the

and Ngambri

VIK SUNDAR PRESIDENT, ACT LAW SOCIETY

Leadership report

SIMONE CARTON CHIEF EXECUTIVE OFFICER, ACT LAW SOCIETY

Welcome to the Winter edition of Ethos, the dedicated journal for our members.

Over the past four months, the Society has continued to advance its commitment to supporting members and promoting excellence within the legal profession across the Territory. It has been a period marked by meaningful engagement and tangible progress.

Law Week 2025 saw strong engagement across the entire ACT legal community, offering a vibrant mix of informative sessions and networking events held both at the Society’s offices and elsewhere. The week opened in style with the Law Week Service Awards Dinner at Pialligo Estate—a night celebrating the values that underpin our profession and recognising the exceptional calibre of nominees and award recipients. A photospread from the evening can be found on page 52.

The week also featured the 2025 Blackburn Lecture, the Society’s annual tribute to Sir Richard Blackburn KC. This year, the Honourable Justice David Mossop delivered an insightful address, titled ʻAustralian Lawyers and Australian Democracy in 2025ʼ. His Honour’s reflections were especially timely, given the rapid evolution of generative artificial intelligence (GenAI) technology and its implications for legal practice. A full transcript is included on page 21.

The Society’s ongoing Governance Review has entered its next phase, with proposed changes now being drafted and reviewed by the Council. In this issue, the President provides an important update as Chair of the Governance Review Working Group on the progress and next steps of the review (see page 3). Members will continue to receive regular updates via email, and further details are available in the full article.

The Society also recently conducted a Complaints Management Survey, as part of an overall ‘health check’ of the complaints management process, focused on members’ experience with

the process. The experience and insights collated from the survey participants – whether as complainants, respondents, or support persons – will assist in informing our continuous improvement efforts and enhancing the transparency, efficiency, and fairness of the complaints management process.

The ACT Law Society team is hard at work behind the scenes to make our website more user-friendly and accessible for both the public and our members. A big thank you to our special interest committees for their valuable input in developing key resources that will support this upgrade.

The public-facing site is designed to help individuals find a lawyer suited to their legal needs and to better understand the client-lawyer relationship and what to expect. For members, the update aims to streamline access to essential information— from the latest news and resources to upcoming events and support tools.

We look forward to the official launch of the website and sharing it with our members.

Featured in this edition

• The consultation period for the proposed reforms to the Solicitors’ Conduct Rules (SCR) has now concluded; page 40 features a discussion of the outcomes of this consultation.

• The Society has recently relaunched its Anti Money Laundering/Counterterrorism resource, the AML/CTF Hub. On page 38, you’ll find a brief overview of the new page and information about how it can help you and your workplace prepare for the imminent changes to AML/CTF legislation.

• Beginning on page 7, two complementary articles explore GenAI: one examining its role within courtroom environments, and the other outlining the future AI competencies legal professionals may need to adopt.

We hope you enjoy reading this issue of Ethos.

VIK SUNDAR PRESIDENT, ACT LAW SOCIETY

Evolution not revolution: Our governance journey

I am proud to reflect on the remarkable journey our organisation has taken through our comprehensive governance review. A process that has been shaped, above all, by the voices of our members.

The governance review originated in 2020, with agreement of Council members at that time that there was a need for a more comprehensive review of the Society’s constitution, with the aim of modernising our structures and ensuring the Society remains responsive to the needs of our growing profession. The review was paused during a period of momentous change and uncertainty but recommenced in 2023 with renewed energy and focus. Since then, we have moved through distinct stages guided by an expert adviser on the governance review process: initial consultation and feedback from members, analysis of key themes and priorities, and the development of proposed changes to our governance framework. Each stage has been guided by our commitment to transparency and inclusive decision-making.

PHASES OF THE GOVERNANCE REVIEW

Why change our governance, and to what?

This year, the process is heading into the last planned phase. Throughout the year the working group has been looking at options and considering the best way to proceed. In July, the working group and Council advanced discussions on modernising the ACT Law Society’s governance framework and, following considered deliberation, endorsed the direction for changes to our current governance arrangements. In these discussions it was once again affirmed that the need to update our governance is not a critique of any individual involved in governance but rather the strengthening of the governance system which individuals operate in.

To progress the recommendations under consideration Council have authorised the working group to engage specialist external legal counsel. We in the working group are paying special attention to ensure that any changes under consideration are faithful to both our current arrangements and respectful of our members. As such, any recommended policy or by-law amendments will be brought to the Council for approval as part of its role as your elected representative body. Any changes to the Constitution will be subject to broader member approval via a vote at a General Meeting followed by approval by the ACT Attorney-General. Reforms are being phased to allow for orderly transition, with a focus on aligning ACTLS governance practices with contemporary standards, public expectations, legal compliance, and organisational capability.

While we have not yet received drafting advice on the specific form of changes, we have had agreement from the Council on the areas we are wishing to evolve. These are indicated below:

• Governance structures have been recognised as an area requiring evolution. The current Council and delegations framework is under review, with an emphasis on supporting Council and those delegated with authority (governance or regulatory authority) to contribute effectively, manage and identify conflicts of interest, and represent the full membership. Council is evaluating the necessary delegations essential for fulfilling the Society’s statutory regulatory responsibilities, strengthening fiduciary oversight, prioritising strategic planning and risk management, and optimising member service and support.

• Council service and leadership roles are being reconsidered to promote both continuity and renewal. Presently, all members step down annually, with officeholders (President, two Vice-Presidents, Secretary, Treasurer) elected directly, also on an annual basis. The proposed changes would introduce staggered terms and limits on consecutive reappointments for each role. Council is considering which office holder roles are essential and how to clarify the associated responsibilities. There is agreement that appointing the President as Chair of Council aligns with best practice, resembling the ‘Chair of the Board’ model. Additionally, the working group has recommended an improved nomination process, enabling candidates to present their skills and experience to members during elections.

We in the working group are paying special attention to ensure that any changes under consideration are faithful to both our current arrangements and respectful of our members.

• Eligibility criteria for nomination and an expanded Code of Conduct are being considered to align more closely with regulatory requirements, societal expectations and the higher standard now expected of directors at law. The updated framework will better reflect the principles of a self-regulating profession and provide transparent reasons for disqualifying individuals from running for or serving on Council, such as recent findings of serious professional misconduct, bankruptcy, or criminal convictions. An enhanced code of conduct for

all Council members will ensure that Council maintains legal and ethical alignment regarding its membership, including the capacity to suspend or expel members as appropriate. This approach supports governance integrity in a self-regulating context and adheres to standards applicable to corporate and not-for-profit directors.

• Operational flexibility in meetings and decision-making is identified as another important area for improvement. Current requirements for convening meetings do not reflect modern practices, particularly those involving technology, out-of-session decisions, or hybrid participation. Proposed constitutional amendments would formally incorporate these practices, including enduring provisions for electronic meetings, hybrid AGMs, and electronic voting. These reforms aim to foster wider member engagement and enhance organisational adaptability in line with contemporary expectations and operational needs.

• Enhanced transparency in remuneration and clarification of officeholder roles is also proposed. Council roles are voluntary, apart from the President which is a remunerated position, and the existing Constitution does not address remuneration for these roles. Therefore, there is an opportunity to instate a policy-based system to guide the payment of honoraria, particularly for high-accountability positions such as President, with annual reporting to members. Furthermore, ensuring elected officeholders have clear expectations of duties with associated performance standards allows your elected representatives to better demonstrate how they fulfil their duties.

Constitutional clarity and regulatory alignment are fundamental to all reforms under consideration. At present governance provisions exist variously within bylaws, terms of reference, interim policies introduced in 2023 at the start of the review process, or informal practices. The proposed revisions will embed essential elements within the Constitution or relevant policies, supporting greater clarity, responsiveness to evolving requirements, and minimising the necessity for frequent constitutional amendments for minor or procedural issues.

Delegations and accountability

A key feature of our current and future governance is the usage of delegations of authority – which is how Council assigns specific tasks, responsibilities, and decision-making authority to roles or groups. Such delegations are permissible under both the Legal Profession Act 2006 (with respect to regulatory authority, such as licensing and conduct decisions) and our current constitution (with respect to governance authority, such as operational oversight or specific governance functions such as oversight of audit and risk management). Delegations of authority enable organisations to operate more efficiently by empowering individuals or groups to contribute their expertise. You can read more about how the Australian Institute of Company Directors suggests delegations are used here.

Fueled by every member’s voice, we’re steering our governance toward a stronger, more responsive future.

While responsibility and authority can be assigned, it is important to recognise that accountability (i.e. the obligation to answer for the outcomes and decisions made) cannot be delegated and remains with the Council. In other words, although Council can delegate the process and the authority to make decisions (within defined parameters), they cannot delegate away their role in overseeing compliance and assuring the quality of the results. In this way, the Council remains connected to the success of delegated roles and groups and the integrity of the organisation. This allows Council the capacity to reflect on why and how we make decisions without being distracted by the minutiae of making each individual decision and provides an overarching layer of accountability for decision-making at the highest level of the organisation.

Delegation in focus

Delegations are not new to the Society – the Council already delegates constitutional or statutory decision-making authority to the Executive Committee, the Professional Standards Committee (PSC), and to the CEO and other individual staff roles. The PSC is an active example of delegations already in place.

The PSC is delegated authority by Council to independently make limited decisions regarding the investigation and determination of complaints made against lawyers, current and former legal practitioners and associates of legal practices. The PSC is empowered to review complaints, determine whether further action is required, and take appropriate steps within its delegated remit— such as issuing warnings, making recommendations for education or support, or referring matters to other delegates or authorities, as necessary.

While the PSC handles a wide range of conduct matters at the initial stage, Council retains ultimate accountability for the overall process, as described by the Legal Profession Act (2006), ensuring that the Society’s professional standards and public protection responsibilities are upheld.

What to expect and when?

During the meeting in August, Council considered new and Terms of Reference for delegated committees, ensuring everyone participating in these forums understand their role and responsibilities. The Council also considered by-law changes to support a transitional approach to the proposed changes and to address critical areas identified through the governance review process. More information will be shared with members over the coming weeks.

Following that, in September, Council’s focus will be on the external advice to update our Constitution, a document which has been progressively changed since its adoption in the 1980s but which has never had a complete review. The revised constitution and the rationale for any proposed changes will be shared with you ahead of the November AGM and further explained at an information session hosted by the Governance Review Working Group.

In October, you will elect new Council members under the criteria outlined in our by-laws and Council-approved nomination forms. The AGM in November will not only receive our Annual Report and announce election results but also provide a dedicated session to consider the proposed new Constitution. Early in 2026, Council will meet to finalise the adoption of an improved new governance and policy framework and develop policies to guide our Society into the future.

Looking Forward Together

This transition of governance is about more than rules and procedures; it is about ensuring a strong and responsive Society for every ACT legal practitioner. I am grateful for your engagement and trust as we move through each stage of this process. We have updated the FAQs, and you can see the information regarding our governance review at: actlawsociety.asn.au/about/ governance/GovernanceReview

Thank you for your ongoing support. Together, we are shaping the future of the ACT Law Society.

FIONA MCLAY MCLAY LEGAL CONSULTING

GETTING STARTED WITH

Generative AI

A practical guide from a lawyer turned generative AI implementation advisor

Imagine two lawyers, working at the same small law firm. Both have the same tech available, the same pressures from tight deadlines, demanding clients and the endless grind of keeping enough work coming in the door.

Jane lights up when talking about AI. She’s heard you can use it to produce blogs and social media posts that will deliver endless new client enquiries with minimal effort. Jane hasn’t found time to test out the AI solution that the firm trialled because she prefers to dictate letters to her secretary but she’s sure everyone else should be using it.

Rebecca doesn’t talk about AI as often, but the usage logs show she’s using it nearly every day to find relevant information from long documents, for first drafts of emails and to organise complex data in neat tables.

Generative AI isn’t magic. But for legal professionals who are willing to look past the headlines, and experiment with putting AI solutions to work, it can become a foundational part of efficient delivery of legal services in Australia. It is a mistake to dismiss the noise about the benefits of AI as just hype. AI solutions are being meaningfully applied every day for legal work in Australia, from solo practitioners to large global firms.

If like Jane, you have been thinking that AI may impact other kinds of legal work, like due diligence or high-volume personal injury matters, but it won't change the way you work then I encourage you to be more curious.

Understanding what AI powered solutions can do, and their limitations, is now a core competency, and increasingly part of legal research and effectively communicating with clients. Even if you aren’t using AI for work, it’s increasingly likely that your clients are and expect you to make use of the most efficient ways of delivering legal services. Inefficient and error prone manual processes like dictating drafts to be printed out and manually corrected or copy pasting information from one system to another are simply not commercially sustainable. Over the past five years I’ve helped over 120 lawyers and law firms to make better use of their existing technology and spot the tech they need to improve the way they work. I have seen firsthand the shift in attitudes that the introduction of generative AI solutions has brought about. Using generative AI solutions to accelerate legal service delivery is quickly moving from an experiment to every day normal. Recent surveys of legal practitioners and their clients consistently show a dramatic shift in attitudes to using AI for legal work.

• 79% of lawyers have adopted AI in some capacity (up from 19% the previous year) and 70% of clients were either agnostic or wanted lawyers to use AI1

• 81% of small firms and sole practitioners report integrating AI into their life and work (up from 25% the previous year)2

• 53% of professionals are experiencing at least one benefit from adopting AI3 .

If you only read the headlines about lawyers caught up relying on fake cases, it is easy to assume that generative AI solutions aren’t capable of the accuracy that legal professionals need. But these cases don’t reflect what well designed AI solutions are capable of when used responsibly to amplify human effort under close supervision. Generative AI tools can produce inaccurate results which look convincing but there are methods of grounding the output in trusted content to reduce the risk of hallucinations.

Legal generative AI solutions can outperform human lawyers for accuracy and speed. When benchmarked against a group of humans, CoCounsel, Harvey and Vincent outperformed humans in document analysis, key information extraction, and transcript summarisation—and in some cases carried out those specific tasks up to 80 times faster.4

Like a newly admitted graduate, the output of an AI tool always needs to be checked but they can significantly accelerate finding, categorising, and presenting key information allowing legal professionals to focus on the more valuable tasks. Instead of searching through hundreds of email attachments with vague file names, AI can summarise the files and help you narrow in on the relevant details. Instead of renaming files, you can focus on crafting the most persuasive argument in support of your client’s position.

AI powered solutions are changing the way people access information and how they communicate. Clients expect speed, transparency, and cost-effectiveness. They have seen automation in other service industries and that is shaping their expectations of the way legal advice is provided. In-house teams are investing in their own AI tools, potentially reducing work briefed externally. One survey found some clients trust AI generated explanations of legal concepts over human ones because AI uses more complex language but less words than human lawyers5

How can lawyers use AI powered solutions?

Practical use cases for AI tools include:

• Summarising long winded and repeated emails from anxious clients to extract the key information. You can also use AI to generate a kind and empathetic response, saving time and emotional labour of responding to repetitive emails

• Extracting the relevant information from long documents, like key lease provisions or permitted uses, quickly and at scale (for instance in due diligence)

• Compare various versions of events to identify factual disputes and potential inconsistencies in evidence

• Get status updates on where tasks are up to in your matter without wading through dozens of identically named emails saved in an electronic file

• Get a concise summary of a judgment before you do a more detailed reading when conducting legal research

• Help explain complex concepts tailored to your individual client’s needs and circumstances

• Prepare detailed chronologies from large sets of documents

• Generate bullet point summaries of the amendments made to a contract to speed up and facilitate smoother rounds of negotiations.

1 CLIO Legal Trends Report 2024.

2 Sm okeball State of Law Report 2025.

3 Thomson Reuters 2025 Future of the Professions.

4 VA LS AI Report vals.ai

5 ‘People Trust Legal Advice Generated by ChatGPT More Than a Lawyer, New Study’, The Conversation. (2025) theconversation.com/people-trust-legal-advice-generated-by-chatgpt-more-than-a-lawyer-new-study-252217.

What AI tools are available to help legal professionals

People often ask me which is the best AI. But like setting up a workshop, you are likely to need a collection of tools that can work together to deliver the desired results. You need to think through the capacity of what you have, the overall strategic objective and which solutions will deliver the most value for the way you prefer to work.

The tools most useful to legal professionals fall into three broad categories. This list is illustrative and by no means exhaustive but serves as a guide to get started.

Generalist AI

• ChatGPT

• Copilot

• Claude

• Bing

• Gemini

• Perplexity

• AI powered functionality in enterprise solutions like Canva, Notion, Adobe etc.

Legal-Specific AI

• Harvey

• CoCounsel

• Smokeball’s Archie

• LawY

Custom AI Agents

• SharePoint agents

• Copilot Studio

• Bespoke AI solutions

• Drafting, summarising, and web search

• Image generation

• Producing visually appealing presentations

• Copilot offers productivity boost with real time Teams meeting transcription, finding key information in your inbox, Teams chats, SharePoint etc., and managing your inbox

• Contract review

• Legal research

• Draft client communications

• Data processing, storage, security, and confidentiality protections need to be carefully assessed

• Assume that free versions are not appropriate for client and confidential data

• Risk of hallucinations

• Limits on ability to process large data

• More accurate and fit for legal use cases

• Check whether output is suitable for Australian context

• Understand data security and privacy protections

• Internal workflows

• Producing outputs in specific custom format

• Querying your own internal knowledge collections

• Rapidly changing area

• Requires documented standard processes and well managed knowledge databases

• Requires investment but can deliver close alignment with firm preferences

There is no one best AI for lawyers. Even lawyers in the same firm may have preferences for different kinds of AI assistance. AI tools vary in accuracy, relevance, and usability, and no single solution will serve all needs. Smart law firms are assembling a toolkit of complementary solutions that align with their strategic objectives, practice needs and their capacity for changing workflows to take advantage of technological advances. They are developing safeguard rails for responsible use of these tools in compliance with appropriate data security settings, professional and ethical obligations, usage guidelines issued by Courts and their client’s risk appetites.

Four common mistakes, and what to do instead

Despite the growing appreciation of the benefits and opportunities, I see law firms making similar avoidable mistakes in their approach to AI.

1. Thinking AI is great, but it isn’t appropriate for me

One litigation partner was contemplating putting on more staff because he had more work than he could manage. Initially he was dismissive of the idea that AI generated chronology could help. He accepted it could work in volume practices but felt that he needed to understand the nuance. He tested how AI could quickly process a bunch of email attachments and generate a structured and clear timeline in minutes. It produced a foundation that would otherwise have taken hours to build. He realised he needed to reassess his assessment.

Instead: Try out AI on a topic you know well and see how it goes before you dismiss it.

2. Assuming access equals adoption

One law firm implemented access to legal AI for all staff, but usage quickly fell off after the initial novelty wore off. Without training, support, or consistent leadership engagement, lawyers stuck to tried and tested ways of working. Giving access alone is not enough. Successful adoption requires a supportive environment where experimentation is encouraged, and results are shared.

Instead: Giving people dedicated 'AI time' for experimentation enables them to test new ways of working without fear of impacting daily billable targets.

3. Basing your assessment of AI capability on ChatGPT

While tools like ChatGPT are impressive and economically priced, they do not always match the performance of specific legal AI tools on complex legal tasks. I worked with a team that wanted to summarise witness interview transcripts and found that developing a dedicated AI solution, which was customised for their workflow, produced significantly better results.

Instead: Evaluate specialist legal AI tools to harness more targeted assistance on legal work.

4. We can’t afford AI

Lawyers often tell me that they can’t afford the AI tools that the big firms are using. They see AI as yet another challenge to be overcome and overlook the cost of doing nothing. But smaller teams have the advantage of being able to run focused experiments cheaply. Firms that delay engaging with the benefits of AI risk falling behind, losing clients, and facing operational inefficiencies that could have been avoided with a modest investment in the right technology.

Instead: Focus on value generated from more efficient workflows or tackling work you couldn’t previously get done, not the upfront cost.

AI in legal practice is not science fiction, nor is it the exclusive domain of large, multinational firms. It is a practical, accessible tool that is already reshaping how legal work is done in Australia.

AI isn’t for my area Visit chatgpt.com and ask it to explain something you know well, like explain a complex rule in your favourite sport or summarise a judgment you read recently

Access = Adoption Provide guided assistance on specific tasks that AI can help with and lead by example setting the expectation of regular AI usage

ChatGPT is good enough Explore legal-grade AI tools that have built-in understanding of legal concepts, professional grade security and are supported by teams who understand the way legal works.

We can’t afford AI Start small but target solving a problem your law firm needs to fix, then assess the value generated, not just the upfront cost.

A Roadmap for Immediate Action

“If you can use Outlook, you can use AI.”

Building AI literacy is essential. Lawyers who understand how to effectively leverage AI tools will have significant competitive advantages. They'll be able to serve clients more effectively, manage larger (or higher value) caseloads, and pursue more complex and interesting work.

All lawyers need to be able to recognise obvious signs that their client or another party has over relied on AI generated material. Getting familiar with how AI tools work will help you recognise the giveaways.

Professional conduct rules impose specific obligations on lawyers regarding client confidentiality, professional competence, and acting in the best interests of their clients. AI implementation must comply with these requirements, and lawyers must understand how AI tools affect their professional obligations. Australian privacy laws also create obligations around collection, use and storage of confidential information. This requires understanding what data you have, developing clear AI usage policies and managing compliance with those policies appropriately. If you aren’t sure, get help to set this up right from the start.

Don’t leap straight into complex automation of your entire workflow. Build up expertise but starting with smaller tasks that offer clear benefits and minimal risk. Building on incremental wins may seem slow but if you can sustain momentum, it builds a solid basis for successful broader adoption.

Adoption is easier when people can keep using familiar systems, so it is worth carefully evaluating AI tools for integration with your existing systems. AI tools that seamlessly connect with practice management software, document management systems and communication platforms are far more likely to deliver sustained value.

Training is essential. Lawyers and staff need guidance on how to use AI effectively and ethically. Providing specific examples of good use cases, such as how to generate a summary, extract key facts, or draft a client email, can help embed these tools into daily use.

Leadership engagement is also vital. When leaders openly discuss how they’re using AI, sharing what worked and what didn’t, adoption rates are significantly higher. This creates an environment where curiosity enables adaptive behaviour that will drive profitable resilient firms.

Conclusion

The time to lead is now

Legal work is becoming less about creating documents from scratch and more about editing, reviewing, and enhancing outputs generated by AI. This requires a shift in how lawyers are trained, supervised, and evaluated. It also presents opportunities to reconsider billing models and explore new ways of delivering legal services like subscription-based offerings or hybrid service tiers. We are seeing increased pressure on hourly billing models when tools that are up to 80 times faster are widely available. There is a lot to work through to find the best way to deliver legal services in a sustainable business model.

Every lawyer, whether a sole practitioner or a partner in a major firm, has a role to play in shaping this future. By embracing AI thoughtfully, strategically, and ethically, we can build a legal profession that is smarter, faster, and still deeply human.

USEFUL RESOURCES

Lex ExploreAI Series cli.collaw.com

Legally Digital Terri Mottershead’s curated guidance on LinkedIn

Centre for Legal Innovation Legal Prompt Engineering Guide

UK Law Society Generative AI – Essentials Guidelawsociety.org.uk/topics/ai-andlawtech/generative-ai-the-essentials

Publication

Tech-enabled lawyer: a guide to making the most of the tech you have and spotting the tech you need A framework for change in Australian law firms (not Generative AI specific).fionamclay.com.au/book

Fiona McLay is a former litigation lawyer and the founder of McLay Legal Consulting.

ANNIE HAGGAR PARTNER, HEAD OF CYBERSECURITY (AUS), NORTON ROSE FULBRIGHT

GenAI in the Courts

AMANDA WESCOMBE SPECIAL COUNSEL, NORTON ROSE FULBRIGHT

NAVIGATING RISKS AND PROFESSIONAL OBLIGATIONS

Artificial Intelligence (AI), in particular generative AI (GenAI), is rapidly transforming the way lawyers work. The integration of GenAI into legal practice has been swift and expansive, altering and streamlining the way tasks such as discovery, legal research, drafting, and document analysis are performed. As GenAI becomes more embedded into legal practice, lawyers must find a way to harness its efficiencies without compromising mandatory standards of confidentiality, ethics, and professional integrity.

This article sets out the current state of the art of GenAI in legal practice, outlines some of the risks of using GenAI by reference to ACT lawyers’ professional and ethical obligations and provides practical guidance for responsible use of GenAI tools by lawyers and firms.

Current uses of AI in the legal profession

GenAI, one branch of artificial intelligence, stands out because it can create new content, like text and images, based on user instructions. It is now being used by lawyers to analyse huge amounts of data, carry out legal research, draft documents, review contracts, and transcribe meetings, among other tasks.

a. One of the biggest areas of change promises to be in litigation, especially in discovery. Traditionally, discovery was slow and required a lot of manual effort. AI-powered tools can speed up this process by quickly reviewing documents, identifying patterns, and highlighting important information from large data sets.

b. Where used in legal research, GenAI can scan vast amounts of legal information, spot key issues, and summarise legal principles in minutes. These advances may enable lawyers to spend more time on complex analysis and strategy and potentially provide legal services more efficiently and at a lower cost (although see our comments below).

c. GenAI is also being used to draft legal documents and build arguments. These tools can produce first drafts of contracts, court documents, and client letters, using templates that match a firm’s style. GenAI can even suggest arguments and anticipate counterpoints.

Risks and pitfalls of using GenAI: professional obligations and ethical considerations

GenAI promises to improve efficiency and reduce costs, but its use in legal practice involves risks that must be managed carefully. Lawyers in the ACT must ensure GenAI use aligns with their professional and ethical duties under the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) and the Legal Profession (Barristers) Rules 2021 (ACT). Key obligations include maintaining client confidentiality, not misleading the court, acting honestly, providing competent and diligent service, and giving independent advice.

a. Ensuring accuracy: GenAI tools are not legal databases or search engines. They generate content by predicting likely responses, without true understanding of legal concepts and therefore cannot provide reliable logical reasoning. They may misinterpret legal texts, misunderstand concepts, or overlook critical distinctions in case law. This can result in errors or ‘hallucinations’: outputs that seem credible but are actually incorrect or fabricated. Even legal-specific GenAI tools are affected: a recent peerreviewed study found hallucination rates between 17% and 33% in three leading legal GenAI platforms, despite improvements from using retrievalaugmented generation (which limits retrieval of information to a domainspecific database).1

Lawyers must exercise care when using GenAI, as they remain responsible for the accuracy of all documents submitted to courts or clients. This includes checking for hallucinations and verifying all citations. Failing to do so may breach professional duties, such as the duty not to mislead the court, to act competently and diligently2, and the duty to not engage in conduct which is likely to diminish public confidence in the administration of justice or bring the legal profession into disrepute.3

Varun Magesh, Faiz Surani, Matthew Dahl, Mirac Suzgun, Christopher D. Manning and Daniel E. Ho, ‘Hallucination-Free? Assessing the Reliability of Leading AI Legal Research Tools’ (2025) Journal of Empirical Legal Studies 1.

2 Legal Profession (Solicitors) Conduct Rules 2015 (ACT), rule 4.1.3; Legal Profession (Barristers) Rules 2021 (ACT), rule 16.

3 Legal Profession (Solicitors) Conduct Rules 2015 (ACT), rule 5.

4 Dayal [2024] FedCFamC2F 1166.

5 See Murray on behalf of the Wamba Wemba Native Title Claim Group v State of Victoria [2025] FCA 731; Valu v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 95.

6 See Office of the Victorian Information Commissioner, Investigation into the use of ChatGPT by a Child Protection worker (24 September 2024) ovic.vic.gov. au/mediarelease/ovic-finds-department-responsiblefor-breaches-of-privacy-through-use-of-chatgpt/.

Serious consequences can follow if hallucinations are not identified and removed. In a 2024 Federal Circuit and Family Court case, a solicitor submitted a list of fictional authorities generated by an AI tool (incorporated in a legal practice management software subscription). Although Humphreys J accepted that the solicitor’s apology was genuine, her Honour determined that it was in the public interest for the solicitor’s conduct to be referred to the Victorian Legal Services Board and Commissioner.4 Other consequences may flow from hallucinated citations or documents, including delays to proceedings and the possibility that lawyers may be personally liable for costs arising from such errors.5

b. Applying professional judgement: Relying on GenAI as a replacement for human expertise is misguided and can be harmful. GenAI uses probabilistic reasoning, which differs from human legal analysis and can lead to serious errors. For example, in a child protection case, AI use downplayed the harm to a child and failed to protect personal information, as found by the Victorian Information Commissioner.6

Data leaks can have serious ethical and legal consequences for lawyers, potentially amounting to professional misconduct.

Over-reliance on AI may result in lawyers breaching their duties to act competently,7 maintain integrity and independence,8 uphold public confidence in the profession,9 and avoid misleading the court.10 Even with careful review, GenAI can introduce confirmation bias. Lawyers may unintentionally prompt AI to support a predetermined view, leading to one-sided or incorrect arguments. This feedback loop discourages critical thinking and risks breaching the duty to exercise independent judgment and avoid personal bias.11

c. Maintaining client confidentiality: GenAI poses risks to client confidentiality, as users may need to input confidential and sensitive information to generate accurate responses. This data can be stored, processed, or used to train future AI models, and may be exposed to third party users through later queries or system vulnerabilities. The risk increases if data passes through jurisdictions with weak privacy protections. Data leaks can have serious ethical and legal consequences for lawyers, potentially amounting to professional misconduct.12 Lawyers must ensure that they, their clients, expert witnesses, and supervised colleagues do not include confidential or sensitive information in GenAI prompts in public GenAI tools, and consider which AI tools are appropriate for sensitive tasks. Ensuring information remains confidential and in a controlled environment, is used only for the purposes of proceedings, and is not used to train an AI model, is necessary in order to avoid breaching the implied (Harman) undertaking not to use information produced under compulsion for any purposes extraneous to the proceedings without the leave of the Court.13

Lawyers should be careful even using ‘enterprise’ or ‘private’ GenAI tools to ensure that they are appropriately engineered and configured not to ’leak’ confidential information from one matter into the firm’s broader systems, and that confidential information is not used to train the GenAI tool. Firms should have in place an AI user policy that is appropriate for the firm’s context and train the users of the AI tools. Additionally, when engaging vendors, lawyers should ensure contracts and internal policies provide strong data privacy and cybersecurity protections.

d. Intellectual property, privacy, and data security: As GenAI outputs are typically based on existing information, using outputs may infringe on the intellectual property rights (especially copyright) of others. This may violate the duty to deliver legal services competently and diligently and reinforces the importance of ensuring that all outputs are thoroughly checked. Using GenAI tools which provide verifiable citations for their outputs can assist in reducing the risk of copyright infringement.

e. Costs: Lawyers should take care to only charge for the actual ‘legal work’ that is completed when GenAI tools are leveraged. Purported ‘efficiencies’ and ‘reductions in costs’ may not be realised (and in fact more costs may be incurred) where extra time is spent checking or fixing inaccurate outputs. ACT lawyers using GenAI should consider guidance from other jurisdictions regarding charging costs that are fair.14

7 Legal Profession (Solicitors) Conduct Rules 2015 (ACT), rule 4.1.3.

8 Legal Profession (Solicitors) Conduct Rules 2015 (ACT), rule 4.1.4.

9 See Legal Profession (Solicitors) Conduct Rules 2015 (ACT), rule 5.1.

10 See Legal Profession (Solicitors) Conduct Rules 2015 (ACT), rule 19.

11 See Legal Profession (Solicitors) Conduct Rules 2015 (ACT), rules 4.1.4 and 17.1.

12 See Legal Profession (Solicitors) Conduct Rules 2015 (ACT), rule 9; Legal Profession (Barristers) Rules 2021 (ACT), rules 103-106.

13 See Supreme Court of New South Wales, Practice Note SC Gen 23: Use of Generative Artificial Intelligence (Gen AI) (28 January 2025) (supremecourt.nsw. gov.au/documents/Practice-and-Procedure/Practice-Notes/general/current/ PN_SC_Gen_23.pdf ), paragraph 9A.

14 See Law Society of New South Wales, Legal Practice Board of Western Australia and Victorian Legal Services Board and Commissioner, Statement on the Use of Artificial Intelligence in Australian Legal Practice (6 December 2024) lsbc. vic.gov.au/sites/default/files/2024-12/Statement%20on%20the%20use%20 of%20AI%20in%20Australian%20legal%20practice_2.pdf (see “Charging costs that are fair, reasonable and proportionate”); see also Queensland Law Society Guidance Statement (24 October 2024) No.37 Artificial Intelligence in Legal Practice - Queensland Law Society (section 4.5 “Legal costs”).

Guidance from courts

There is little Australian precedent on professional obligations issues raised by improper uses of AI. Consequently, courts have tended to refer to guidelines and practice notes on GenAI, including those from other jurisdictions where none are available in the relevant jurisdiction.15 Guidance is available from the Supreme Courts of New South Wales and Victoria:

a. NSW courts have taken a conservative approach, generally prohibiting unapproved GenAI use for certain activities and requiring mandatory disclosure where it is allowed,16 and

b. in contrast, Victorian courts have issued guidelines which are less prescriptive, encouraging voluntary disclosure.17

Additionally, the Supreme Courts of South Australia18 and Western Australia,19 as well as the Federal Court,20 are developing their own guidance. The ACT Supreme Court commenced a consultation process on AI earlier this year, with the Chief Justice suggesting that the ACT would adopt the NSW Supreme Court’s guidance on AI use.21

Practical guidance for responsible GenAI use

There are some practical steps which ACT lawyers and firms can take to ensure their use of AI does not give rise to professional misconduct.

a. Understand GenAI: learn the basics of how GenAI works and complete any available training on its appropriate use in legal practice. Ensure you are using AI tools suited to the activity – never use public AI for confidential matters and only use ‘private’ or ‘enterprise’ tools that will keep all data confidential and secure.

b. Stay informed: keep up to date with legal and regulatory changes relating to AI, including court decisions, court practice notes and guidance from professional bodies. Use legal publications, ongoing education, and professional networks to build your GenAI literacy.

c. Assess suitability: decide whether GenAI is appropriate for each task. It is generally safer to use GenAI for lowrisk, easily checked tasks (like drafting routine emails) than for high-stakes work (such as preparing legal submissions or deciding on litigation strategy), which requires independent judgment.

15 Dayal [2024] FedCFamC2F 1166, [14]-[17].

16 Supreme Court of New South Wales, Practice Note SC Gen 23: Use of Generative Artificial Intelligence (Gen AI) (28 January 2025) (supremecourt.nsw.gov.au/ documents/Practice-and-Procedure/Practice-Notes/general/current/PN_SC_ Gen_23.pdf ), paragraphs 9A, 10, 16, and 20.

17 Supreme Court of New South Wales, Practice Note SC Gen 23: Use of Generative Artificial Intelligence (Gen AI) (28 January 2025) (supremecourt.nsw.gov.au/ documents/Practice-and-Procedure/Practice-Notes/general/current/PN_SC_ Gen_23.pdf ), paragraphs 9A, 10, 16, and 20.

18 Courts Administration Authority of South Australia, A statement from The Honourable Chris Kourakis, Chief Justice of South Australia launching a survey about use of Generative AI in the South Australian courts (30 May 2025) courts. sa.gov.au/2025/05/30/a-statement-from-the-honourable-chris-kourakis-chiefjustice-of-south-australia-launching-a-survey-about-use-of-generative-ai-in-the-south-australian-courts/.

19 Supreme Court of Western Australia, Artificial Intelligence practice direction: Consultation note (4 March 2025) supremecourt.wa.gov.au/_files/AI_practice_ direction.pdf.

20 Federal Court of Australia, Notice to the Profession: Artificial intelligence use in the Federal Court of Australia (29 April 2025) fedcourt.gov.au/ law-and-practice/practice-documents/notice-to-profession/29-april-2025.

21 Canberra Times, Prospect of AI-generated legal submissions ‘chilling’: judge (11 February 2025) (canberratimes.com.au/story/8886922/ act-chief-justice-lucy-mccallums-thoughts-on-ai-in-legal-system).

d. Review and verify outputs: treat GenAI-generated content as a draft only. Carefully review and verify all outputs for accuracy, quality, and legal compliance. Do not rely on GenAI to check its own work! Be especially cautious in unfamiliar areas of law. Also consider who is best suited to use GenAI tools – less experienced practitioners may not have sufficient knowledge or experience to properly evaluate GenAI outputs. Implement a firm policy where all GenAI content is second counselled.

…keep up to date with legal and regulatory changes relating to AI, including court decisions, court practice notes and guidance from professional bodies.

e. Protect confidentiality: do not enter confidential, sensitive, privileged or “OFFICIAL: SENSITIVE and above” information into public GenAI platforms (which is equivalent to placing it in the public domain), as this may compromise privacy, privilege, and Australian Government protective security requirements. Even with legalspecific tools (which are more likely to incorporate safeguards for confidentiality than public platforms), check the provider’s terms and consider the risks. Anonymise personal data where possible but be aware of the risk of re-identification.

f. Communicate the use of AI: let clients, courts, and colleagues know when GenAI tools are being used, where appropriate. Clients should be informed about any impact on costs.

Managing GenAI risks as a law firm

With GenAI becoming more common in legal practice, law firms must ensure its ethical and careful use. This means overseeing its use, protecting client interests, and making sure staff are trained to use AI responsibly. Firms should choose GenAI tools that suit their needs and review contracts to ensure strong confidentiality, data privacy, intellectual property, and cybersecurity protections. Clear internal policies should be set, specifying when and how GenAI can be used, how outputs are checked, and what training and safeguards are required.

Conclusion

GenAI is reshaping the legal landscape, offering unprecedented opportunities for efficiency, cost savings and access to justice. However, these benefits come with significant ethical and professional risks which legal professionals must manage when using GenAI technologies. By choosing appropriate tools, maintaining transparency, verifying outputs, and fostering a culture of responsible innovation, lawyers can harness the power of GenAI while safeguarding the integrity of the legal system.

ADDITIONAL AUTHORS

LILY HANDS

ASSOCIATE, NORTON ROSE FULBRIGHT

CAROLINE REJI

GRADUATE, NORTON ROSE FULBRIGHT

ANNIE HAGGAR PARTNER, HEAD OF CYBERSECURITY (AUS), NORTON ROSE FULBRIGHT

Briefs and breaches What every law firm needs to know about the Cyber Security Act

The Cyber Security Act 2024 (Cth) (the Act) implements four initiatives of the 2023-2030 Australian Cyber Security Strategy. In force since 29 November 2024, the Act introduces four new compliance pillars that tighten expectations on lawyers and law firms, from sole practitioners to global firms operating in Australia. Its goals are to improve the security of consumer ‘smart’ devices, track ransomware payments, promote voluntary threat intelligence sharing under ‘limited use’ protections and create a Cyber Incident Review Board with power to extract lessons from significant breaches for the benefit of Australians.

For leaders of Australian legal practices, many of whom already juggle privacy law, professional conduct rules and tough client expectations, the Act adds specific, time-stamped tasks that cannot be ignored. The guidance below distils each pillar into ‘Baseline’ (must-do) and three ‘Bonus’ (highermaturity) actions, so you can comply without having to navigate all the tech jargon.

But wait, does the Act even apply to my firm?

Not every limb of the Act will apply to each firm the same way. Each of the four pillars has its own trigger tests. For example, a sole practitioner who never gifts smart gadgets and stays under AUD $3 million in annual revenue will face a lighter compliance load than a global partnership with Australian offices, promotional smart device giveaways to clients and employees and complex cross-border incident response. Your task is to map each pillar against your firm’s footprint and risk profile, then action the duties that genuinely apply.

Security standards for smart devices

From March 2026, any business that supplies an internetconnectable consumer product (often referred to as Internet of Things (IOT) or ‘smart devices’) must give the recipient a manufacturer’s Statement of Compliance (SoC) confirming that the device meets Australia’s new baseline security standard. ‘Supply’ uses the Australian Consumer Law definition, capturing sale, lease, gifting and resale of smart devices.

Law firms aren’t typical IOT suppliers, but they will still encounter these rules if they:

a. procure smart devices from a supplier (for example, for use in the office), and

b. supply smart devices (for example, to clients or staff).

From March 2026, law firm procurement teams should treat a manufacturer’s SoC as a non-negotiable requirement for any smart device they procure and ensure that the supplier of those smart devices provides an SOC for each relevant device. This should be the case where the firm uses the smart device in the office, and where the firm intends to supply the smart device to clients or staff.

AMANDA WESCOMBE SPECIAL COUNSEL, NORTON ROSE FULBRIGHT

Common supply scenarios include client or staff gifts and conference promotional items (e.g. smart speakers, fitness bands, smart mugs), short-term loans (e.g. portable hotspots or smart projectors), or reselling surplus smart devices to staff. The Cyber Security (Security Standards for Smart Devices) Rules 2025 (the IOT Rules) exempt commonly procured devices (laptops, smartphones and others) from the requirements, but firms should be aware that the procurement of smart TVs for conference rooms, Wi-Fi equipment, connected coffee machines and refrigerators for office use, in addition to smart devices for on-supply to clients or staff (described above) will all fit the bill and from March 2026 will have a heightened security baseline.

Now is the time to ensure that any relevant devices the firm intends to purchase (for in-office use), or supply (to clients or staff) are on track for compliance – and to update procurement contracts and policies accordingly.

KEY DATES

The IOT Rules were registered on 4 March 2025. From 4 March 2026, supplying a non-compliant smart device in Australia will be unlawful.

Baseline recommendations for law firms:

• Audit procurement pipelines (what is in your FY25-26 budget?): order only smart devices whose manufacturers and suppliers commit to a SoC.

• Check ‘gift’ exposure: if your firm gives clients smart speakers or fitness trackers, obtain and keep those devices’ SoCs before gifting.

Bonus recommendations:

• Procurement contract uplift: add clauses requiring vendors to supply compliant devices, plus audit rights and indemnities for non-compliance.

• Liaise with IT supply chain: ensure that IT providers and your supply chain are across the changes and have implementation plans.

• Internal IoT policy: inventory and restrict noncompliant devices on firm networks; mandate patching cadences.

Mandatory ransomware and cyber extortion payment reporting

If your firm:

a. earned over AUD $3 million during the previous financial year1, and b. pays a ransomware or cyber extortion payment (or if someone pays on behalf of the firm), then you must notify the Australian Cyber Security Centre within 72 hours of the ransom being paid. The clock does not stop for weekends or public holidays. If an overseas parent or negotiator pays, the Australian entity still must report.

The reporting duty is designed to help authorities understand the scale of ransom payments and provide support to victims. Failing to report on time could expose your firm to regulatory action including fines.

KEY DATES

The mandatory reporting requirement started on 30 May 2025. Reporting to the Australian Cyber Security Centre (ACSC) is required within 72 hours of any ransom payment.

Baseline recommendations for law firms:

• Embed reporting into your firm’s Incident Response Plan: incorporate the 72-hour ransom reporting requirement into your firm’s cyber incident response plan now. Clearly define trigger points: as soon as a decision to pay is made or payment occurs, a report to the ACSC must be prepared. Assign a specific person or role the responsibility of drafting and submitting the report.

• Broadcast the rule globally: brief foreign affiliates and outside counsel so they alert you immediately after any payment.

• Pre-draft a report template: section 7 of the Ransomware Rules lists requirements for the information that the ransomware payment report must contain, and firms can prepare a template ahead of time.

authorise payment, governance steps and mandatory reporting. Accompany the policy with training for partners and IT staff so that key stakeholders are aware of the strict timelines and the need to loop in the response team immediately if a ransom scenario arises.

• 24/7 ‘response bench’ standby: make sure your response bench is ready:

• engage cyber counsel with after-hours and weekend response capacity to preserve privilege and meet the deadline;

• have cyber insurance in place and make sure you know what the steps are to ensure coverage; and

• if your cyber insurance doesn’t support technical incident response, and your cyber counsel doesn’t have relationships with technical vendors, know where you can get that support from (and consider an incident response retainer).

• Cyber insurance: review your firm’s cyber insurance policy. Many insurers require prompt notification of incidents and cooperation with regulators, and not reporting a ransom payment may jeopardise coverage.

Voluntary incident disclosure— ‘limited use’ One novel aspect of the Act is the introduction of a ‘limited use’ voluntary cyber incident disclosure regime. You may share cyber incident details with the National Cyber Security Coordinator under legal protections that prevent sharing or use of that information, although firms are on notice that this is not a ‘safe harbour’. Information you do share is shielded by law from being passed to third parties (including regulators such as the OAIC) or used for any activity other than as authorised under the Act. It is designed to support prompt and protected dialogue and assistance in cyber crises.

Unlike ransomware reporting, voluntary incident disclosure is entirely optional. So why consider it? Because sharing details of attacks can help your response (e.g. get government help to take down malicious domains or get threat intelligence) and also helps boost collective security. It helps aggregate threat intelligence and allow the government to warn others.

KEY DATES

In force since 29 November 2024.

Baseline recommendations for law firms:

• Add to firm’s Incident Response Plan: include a decision point (‘Do we make a voluntary limited-use report?’) after any significant incident.

• Nominate an ACSC liaison: assign a senior partner or general counsel (GC) to coordinate assessments and submissions.

• Legal privilege filter: have a relevantly qualified practitioner vet any disclosure.

Bonus recommendations:

• Decision framework: develop criteria (severity, client impact, need for help) to guide when you will disclose.

• Stakeholder tabletop: include voluntary reporting discussions in the next cyber simulation you run.

• Leverage support: maintain current ACSC contacts and understand assistance channels available once you report (e.g. 1300 CYBER1 or Report | Cyber.gov.au).

In an environment of escalating cyber threats, fulfilling these obligations is more than a tick-the-box exercise; it’s about protecting your clients, your practice and contributing to a safer digital ecosystem for all.

Cyber incident review board

The Act establishes a new Cyber Incident Review Board (CIRB); an independent advisory panel empowered to conduct ‘no-fault’ review of significant cyber incidents across the country. The CIRB can compel organisations to provide information after a major incident, then issue recommendations to help prevent further breaches.

If your firm suffers a serious cyber-attack (the kind that makes the news, or has industry-wide implications), you could receive a notice from the CIRB requiring you to explain what happened and how you responded. Unlike the 72-hour report above, CIRB requests will not be immediate, and they are not automatic for every incident.

The CIRB may select impactful cases for a deep-dive analysis, potentially weeks or months after the fact.

The process is meant to be collaborative (‘no-fault’ suggests a focus on lessons learned, not blame), but your firm must comply with the CIRB’s requests. Non-cooperation may attract penalties.

KEY DATES

The CIRB powers commenced on 30 May 2025.

Baseline recommendations for law firms:

• Know it’s compulsory: brief leadership that a CIRB notice demands full, timely cooperation.

• Preserve evidence: store logs, timelines and decision records for every material incident to satisfy future CIRB queries.

• Appoint a CIRB lead: pre-select the partner or GC who will run any CIRB engagement.

Bonus recommendations:

• CIRB response playbook: create steps for receiving a notice, assembling evidence and drafting a privileged narrative.

• Privilege management: develop redaction and marking protocols before sharing sensitive documents.

• Resource plan: budget staff or consultant time for a multi-week review so client work continues uninterrupted.

Australia’s Cyber Security Act brings new duties that law firms must proactively address. By taking the steps identified above, law firms will not only ensure compliance with the Act but will also meaningfully improve their cyber resilience. In an environment of escalating cyber threats, fulfilling these obligations is more than a tick-the-box exercise; it’s about protecting your clients, your practice and contributing to a safer digital ecosystem for all.

ADDITIONAL

AUTHOR

LILY HANDS ASSOCIATE, NORTON ROSE FULBRIGHT

2025 BLACKBURN LECTURE

Australian Lawyers and Australian Democracy in 2025

The Honourable Justice David Mossop delivered the 38th Annual Sir Richard Blackburn Lecture during Law Week on 20 May 2025. The 2025 Blackburn Lecture addresses the external challenges to Australia's democracy, in particular those arising from the changes in the information landscape.

1 Law R Mueller, Report On The Investigation Into Russian Interference In The 2016 Presidential Election (March 2019).

2 Ibid. at 14-15, 22, 25-27.

In the first Blackburn Lecture in 1986, Sir Richard Blackburn said that the lecture named in his honour must stimulate thought. He said, “A lecture is not a means of imparting information; it is, or should be, a means of stimulating the minds of those who already have enough information to make the lecture worthwhile.”

Today, I wish to stimulate you to think about the increasingly uncertain and potentially hostile information and international relations environment in which Australian democracy exists and what lawyers can do to secure that democracy in the remaining decades of the 21st century.

Let me briefly describe two historical examples that provide the context for today’s information landscape. Each of them should seem like old news in the context of the rapidly changing information environment.

The first example is an example of foreign interference in democratic processes. In 2019, Robert Mueller, a former head of the FBI, published a report on Russian interference in the 2016 US Presidential Election.1 That report covered a wide range of activities undertaken by Russia. For present purposes, I want to focus on the longer-term contamination of the information environment by the Internet Research Agency. That was an organisation funded by Yevgeny Prigozhin, then an ally of the Russian president. The activities of the Internet Research Agency commenced as early as 2014. It involved employees of the Internet Research Agency using fictitious US personas operating social media accounts and group pages designed to attract US audiences.2 These accounts and group pages addressed divisive US political and social issues. They falsely claimed to be controlled by US activists. Having established large US audiences, they then supported the Trump campaign and disparaged candidate Hillary Clinton. They took out paid advertisements on social media and communicated electronically with real-world political activists seeking to coordinate political activities. Mueller reported that multiple Internet Research Agency controlled Facebook groups and Instagram accounts had hundreds of thousands of US participants. Internet Research Agency-controlled Twitter accounts had tens of thousands of followers, including multiple US political figures (such as Donald Trump Jr, Eric Trump, Kellyanne Conway, Brad Parscale and Michael Flynn), who retweeted Internet Research Agency created content.

“A lecture is not a means of imparting information; it is, or should be, a means of stimulating the minds of those who already have enough information to make the lecture worthwhile.” SIR RICHARD BLACKBURN

The second example to which I will draw attention is illustrative of the power of the content of social media algorithms to affect political debate.

Following the end of military rule in Myanmar in 2011, Facebook became an extremely important social platform in that country. In 2016 and 2017, Facebook’s business model was focussed upon maximising user engagement. The algorithm suggesting content to users was adjusted so as to maximise time spent on the service. Each time a video played, it was, in effect, an experiment on user behaviour. Content demonstrating outrage generated more user engagement. In Myanmar, this drive towards user engagement led watchers of videos toward more extreme content, in particular anti-Rohingya content, contributing to social divisions and making anti-Rohingya ethnic cleansing by the army or Buddhist extremists more likely. Contributing to the trend towards extremist content was the fact that 53 percent of Facebook videos in Myanmar at the time were being auto played for users, having been selected by the Facebook algorithm.3

The important point to note about this is that it was the commercial goal of Facebook – to maximise user engagement – which, through the algorithms governing what content was offered to individual users, generated the byproducts of social division and a tendency towards extremism. It was not intentional, but a consequence of the curation function being targeted to particular commercial goals. However, it was very definitely a curation function similar to that of a newspaper editor, but being targeted at an individual user with a detailed history of that user’s past interests and behaviour on the platform.

As I have indicated, both of these events are old news. Since then, the most obvious advance in information technology is the development and widespread distribution of generative AI, that is, artificial intelligence models which generate language or visual content. The capacity of AI systems in the very near future is difficult for nonexperts to appreciate, although experts indicate that the field is rapidly advancing in ways which are likely to have widespread and fundamental effects. There is strong competition between nation states for dominance in the field of AI. There is also strong commercial competition favouring rapid advances. Control over AI models is likely to be concentrated in a small number of companies outside Australia, or in nations other than Australia.

If we combine these three features:

(a) foreign interference illustrated by the Russian influence campaign described in the Mueller report; (b) the power of individualised algorithmic control of content illustrated by Facebook in Myanmar; and (c) the widespread deployment of generative AI, it is possible to recognise the significant potential problem that modern information technology in an increasingly unstable international environment could pose to a small and naïve democracy like Australia. That is particularly so if a sophisticated and well resourced entity or nation state wished to make a concerted effort to influence the outcome of the Australian democratic process. A well-targeted intervention in the political process could change the outcome of an election. Having regard to the resources devoted to other reported espionage and foreign interference activities targeting Australia,6 interference in the political process through information operations would be a rational tool to use.

3 L YN Harari, Nexus: A Brief History of Information Networks from the Stone Age to AI (Random House, 2024) at 199.

4 Examples of the use of AI to generate videos for the purposes of foreign interference are provided in M Perry, ‘Communications Highways and AI: International Responses to Manipulated Realities’ (Conference Paper, International JAG Conference, 24 October 2024) at 9-10.

5 See for example, the scenarios described in D Kokotajlo et al, AI 2027 (AI Futures Project, 2025) (accessible at AI-27.com)

6 Se e, for example, the examples of the activities engaged in by foreign actors in the ASIO Annual Threat Assessment 2024 (intelligence.gov.au/news/ asio-annual-threat-assessment-2024).

Australian democracy is pretty good

Let me tell you a few things that you already know about Australian democracy. We have a spacious, sunny, relaxed, natural resource-rich country. As a result of being a relatively small country, a relatively long way from anywhere, our democracy has largely been sufficiently protected by geography.

The benefits that Australian democracy delivers to its people are wonderful. We have a highly regulated, safe society and high standard of living compared to Australians in the past or to countries elsewhere in the world today. We tend to take all of this for granted. Our children, who have little perspective that it might be, or have been, otherwise, even more so. At the core of this are questions of law and economics. Obviously, in this talk I am focussing on law.

Australians have a lot to be proud of about Australian democracy largely because, in the past, good decisions have been made in constitutional design and legislative choice.

As a result, we have:

(a) compulsory voting;7

(b) a single federal law regulating the conduct of federal elections;8

(c) an independent electoral commission, so that elections are conducted without gerrymandering and/or voter suppression;9

(d) preferential voting;10

(e) a requirement that ministers be members of Parliament;11

(f) a significant degree of public funding for federal elections;12

(g) laws requiring disclosure of donations;13

(h) laws providing some accountability for political statements.14

While definitely having its imperfections, when the functioning of our democracy is compared with others, it can be seen that we are doing pretty well. Obviously, the situation over the last few years in the United States of America would tend to reinforce our smugness about the relative health of our democracy.

7 Co mmonwealth Electoral Act 1918 (Cth) s 101 (enrolment), s 245 (voting).

8 Ibid.

9 Ibid. at ss 6-38.

10 Ibid. at ss 239-240.

11 Co nstitution s 64.

12 Co mmonwealth Electoral Act 1918 (Cth) ss 292G-302.

13 Ibid. at ss 302A-307, 314AH-314AK.

14 Ibid. at ss 321B-321E. See also Laming v Electoral Commissioner of the Australian Electoral Commission [2024] FCAFC 109; 304 FLR 561.

15 A Stone, ‘More Than a Rule Book: Identity and the Australian Constitution’ (2024) 35(2) Public Law Review 127; see also M Gordon, ‘The Integrity of Courts: Political Culture and a Culture of Politics’ 44(3) Melbourne University Law Review 863 at 885-887.

16 Co nstitution s 116.

17 Co nstitution s 80.

18 As to the lack of such a culture, see Gordon n 15 at 870.

One of the distinctive features of Australian democracy, which it is important that I spend a little bit more time on, is that there are very few constitutionalised rights.15 There is a protection against the acquisition of property other than on just terms and, since the early 1990s, the implied freedom of political communication. Other constitutional rights such as freedom of religion16 and the protection of trial by jury17 are, because of the manner in which they have been interpreted, of less practical significance. Because of the limited scope of constitutionalised rights, social progress and the protection of individual rights has had to be driven by democratic means rather than by attempts to enforce or reinterpret constitutional standards. This has positive consequences for the work of the judiciary, reducing the potential for politicisation and avoiding a culture of judicial celebrity.18

If one compares Australia to the United States and asks where and how the debates about contentious issues have been worked out, Australia is notable for having resolved such issues through the democratic and legislative process rather than by the interpretation or reinterpretation of constitutional standards. While many lawyers have bemoaned the lack of constitutionally entrenched rights, this is a strength of Australian democracy rather than a weakness. It means that hard social problems are worked out slowly and messily via the democratic process rather than being pronounced from on high by judges interpreting a constitution. That messy democratic process is not attractive for rights focussed lawyers because it occurs outside the legal system where they are comfortable and subordinates their intellectual skills in constructing legal theories to the less glorious skills involved in the democratic process: persuading ordinary people and ordinary legislators about what is right or wrong. However, it means that, when social questions are worked out, the solutions reached are more likely to be enduring because the whole of the population (or at least a majority) has been brought along with the social change and owns the result. As illustrations of the differing approaches, compare, for example, the Australian and United States approaches to abortion and gun control.

This significant feature of our constitutional arrangements means that, both in a constitutional and cultural sense, the focus must be upon using the underlying democratic processes in order to achieve whatever social conditions we want. We are not dragged down by dead language of the 'founding fathers' but have to work out our own positions on contentious social issues, even if the process is messy and social progress is slow.

This characteristic of our constitution makes it all the more important that we cultivate the conditions in which democracy can work.

The changing environment

The environment in which our happy democracy survives is changing in a number of significant respects. I could give you a chronology of the years since the collapse of the Soviet Union, but it is probably more useful if I describe the changes thematically.

The first theme is the manifestation of environmental constraints. Climate change, first coming to prominence with the first report of the Intergovernmental Panel on Climate Change in 1990,19 will continue to be a destabilising force on populations and governments in a multitude of ways. It operates in a context where the global population, having been around 1.6 billion in 1900, doubled from 4 billion to 8 billion people between 1974 and 2022 and is, manifestly, not environmentally sustainable. As a consequence, even leaving aside the fundamental changes brought about by climate change, environmental systems in Australia, in our region and around the world continue to incrementally break down.

The second theme is the changing behaviour of powerful nation states. The rise of China is obviously significant, particularly since 2012 after the current leader came to power, after which it has adopted a significantly more aggressive posture in international relations.20 In the period since 2015, there have been the challenges to democracy in the United States since the current president became a political candidate. Since 2008, when Russia invaded Georgia, there has been a significant willingness by that country to challenge fundamental aspects of a rulesbased world order, most obviously in relation to Ukraine since the full-scale invasion in 2022.

19 Intergovernmental Panel on Climate Change, Climate Change: The 1990 and 1992 IPCC Assessments (WMO and UNEP, 1992).

20 A Goldstein, 'China's Grand Strategy under Xi Jinping: Reassurance, Reform, and Resistance' (2020) 45(1) International Security 164.

The third theme relates to the information environment which has dramatically changed. Just remember the speed of change. I first used the World Wide Web, what we now think of as the Internet, in 1996. Facebook became available to the public in 2006. Apple’s iPhones were only invented in 2007. TikTok only started in 2016. ChatGPT was only released in 2023. There is now a race to develop stronger and stronger AI models and dramatic changes can be expected in the next few years. As a result of the rise of the internet and social media, the business models for newspapers and other traditional media broke down as advertising revenue shifted online and news came to be delivered through social media apps. The internet has transformed global commerce over the last 30 years. Artificial intelligence will do the same, but will not take as long.

All of these changes have occurred on top of challenges of better-known types such as the 2007–09 Global Financial Crisis, the COVID-19 pandemic and the usual sources of tension between people and nations, all of which put strains on social cohesion.

Gardens need maintenance

I have outlined some of the external facts about the global situation that would suggest that we are in a time of significant instability in global affairs which is unlikely to abate in the foreseeable future.

Those circumstances mean that Australia is likely to be challenged by external forces, most obviously other state actors, but also by larger trends including the mass movement of people in response to pressures arising from population growth, climate change and government instability. Those challenges do not have clear analogues in Australia’s history from which we may learn an appropriate response.

The information environment within Australia will determine to a significant extent whether and to what extent non-Australian actors determine Australia’s response to those challenges. While the fact that Australia is an island and a long way from anywhere has been a significant protective factor in the past, that is no longer as significant as it once was, particularly in the information space where hostile information operations can easily be conducted from anywhere in the world.

That brings me back to my earlier point about the potential for external interference using the combination of algorithmic control of content and generative AI. Consider the following three points.

Firstly, the costs of such influence operations have decreased, and their potential scope expanded as a result of the capacity of generative AI to generate content. You will all have had experience with the incredible capacity of AI to generate very readable content. There is no doubt that it can be used to generate vast quantities of subtly (or unsubtly) skewed information designed to achieve a particular foreign interference goal. Non expert humans will shortly not be able to tell whether that information, whether delivered in writing, as speech or as video, is generated by AI or humans.

Secondly, consider how disinformation can be specifically targeted at the predispositions of individual voters by reaching them through the social media apps that have been accumulating data on them for years. No need to produce a broadsheet newspaper targeted at a general audience on the right or the left. Micro-targeting is now possible. It was a feature of the recent Australian election campaign when deployed by mainstream political parties. The combination of AI and the ability to segment the population using data that they have shared online dramatically reduces the cost of creating plausible disinformation and running a campaign based upon it to influence Australian elections.

Thirdly, the reliance upon social media and portable devices for news has increased dramatically. On average, between 2020 and 2022, an Australian adult spent 63 hours per month or just over two hours per day on the major social media platforms.21 In 2023, 46 percent of 18–24-year-olds nominated social media as their main source of news.22 Half of all adults used social media as a source of news and 25 percent their main source.23 New voters are now digital natives. When considering the 2028 election, just consider that new voters, now 15 years old, were all born after the invention of the iPhone and their brains have been marinating in social media since they were old enough to use a screen. What proportion of them will derive their knowledge of news and current affairs from social media?

The reduction in cost, the capacity to segment the population so as to individually target narrowly defined groups of voters, and a generation reliant upon nontraditional sources of news provides fertile ground for foreign influence operations.

However, deliberate campaigns of disinformation by state actors are only part of the problem. The algorithms that control the streams of information flowing to voters may deliberately or unintentionally channel them towards material that will harm democracy or influence our political process.

On average, between 2020 and 2022, an Australian adult spent 63 hours per month or just over two hours per day on the major social media platforms.

So far as unintentionally harming democracy is concerned, consider the Myanmar example referred to earlier. The algorithm certainly drove up engagement which is what the engineers were instructed to do, but, by enhancing social divisions, had significant political consequences in Myanmar.

More generally, it must be remembered that there is no necessary congruence between the interests of the social media platforms (and hence their algorithm design) or AI designers and the interests of a functioning Australian democracy. The algorithms are performing a curation exercise similar to the editor of a newspaper. Yet, unlike the editors of newspapers, they are performing a bespoke curation exercise for every one of their users and it is not easy to get visibility of each such curation exercise. There is no necessary coincidence between the algorithmic goal of maintaining user engagement and the democratic goal of fact-based, civilised debate about complex policy questions. Yet, on the other hand, the level of engagement is extraordinary. The average figures referred to earlier hide the higher levels of use among younger age groups. Such domination of a society’s collective attention is undoubtedly going to change the shape of its democracy.

21 Australian Competition and Consumer Commission, Digital platforms services inquiry, Interim report 6: Report on social media services (Interim Report, March 2023) at 9.

22 Australian Communications and Media Authority, Communications and media in Australia series: How we access news, Executive summary and key findings (Report, February 2024) at 4.

23 Joint Select Committee on Social Media and Australian Society, Parliament of Australia, Second interim report: digital platforms and the traditional news media (Interim Report, October 2024) at [1.46].

So far as intentionally harming democracy is concerned, one of the concerns in the United States about TikTok was the accumulation of data on individuals that would allow, if the Chinese government exercised control over the platform, very accurately targeted influence operations on the US population. This is a proposition that applies generally in relation to the data collected and the potential to target very specifically defined segments of the population with messages that influence their political behaviour. It is obviously most acute where a person or government who wishes to influence political behaviour has control of, or sufficient influence over, the social media platform in question. In the current environment, specific examples should come to mind. In the near future, the capacity for influence will be increased as a result of the concentration of control over the underlying technology.

In this environment, it cannot be assumed that a wellfunctioning democracy is the natural order of things to which society will default in the absence of any active measures to defend and cultivate democratic processes.

I suggest that it is useful to think about democracy as a garden. What you have in your garden will depend upon choices you make. Those choices will include the basic structure – akin to a constitution – but also upon a myriad of smaller decisions about what to plant where and how to maintain things in the state you want. It would be wrong, however, to assume that the basic structure of the garden is enough to give you the garden you want. Without active maintenance, it will revert, over time, to a default state, but that will not be a neat garden with lawn or fruit trees or other desirable features. It will become overgrown with weeds, chaotic, unstructured and may be dominated by a single pest plant.

My fundamental point is that, just as gardens need active management, so too does democracy.

Nobody has an answer

Now, having painted for you that rather bleak picture, I am afraid there is more. Nobody has a simple answer to the challenges presented by the changing information environment. The problems are very new, widespread, touch on sensitive issues and hence are difficult to grapple with. Nobody has a grand theory as to how things will develop. It is difficult to predict how they will manifest themselves in a manner that will require immediate decisive action. The shouty and divisive nature of debate on social media itself makes problems more difficult to solve.

Further, when thinking about what the solutions might be, it is necessary not to fall into the lawyer’s mindset. When the only tool you have is a hammer, there are strong incentives to characterise every problem as being a nail. When you are a lawyer, there is a temptation to see every problem as one that can be solved by another law or legal theory.

The point of this talk is to suggest that lawyers do have a role in solving these problems, but they are not the solution, only part of a solution.

In pollution regulation, it is common to refer to ‘end of pipe’ solutions, namely, solutions that can be implemented at the end of the pipe after the pollution has been generated. While necessary in many cases, they are not as good as solutions that reduce or eliminate the problem in the first place. In the regulation of democracy, end of pipe solutions, which lawyers are very good at designing and thinking about, have their role to play, but it is also necessary to look further upstream in ways that I will talk about next.

The five topics on which I will say something about lawyers and democracy are:

(a) the judges of the High Court;

(b) lawyers in their daily work;

(c) government lawyers;

(d) lawyers as enlightened leaders; and

(e) democracy education.

The High Court

First, the High Court. When talking about lawyers, it is appropriate to start with the magnificent seven; the very hard workers across the lake who shape our constitution and, in so far as they administer the constitutional freedom of political communication, significantly influence the shape of our democracy. Their lives are inconsistent with spending much time on social media, even though they will know, in a general sense, that it is a thing, and that other people use it.

Their predecessors on the High Court recognised in 1992 a constitutionally protected freedom of political communication.24 That was at a time when there was a happy stability in the information landscape. News came in newspapers and on free-to-air TV. That had been the case for the previous 30 years. Concentration of media ownership was an issue which was addressed in a manageable, if not uncontroversial, way. Change was not on the horizon. The World Wide Web did not exist. I will repeat that. The World Wide Web, that part of the internet which we are all familiar with, did not exist. There was still room for the 19th century view that free speech involved people at speakers’ corner talking to a crowd and, if they said something that was false, the solution was more speech rather than any government regulation of falsity.

The current formulation of the test against which laws are judged by the High Court for compatibility with the implied freedom of political communication involves a structured proportionality test as articulated in McCloy v New South Wales25 and slightly amended in Brown v Tasmania. 26 After considering whether a burden is imposed upon political communication, and whether the law does so for a legitimate purpose consistent with the constitutionally prescribed system of representative and responsible government, the test involves, as its third step, asking whether the law is “reasonably appropriate and adapted” to advance the law’s legitimate object. The “structured proportionality” elaboration of this test involves asking whether it is “suitable”,27 “necessary”28 and “adequate in balance”.29 This is all a very significant judicial elaboration upon the simple words in ss 7, 24 and 128 of the Constitution, but that is a minefield I will not step into today.

My point is that, within the framework of representative and responsible government, there is room for some government control over information in order to ensure that democracy works well and is not distorted by foreign states, foreign actors, or the commercial interests, as reflected in their algorithmic curation, of the influential information providers. As a matter of generality, this statement is unlikely to be controversial. As always, the devil is in the detail. The judgments in LibertyWorks Inc v Commonwealth [2021] HCA 18; 274 CLR 1 provide an example of both propositions. They also provide an example of just how vulnerable constitutional validity is to the varying responses of different judges to the third stage of the test, whether described by reference to the structured proportionality test or otherwise.

24 Nationwide News v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.

25 [2 015] HCA 34; 257 CLR 178 at [2].

26 [2 017] HCA 43; 261 CLR 328 at [104], [155]-[156]; see also Comcare v Banerji [2019] HCA 23; 267 CLR 373 at [29]-[38].

27 In the sense of the law having a rational connection to its purpose.

28 In the sense of there being no obvious and compelling alternative less burdensome on political communication.

29 So that the benefit sought to be achieved is not manifestly outweighed by the adverse effect upon political communication.

In addressing the issue of the implied freedom of political communication in the era of prolific social media algorithmic curation and artificial intelligence, the members of the High Court are unlikely to have, from their own experience, an understanding of the information world lived by the average 15 to 25-year-old, or just how much misinformation is out there on the internet for those who do not actively resist it.

Judges of the High Court are more likely to use the internet like old people (i.e. anyone over 40), appreciating the capacity to digitally subscribe, from the comfort of their couch, to the Washington Post or the New Yorker magazine, or to read the latest curiosity from the Supreme Court of the United States the day after it is delivered. Unlike new voters in the 2028 federal election, they are not spending four hours in bed each night watching whatever the algorithms at TikTok, YouTube, Instagram, Snapchat or X send to their brains. Their view of the information landscape may well be very different from the reality for most Australians. This may affect their approach to the perception of the challenges faced by democracy from the new information age and, hence, to their assessment of the boundaries of the implied freedom when assessing the validity of legislation.

Treating the implied freedom as a significant constraint on legislative choice runs the risk of taking an approach to its operation which precludes the capacity of the Parliament to address the challenges facing Australian democracy. The implied freedom should not prevent gardening so as to shape and strengthen that democracy against novel challenges.

Like all judges, the judges of the High Court may be educated about context by evidence and submissions, but no one should assume that this is not necessary. That may not be easy because of the limitations upon their own personal experience of the emerging information landscape.

In short, the judges of the High Court should give significant weight to the need for gardening, in the sense that I have explained earlier, and lawyers appearing there should be conscious of the need to educate them about the need for gardening.

Lawyers

Next, I turn to lawyers generally. Obviously, this is a broad class of people who do lots of different types of legal work. Many will not spend much time thinking about the state of democracy as distinct from their next court deadline, their billable hours target or their next difficult client.

Let me reassure you. Doing your job in a manner that makes the legal system work is a good thing and a small but important contribution to Australian democracy. There are undoubtedly problems within the legal system, most obviously in terms of access to justice when that involves engaging the services of very expensive professionals. However, the legal system as a whole still reflects the goals of the fair and civilised administration of justice. While, inevitably, there is built into the legal system human fallibility and power imbalances that reflect those that exist in society more broadly, rationality and substantive fairness are still important, the more so as you get closer within the legal system to a court.

Making the justice system work is important. Judicial institutions can only remain effective if the culture of respect for judicial decisions is maintained.30 Making justice deliver, and hence reinforcing confidence in the operation of the legal system in practice, is therefore important. Just as competence and impartiality on the part of judges are essential for the maintenance of judicial legitimacy,31 so too is competence and respect for institutions on the part of lawyers.

Maintaining the culture of respect for judicial institutions contributes to maintaining societal acceptance of government institutions more generally. One of the features of social media is the potential for it to undermine institutions through misinformation and the tendency to encourage those at the extremes. Working competently and respectfully within the judicial system helps to protect against that undermining.

30 Go rdon n 15 at 881.

Taking care that, under your watch, the legal system continues to function is important. Chief Justice Gageler has described that, as a barrister, he acquired a 1200-yearold Tang dynasty porcelain camel.32 It is about as old as the common law. He described himself as merely having custody of that object for a short period of time, and having the ambition to hand it over to someone who will care for it in the future. His ambition was the same with the common law: to be responsible for it for a short time and hand it over in good order to his successor. So too with Australian lawyers. If they can maintain a system of fair and rational justice, consistent with the rule of law, they will be helping Chief Justice Gageler with his porcelain camel. That is a contribution to Australian democracy.

Government lawyers

That brings me to government lawyers, whose role in democracy is somewhat more acute. This is a topic I have addressed elsewhere.33 The Robodebt Royal Commission subsequently addressed some particular circumstances which involved government lawyers.

The advice on the lawfulness of the conduct of the executive government given by government lawyers is central to democracy. Any erosion of the quality and integrity of the advice given by government lawyers would be a significant step away from a democratic system based on the rule of law. The reason that government lawyers remain so important is that a rhetorical commitment to the rule of law remains, to date, a central tenet of the offerings of all Australian political parties. In circumstances where a government decision is unlikely to be readily tested in court – and there are many areas where that is the case – the opinions of government lawyers determine whether the government can say that it is complying with the law or not. Those opinions are, therefore, very influential. The integrity of government lawyers and their individual and

institutional capacity to say “no” is very important to the democratic system.

Finally on this point, I should mention the role of Law Societies, in particular, the Law Society of the ACT, in formally defining what professional integrity requires in the case of government lawyers. I note that, although the Solicitors Conduct Rules address the obligations of lawyers in private practice and government and nongovernment lawyers when in court, they fail in any practically actionable way to address the conduct of government lawyers providing advice to government outside the context of court proceedings.

There is room for Law Societies to provide more guidance in this area, and that would be a useful contribution to Australian democracy.

Enlightened leaders

I have spoken about lawyers doing their job in a way that maintains public confidence in the legal system. I have spoken of the importance of government lawyers. Now I want to talk about the role of lawyers as enlightened leaders.

Lawyers as a class are well educated, well informed and privileged members of society. To a greater extent than other well educated, well informed and privileged members of society, they have an understanding of our system of government, the relationship between different levels of government and how executive government actually works. As a group they have a greater potential than, for example, dentists or accountants, to influence public debate about the shape of our democracy. They are able to influence that debate in a manner that makes the polity more or less able to address the changes in the information landscape, in particular, more or less able to address misinformation, disinformation and foreign influence.

32 S Gageler and D Collins, ‘In Conversation with Stephen Gageler, Chief Justice of the High Court of Australia’ [2024] (March) Judicature International 1 at 4. See to similar effect, but without the camel, Gordon, n 15 at 864.

33 D Mossop, ‘Ethical obligations of government lawyers’ (2023) 268 Ethos 40.

For the last 800 years or so, the English legal system and its successors in Australia have been defining the powers of the state as against the individual. That remains a neverending issue. Much of the legal profession is involved in criminal law, which involves, on a daily basis, the competition between the powers of the state and the rights of individuals. Understandably, their view of democracy is affected by their work and the constant competition between state power and the interests of individuals.

Because we have been so happily isolated by geography from external threats during the history of the nation, there has been little to change the focus of the legal profession from defence of the individual against the state to the need to make our democracy more robust to face the challenges of the 21st century. My hope is that the legal profession as a whole can turn its attention to what is needed to make Australian democracy stronger. That does not mean a capitulation to state power, but rather paying more attention to what a small democratic nation needs to do to protect itself in an uncertain and potentially hostile global and informational environment.

I want to make particular mention of one group of lawyers doing good work: those at the Centre for Public Integrity, an independent private body whose focus has been on issues such as the National Anti-Corruption Commission. It has provided members of its board as commentators to the media to help educate the public on issues relevant to integrity in government. It has proposed both end of pipe solutions, such as the National Anti-Corruption Commission, as well as upstream measures to enhance government accountability.34 This type of advocacy and education is important because it contributes to trust in government institutions, something which is essential for democracy to work.

Democracy education

Finally, and probably most importantly, is something which does not necessarily involve lawyers directly, except as persons who might use their influence to achieve it: democracy education.

Since 1973, the voting age has been 18 years.35 The voters in the 2028 election are now 15 years old and likely to be in Year 10 at the moment. That means the most critical point at which there needs to be education for a functioning democracy, at least for new voters, is in the final years of high school, Years 11 and 12.

Similarly, it is in these two years that the brains of Australian teenagers are marinating in whatever the algorithms of YouTube, Instagram, Facebook, Snapchat, TikTok and X deliver to them. For hours at a time each day. Their news about politics in Australia and events around the world is selected for them and delivered to them by those same algorithms, much via influential social media personalities rather than traditional media. Any control on misinformation or disinformation is outsourced to the platforms that provide the stream of content. Each of these Australian youths will be being delivered a different stream of content based upon the algorithm’s knowledge of their past consumption history. Each will be able to be individually targeted in a manner that plays upon that knowledge to influence their political attitudes and their vote. Whether it is TikTok or one of the US based applications, Australia has, at the moment, minimal controls over what those algorithms do or the results that they produce.

So far as education of students about external threats to democracy, that seems to stop at the fourth line of the national anthem: “our land is girt by sea”. The fact that we are an island and a long way from anywhere is no longer sufficient to ensure our democracy continues to function effectively. Look at the national curriculum and you will find that democracy education occurs in Years 7 to 10. While this is laudable, it does not make a lot of sense to only teach students about democracy when they are at an age when they will be unaware of, and uninterested in, politics, let alone the need to protect Australian democracy from internal and external threats. Such limited attention is inadequate to make children aware of the information landscape in which they exist, including the significant potential for misinformation and disinformation.

Upcoming voters in Years 11 and 12 should be educated about the basic choices that they need to make. What is the difference between left wing and right wing? How much of the federal budget is spent on different things? What levels of government are responsible for what services? Do governments do more than what they say in their list of promises at elections? Is choosing who you vote for more significant than choosing your new pair of running shoes? What is executive power and how does it work? How does disinformation work? How do algorithms used by social media platforms work?

None of these things are likely to make a dramatic difference in the short term. Raising the knowledge level of the population about democracy is slow and difficult. An active program might provide some degree of inoculation against the forces that actively or inadvertently tend towards a decline in the quality of democratic processes. However, if society does not make an attempt to do so then the field is being left to those, whether actively malign or not, who have no interest in maintaining Australian democracy. This leaves Australia more vulnerable to external influence.

I admit that, while this is probably the most important solution, it is not an end of pipe solution. It is the much harder, longer-term process which involves more than just lawyers or elites more generally. Having said that, as I have pointed out earlier, enlightened leadership is important and a recognition by lawyers that democratic gardening is important is a good first step.

Conclusion

In the absence of any uplifting conclusion, I will summarise what I have said today:

(a) The global landscape has become more threatening for Australia than in the last thirty years.

(b) The information landscape has become more volatile due to the algorithmic curation of social media and the decline of traditional sources of news.

(c) There is significant potential for foreign interference or the decline in democratic processes through algorithmic control of news by decision-makers outside Australia, and the generation of content using AI.

(d) Australian lawyers need to be aware of these changes to the environment in which our democracy exists. Lawyers need to recognise the need for democratic gardening, namely the taking of active measures by Parliament to preserve and shape the democracy. Once the need for democratic gardening is recognised, there are a variety of ways in which lawyers can contribute to the maintenance of our democratic system.

My final point: it may well be that it is only when there is some shock to the system – equivalent to the Russian campaign of interference in the lead up to the 2016 election in the United States – that these issues receive greater prominence. Hopefully, in accordance with Justice Blackburn’s mandate, I have stimulated you to consider them before that occurs.

Raising the standards

How the recent changes to mediation standards and regulations are relevant to lawyers in private practice and government

In the last 50 years in Australia, mediation has become an essential component of the Australian family law system and continues to play an increasingly important role in the broader justice landscape. As the legal profession increasingly embraces alternative dispute resolution such as mediation, the regulations and accreditation standards of mediators have faced significant scrutiny. In order to function efficiently within the existing justice system and be supported by public trust, mediation must be governed by a framework of standards. These standards need to support quality, consistency, and consumer protection. For lawyers working in private practice and in government, such standards are particularly pertinent. Whether providing mediation services directly or referring clients to them, legal professionals are engaging in a system that is becoming increasingly regulated and standardised.

regulatory mechanism to bring greater consistency and accountability to the booming mediation sector.1

From 1 July 2025, the Australian Mediator and Dispute Resolution Accreditation Standards (AMDRAS) have replaced NMAS following a 12-month transition period. This change is not merely at a superficial level; rather, it marks a significant attempt to “advance and enhance the integrity, consistency of mediation and dispute resolution services and training in Australia for the public interest.”2

New standards for mediators have been introduced by the MSB effective from 1 July 2025. Why do we have them? And why is AMDRAS committed to aligning community mediators and lawyers who are working as mediators? 1

In 2008, the Mediator Standards Board (MSB) was established by the Commonwealth Government to support and promote the standards of mediators and mediation services in Australia. The MSB introduced the National Mediator Accreditation System (NMAS) as a

This article will explore the value of having mediation standards, the rationale for updating them, and will seek to explain how the new AMDRAS framework has been designed to harmonise community and legal mediation. The article will have a particular focus on the relevance of these changes for legal professionals in private practice and government positions.

DEBRA PARKER

PARKER COLES CURTIS

The transition from NMAS to AMDRAS

The MSB developed NMAS in response to the growing mediation industry and by 2021, more than 3,700 mediators were accredited under NMAS and 39 Registered Mediator Bodies (RMAB) emerged.3 NMAS offered one level of accreditation called ‘National Accreditation’ which recognised the successful completion of NMAS training, assessment and continuing professional development (CPD). However, the limitations of NMAS became increasingly apparent over time.

In 2019, the MSB engaged Resolution Resources as an independent contractor to conduct a review of NMAS. A key concern highlighted was that many accredited and non-accredited practitioners regularly deviated from the facilitative mediation model encouraged through NMAS. The report identified several reasons why mediators continued to step outside the bounds of the recommended facilitative mediation model. Lawyer mediators were often found to be engaging in advisory, evaluative and even determinative roles, which blurred the line between mediation and professional legal advice. The report also identified a diversity in the practice styles in those administering alternative dispute resolution services which undermined the consistency of mediation processes within our judicial system.4

In response to this review, the MSB undertook a 12 to 18-month revision process to examine the report and to update and strengthen the mediation standards framework within Australia. This led to the development of AMDRAS which was designed to address some of the criticisms of NMAS and to modernise mediation standards to reflect the current Australian legal climate.

The changes under AMDRAS

The transition from NMAS to AMDRAS from 1 July 2025 has introduced several practical and structural elements aimed at enhancing mediator competency and accountability:

1. Mandatory practice hours for an accredited mediator will increase from 20 to 40 hours per annum. The training hours will increase from 38 to 45 hours, and simulated assessments will be more extensive. A written assessment will be introduced.5 This increase in training and assessment will allow for more thorough evaluation of a candidate’s understanding of mediation practice and the processes, theory and ethical dilemmas that may arise during mediation and are ultimately aimed at providing better service and an improved experience for clients.

2. Single level accreditation has been changed to provide for a new tiered accreditation scheme which now recognises three levels of practitioners: Accredited Mediator, Advanced Mediator and Leading Mediator.6 The tiered system is designed to encourage increased public trust and understanding of a mediator’s professional experience and qualifications, whilst also providing clear career development pathways for mediation practitioners.

3. Importantly, whilst AMDRAS retains the facilitative model used by NMAS as its foundational framework model for training and assessment, AMDRAS expands upon the existing regulations governing mediation and accreditation in Australia to adapt to the current legal climate.7

3 Me diator Standards Board, ‘The MSB Collection, Is your mediator accredited? (Web Page) msb.org.au/publications/article/your-mediator-accredited#:~:text=In%20 Australia%2C%20there%20are%20now%20more%20than%203700,registered%20under%20the%20National%20Mediator%20Accreditation%20System%20 %28NMAS%29.

4 Me diator Standards Board, ‘The MSB Collection, Australia’s Mediator Accreditation System Set to Evolve in 2024 (Web Page) msb.org.au/publications/article/ australias-mediator-accreditation-system-set-evolve-2024.

5 Re solution Institute, Australian Mediator and Dispute Resolution Accreditation Standards (AMDRAS) (Web Page) resolution.institute/Web/Web/Members/ Accreditations/Australia/AMDRAS.aspx.

6 Au stralian Disputes Centre, Australia starts transition from NMAS to AMDRAS (Web Page) disputescentre.com.au/australia-starts-transition-from-nmas-toamdras/#:~:text=AMDRAS%20includes%20a%20new%20tiered%20accreditation%20structure%20and,of%20their%20accreditation%20%E2%80%93%20to%20 transition%20to%20AMDRAS.

7 Ms Emma Swart, Chair of AIFLAM, Barrister and Mediator – “They decided to continue to train and assess on the facilitative model despite there being a divide in practice between party direct community models and lawyer assisted models associated with courts/litigation.”

4. The MSB asserts that the transition to AMDRAS will have an overall positive impact on the legal justice system and assist legal practitioners and members of the public who utilise mediation services. The increased training and specialised qualifications offered provides more ‘clarity and protections’8 for clients and mediators alike. AMDRAS introduces more comprehensive guidance on mediator ‘training, continuing professional development, complaints handling, and ethics’9 in direct response to calls from the report.

5. The complaints mechanism has not changed following the introduction of AMDRAS. Complaints are made and handled by either the service through which the practitioner works or to whom the practitioner is accredited such as the Family Relationship Centre, the Australian Institute of Family Law Arbitrators and Mediators (AIFLAM), the Resolution Institute, or the Australian Mediation Association.

The importance and impact of standards

The expansion and revision of Australia’s mediation standards are not simply bureaucratic reform, rather they are a direct response to the increased reliance on mediation as a primary method of dispute resolution. The shift away from traditional courtroom litigation has increased public demand for accessible, affordable, and accountable mediation services. The rise of online legal services and hybrid mediation, particularly following the COVID-19 pandemic, has led to new questions about practitioner competence, credibility, and consistency. Similarly the extraordinarily quick uptake of artificial intelligence has been rapidly transforming the legal landscape, including in the provision of mediation services. Mediators must adapt to these changes, and the regulatory framework must keep pace.

8 Mediator Standards Board, ‘The MSB Collection, Australia’s Mediator Accreditation System Set to Evolve in 2024 (Web Page) msb.org.au/publications/ article/australias-mediator-accreditation-system-set-evolve-2024

9 Me diator Standards Board, ‘The MSB Collection, Australia’s Mediator Accreditation System Set to Evolve in 2024 (Web Page) msb.org.au/publications/ article/australias-mediator-accreditation-system-set-evolve-2024.

10 Me diator Standards Board, ‘The MSB Collection’ Will COVID-19 see mediation-focused professionals opt in to accreditation? (Web Page) msb.org.au/publications/article/ will-covid-19-see-mediation-focused-professionals-opt-accreditation.

It is submitted that accreditation systems like AMDRAS offer ethical and procedural foundations that allow practitioners to adapt effectively to such changes. By developing a national benchmark for training, assessment, CPD and conduct, our clients and instructing solicitors will be able to hold mediators more accountable. Mediation standards provide a nationally endorsed framework for defining the practice, and what it means to be a credible mediator. It is increasingly apparent that robust standards play an essential role in legitimising mediation as a professional industry. This is particularly true for lawyers, who must navigate dual obligations to both their legal duties and to mediation-specific ethical guidelines.

Harmonising community and legal mediation

One of the most important goals of AMDRAS is to bridge the gap that exists between community mediators and lawyers who also act as mediators. Community mediators often enter the profession with varied training backgrounds, whereas lawyers who mediate have formal legal training. This diversity of training backgrounds can create confusion amongst the public about what constitutes a mediator and what to expect from the mediation process.

AMDRAS offers an opportunity for greater coherence in addressing this gap. By applying a system of uniform standards across all accredited mediators, AMDRAS seeks to unify community and lawyer mediators under nationwide ethical, training and competence expectations. This system also promotes greater access to justice by enhancing the accessibility and quality of mediation services. Alignment through standards creates a benchmark for ethics, training, and competence in the field of mediation which ultimately leads to greater access to just outcomes.

AMDRAS will play a valuable role in facilitating the integration of both roles through standardised training and accreditation.

For lawyers, AMDRAS presents an opportunity to integrate legal knowledge with mediation skills. For government agencies, the new system ensures that mediators meet national standards which enhances both quality and public confidence.

It is also important to acknowledge the value of diverse practitioner backgrounds. Mediation processes are enriched by the varied experiences of community mediators, whilst also leveraging the legal expertise of lawyers who work within the system. By integrating both types of mediators as well as providing uniform standards, AMDRAS presents mediation as a unified professional national discipline.

Critisicms and challenges

Despite the positive sentiment towards updating Australia’s mediation standards, the introduction of AMDRAS has not been devoid of criticism. In a report released in December 2023, the Law Council of Australia expressed several concerns about the transition.

The Law Council of Australia did not support the name change from ‘NMAS’ to ‘AMDRAS,’ noting the national recognisability of the original name in both the private and public sector as well as the courts. The Council also criticised the inadequate recognition of lawyers acting as mediators as distinct from mediators coming from different training backgrounds. The Council also shared that it had received strong feedback around the burdensome nature of increased training and CPD hours on lawyers who are already required to complete annual CPD requirements.11

Whilst these critiques warrant consideration, it is important to remember that AMDRAS is a new accreditation framework. Its long-term success will depend on the willingness of the Mediator Standards Board to engage with feedback and to adjust the system accordingly.

By integrating both types of mediators as well as providing uniform standards, AMDRAS presents mediation as a unified professional national discipline.

11 Law Council of Australia, Draft Australian Mediator and Dispute Resolution System Standards, (online at 22 December 2023).

12

Implications for the legal profession

The introduction and ongoing growth of mediation has significantly reshaped the Australian legal landscape, prompting a re-evaluation of traditional roles within the profession. The establishment of mediation-specific standards, such as AMDRAS, underscores a critical distinction between mediation and traditional legal advocacy. This distinction reinforces the need for legal practitioners who wish to act as mediators to undertake AMDRAS-compliant training and ensure that they are properly equipped with the requisite skills and ethical frameworks unique for mediation. For lawyers, the adoption of such standards not only enhances professional competency but also creates opportunities to broaden their practice into alternative dispute resolution services. It would be prudent for lawyers who are practising as mediators to ensure that their professional indemnity insurer and their accrediting body are made fully aware of their AMDRAS accreditation standard and their training and of the fact that they are practising as mediators. They should also review the level of their Professional Indemnity Insurance cover.

The transition from lawyer to an impartial mediator can present unique challenges for legal professionals, particularly in maintaining neutrality and managing potential conflicts of interest. AMDRAS offers guidance in navigating these complexities and assists in safeguarding the integrity of the mediation process. The recognition of standards applicable across both community and legally trained mediators ensures a consistent and high-quality approach to dispute resolution. As demand for mediation services grows, systems like AMDRAS provide a framework through which lawyers can contribute to the evolution of dispute resolution in Australia and as a result provide better service to clients.

Looking into the future

Similar to any regulatory shift, the effectiveness of the new AMDRAS will depend on its implementation and the response to future feedback. There is currently little material available that provides practical guidance to mediators who face a diverse range of ethical issues, particularly for those who are legal practitioners. Whilst standards such as these will never completely eliminate ethical dilemmas or complexities that arise in mediation, they provide an essential system for more consistent and credible practice.12

The introduction of AMDRAS is a clear step by the MSB to address the call for clearer standards for mediators and to raise the benchmark across Australia. For lawyers in both private practice and government, AMDRAS provides an opportunity to engage more meaningfully and ethically in a rapidly evolving dispute resolution space.

Debra Parker has been practicing family law for over 30 years. She is a leading solicitor and mediator in the ACT for over three decades. Debra is a Director and Founding Partner of Parker Coles Curtis, a Canberrabased law practice that specialises in family law and divorce. Debra is a passionate advocate for the effectiveness of mediation in helping individuals resolve matters out of court and this ongoing passion drives her to pursue ongoing learning. Additionally, Debra is the only family lawyer in the ACT with a double Specialist Accreditation in both Family Law and in Dispute Resolution from the Law Society of NSW and she has received various awards for her work in this space. Debra is also accredited as a National Mediator with the Australian Institute of Family Law Arbitrators and Mediators and has been elected to be their ACT national board representative. She was also a recipient of an ACT Law Society Service Award in 2025, in recognition of her valuable contributions to leadership and excellence in family law and dispute resolution.

Debra Parker acknowledges the significant assistance in researching provided by Ms Olivia Greentree, Legal Administrative Assistant at Parker Coles Curtis and legal student at the Australian National University.

Navigating your AML obligations

Supporting members to navigate changes to Australia’s anti-money-laundering and counterterrorism legislation

NAVIGATING REFORM

What the AML/CTF changes mean for legal practitioners

Australia’s anti-money laundering and counter-terrorism financing (AML/CTF) regime is undergoing the most significant overhaul in its history—and legal practitioners will soon be drawn squarely into its scope. To assist members in navigating this complex transition, the ACT Law Society has relaunched its dedicated AML/CTF resource page, centralising guidance and resources to support firms as they prepare for compliance.

Resources to support you

Preparing for compliance doesn’t have to be daunting. The Society’s AML/CTF Hub includes a regularly updated suite of resources designed with busy practitioners in mind:

• Frequently Asked Questions—covering everything from basic definitions to real-world applications.

• Background information on the legislation including the scope of the upcoming ‘Tranche 2’ reforms.

• Training resources and webinars

• Guidance on preparing an AML/CTF program for your workplace.

UPCOMING CPD SESSION

In our upcoming Essentials: Spring CPD series, Director of ACT AML Tim Bourke will be presenting Navigating AML obligations: A practical guide for legal professionals.

This session offers a practical overview of what’s changing, what a compliant AML/CTF program looks like, and how firms can start preparing now.

Topics include:

• Understanding what the Tranche 2 AML/CTF reforms are and how they will impact law firms

• Likely key obligations for lawyers under the AML framework

• What an AML/CTF program involves

• Risks of non-compliance

• Practical steps for readiness

• Q&A session.

REGISTER HERE.

We will continue to deliver education and resources to support our members. Please reach out to memberconnect@actlawsociety.asn.au with any feedback on additional resources or support you may need.

The ACT Government recently undertook a review of the ACT Seniors Card program which highlighted the need for legal options for seniors in living in the ACT, including advice on estate planning and entry into residential and aged care.

By participating in the ACT Seniors Card program and offering seniors a discount of not less than 5% on your professional services, we will promote your practice to our 80,000 ACT Seniors Card holders.

Please sign up by visiting the ACT Seniors Card website and completing the online business application form, or alternatively email ACT Seniors Card at seniorscard@cotaact.org.au

Our business partners receive in kind:-

• A free online listing on the ACT Seniors Card website which sets out your discount and speciality.

• Mention in our quarterly e-newsletter (reach 50,000 subscribers with a click rate of 60%)

• Notice of COTA ACT events including the Seniors and Ageing Expo, Midweek Matters, financial and legal workshops held for our members and other events held by COTA ACT and supported by the ACT Seniors Card program.

Policy update Legal Profession (Solicitors) Conduct Rules

2025 AMENDMENTS

One of the most notable amendments is the introduction of a new Rule 11A, which sets out obligations for solicitors providing short-term legal assistance services.

The ACT Law Society is finalising a series of amendments to the Legal Profession (Solicitors) Conduct Rules 2015 (Solicitors’ Conduct Rules 2015), marking a significant step in modernising the regulatory framework for legal practitioners in the ACT. While the changes were approved by Council in September 2022, the formal consultation process was delayed to allow time for the Law Council of Australia (LCA) to complete its review of Rule 38 of the Australian Solicitors’ Conduct Rules (ASCR). Although that review is still ongoing, the Society has committed to revisiting the ACT Rules within the next 6 to 12 months to ensure continued alignment with national standards. These amendments are designed to improve clarity, reduce cross-jurisdictional complexity, and ensure the ACT’s professional conduct framework remains responsive to the realities of modern legal practice. They also address gaps identified during the LCA’s 2018–2020 review of the ASCR, particularly in areas where technological and procedural developments have outpaced the existing rules.

Key Changes

One of the most notable amendments is the introduction of a new Rule 11A, which sets out obligations for solicitors providing short-term legal assistance services. This rule is particularly relevant for Legal Aid ACT and other highvolume service providers, as it allows for more flexible conflict screening in situations where strict compliance might otherwise prevent clients from receiving timely legal help. The rule has been welcomed as a practical step toward improving access to justice in the ACT.

Other amendments include updates to terminology and formatting to bring the ACT Rules into closer alignment with the ASCR, as well as clarifications around consent—confirming that it need not always be in writing—and the rules governing improper influence over third parties. The amendments also harmonise certain obligations with the Legal Profession (Barristers) Rules 2021 (Barristers’ Conduct Rules) and update provisions for legal and nonlegal services operating from the same premises.

To strengthen workplace safety, several key definitions have also been updated, including those for harassment, sexual harassment, workplace bullying, and the office. These revisions align with current anti-discrimination and workplace laws, and reflect the evolving nature of legal practice—particularly the shift beyond traditional office environments. By modernising these definitions, the Rules aim to foster respectful, inclusive, and legally compliant workplaces across the profession.

Key Feedback

Over the consultation period, the Society received four submissions, each offering valuable insights. One respondent expressed strong support for all proposed changes, particularly Rule 11A.1, noting its potential to enhance service delivery without compromising ethical standards. Another submission called for the adoption of gender-neutral language throughout the Rules, reflecting a broader push for inclusivity and modern drafting practices.

Several technical and drafting improvements were also suggested. These included clarifying the application of the Rules where solicitors act contrary to client instructions, refining the language around consent, and correcting minor inconsistencies in phrasing. There was also a call to expand the definition of ‘Office’ to include roles or positions within organisations, ensuring the Rules remain relevant across diverse practice settings.

Next Steps

The Society thanks all members who provided feedback during the consultation period. We are pleased to note that the feedback was overwhelmingly positive and supportive of the proposed amendments in the consultation draft.

In accordance with section 583(1)(c) of the Legal Profession Act 2006, the Society is required to undertake a consultation process prior to making any changes to the Rules. Accordingly, the feedback received will be considered for inclusion in the next consultation draft, which is expected to be circulated within the next 6–12 months as part of the Society’s ongoing review of the Rules.

To strengthen workplace safety, several key definitions have also been updated, including those for harassment, sexual harassment, workplace bullying, and the office.

Once finalised, the amended Rules will be signed by the President and submitted to the Justice and Community Safety Directorate (JACS), with formal notification anticipated in 2026. A range of resources and supports will be developed to support the profession during this transition.

These reforms reflect the Society’s continued commitment to upholding high professional standards while ensuring the regulatory framework remains practical, inclusive, and aligned with national developments.

JOHN WILSON MANAGING LEGAL DIRECTOR, BAL LAWYERS

KIERAN PENDER HON. LECTURER ANU LAW & CONSULTANT, BAL LAWYERS

Legal Risks of excessive hours at work

Earlier this year, a law firm in Melbourne was ordered to pay over $50,000 for a range of exploitative labour practices relating to the excess work hours required of a junior lawyer. While the public furore around the case was noteworthy, the issues raised by it were not exactly novel in the legal profession.

It feels timely, therefore, to consider the law regulating work hours in Australia. This article will set out the context, with a focus on the legal profession, before setting out the legislative framework. It will then consider two recent instructive cases, including the law firm enforcement decision, before offering some concluding remarks.

Context

In Australia and overseas, the legal industry is known for its high-pressure environment and a long history of a culture of significant working hours. For some time, that culture has been scrutinised for its perpetuation of unhealthy workplace cultures. Across 2018 and 2019, workplace regulators in NSW and Victoria launched several investigations into top tier law firms, in part sparked by excessive work hours performed during the banking royal commission. These investigations brought scrutiny to a culture of excessive workloads within the legal profession and the toll it takes on employee wellbeing.1

At the time, the billable hours system came under fire prompting some firms to explore alternative arrangements. In Victoria, the government established a new legal procurement policy requiring firms participating in the government legal services panel to disclose safety breaches and submit their strategies pertaining to work life balance for lawyers.2

Recent research by the Australian National University and the University of Melbourne has found that 39 percent of participants believed working within the legal sector had a ‘negative’ or ‘extremely negative’ impact on their wellbeing. These participants stated that ‘significant challenges to wellbeing are created by the ‘business model’ in some parts of the legal profession, particularly in respect of designed or implicitly sanctioned structures, norms and behaviours that support excessive workloads and unreasonable working hours’.

3 The research suggested that these workplace issues extend well beyond commercial law firms and pervade ‘government, legal aid and corporate in house settings’.4

Another recent research project, the Law Forward Legal Industry Satisfaction Survey, found that nearly 70 percent of lawyers experience burnout and 36 percent of lawyers reported to have worked more than 45 hours a week.5 Somewhat ironically, this data came at a time of increasinglyrobust workplace protections in relation to over work – to which we will now turn.

1 Naaman Zhou, ‘Young lawyers push back against culture of overwork in top law firms,’ Guardian Australia (online, 3 December 2018) theguardian.com/ law/2018/dec/03/young-lawyers-push-back-againstculture-of-overwork-in-top-law-firms.

2 David Marin-Guzman and Hannah Wootton, ‘Procurement rules target law firms that overwork staff,’ Guardian Australia (online, 5 February 2020) afr.com/work-and-careers/workplace/ procurement-rules-target-law-firms-that-overworkstaff-20200204-p53xkf.

3 Vivien Holmes, Julian Webb, Stephen Tang, Susan Ainsworth, Tony Foley, Lawyer Wellbeing, Workplace Experiences and Ethics: A Research Report (Victorian Legal Services Board + Commissioner, the Law Society of New South Wales, and the Legal Practice Board of Western Australia, 2025).

4 Vivien Holmes, Julian Webb, Susan Ainsworth, Tony Foley, “The pay is not worth the stress”: research finds 10% of lawyers plan to quit within a year’, The Conversation (online, 17 August 2025) theconversation.com/ the-pay-is-not-worth-the-stress-research-finds-10-oflawyers-plan-to-quit-within-a-year-254699.

5 College of Law, ‘Law Forward Legal Industry Satisfaction Survey’ (2025) collaw.edu. au/campaigns/college-of-law/2024/ law-forward-2024-satisfaction-survey.

Legislative framework

Section 62 of the Fair Work Act establishes that an employer must not request nor require an employee to work more than 38 hours in a week. Critically, though, there is a caveat: unless the additional hours are reasonable.

What is reasonable? In determining that, section 62(3) of the Fair Work Act outlines a range of factors to be considered. These include:

a. any risk to employee health and safety from working the additional hours;

b. the employee’s personal circumstances, including family responsibilities;

c. the needs of the workplace or enterprise in which the employee is employed;

d. whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;

e. any notice given by the employer of any request or requirement to work the additional hours;

f. any notice given by the employee of his or her intention to refuse to work the additional hours;

g. the usual patterns of work in the industry, or the part of an industry, in which the employee works;

h. the nature of the employee’s role, and the employee’s level of responsibility;

i. whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;

j. any other relevant matter.

Accordingly, asking an employee to work 42 hours a week during a busy period may not be unreasonable. Asking an employee to work 100 hours a week, every week, for months on end, probably would be. As always, the uncertainty is in the middle of that spectrum from reasonable to unreasonable additional hours.

…asking an employee to work 42 hours a week during a busy period may not be unreasonable. Asking an employee to work 100 hours a week, every week, for months on end, probably would be.

As maximum weekly hours form part of the National Employment Standards, this protection applies to all employees in the national workplace system in Australia, and cannot be excluded by contract, award, or enterprise agreement.

In addition to obligations under the Fair Work Act, work health and safety laws may be relevant to overwork. The Work Health and Safety Amendment (Managing Psychosocial Risk and Other Measures) Regulation 2022 requires employers to proactively identify and control psychosocial risks that arise in the workplace. These regulations impose a positive duty to eliminate psychosocial hazards in the workplace, so far as is reasonably practicable.

Similarly, section 55D of the ACT Work Health and Safety Regulation 2011 at section 55D establishes that a person conducting a business or undertaking must implement control measures to;

a. Eliminate psychosocial risk so far as is reasonably practicable and

b. If it is not reasonably practicable to eliminate psychosocial risks – minimise the risks so far as is reasonably practicable.

Although case law on these legislative reforms remains limited, it is likely that excessive work hours and excessive job demands will present as a hazard that could compromise the psychosocial wellbeing of an employee. A failure to appropriately manage this hazard could lead to investigation and enforcement proceedings by the relevant regulators.

Within the legal profession, there may also be applicable industrial instruments. Lawyers employed by community legal centres will be covered by the Social, Community, Home Care and Disability Services Industry Award (unless excluded by any applicable enterprise agreement). Law clerks, law graduates and clerical and administrative employees will be covered by the Legal Services Award.

Under both awards, the ordinary hours of work are to average 38 hours per week; directions to work unreasonable additional hours might therefore lead to a dispute under the award, in addition to questions of compliance with s 62 of the Fair Work Act.

Notably, the Legal Services Award contains annualised salary provisions, which requires employers to advise the employee in writing and keep a record of the outer limit of ordinary hours that would normally attract a penalty and the outer limit of overtime hours which the employee may be required to work where an annualised wage is paid.

The recently enacted right to disconnect provisions under the Fair Work Act may also have relevance, where employer directions to work take place out of hours. Under the new scheme, employees have a right to ignore outof-hours contact except where doing so is unreasonable – and the Fair Work Commission has dispute resolution jurisdiction to resolve disputes over whether such contract is reasonable. Finally, demanding performance significantly beyond any relevant terms in an employment agreement may have contractual consequences (although, given the comprehensive legislative framework, this is less likely to be central to any potential claim).

Under the new scheme, employees have a right to ignore out-of-hours contact except where doing so is unreasonable – and the Fair Work Commission has dispute resolution jurisdiction to resolve disputes over whether such contract is reasonable.

Two recent cases

The high-profile recent case involving a Melbourne law firm, Readdie v People Shop Pty Ltd6 demonstrates an extreme example. Ms Readdie was employed for just three weeks. During this period, she was required to work on average over 60 hour a week, subjected to 12 to 18-hour days and instructed to watch a movie at 1am on a Sunday (The Miracle, about the 1980 US Olympic Hockey Team – with no apparent work relevance). Among other claims, Ms Readdie asserted that these hours were unreasonable and in accordance with section 62 of the Fair Work Act sought that penalties be imposed for contravention of the Act.

Magistrate Fawcett considered the following key principles.7 Firstly, that s 62(1) ‘imposes a limit [38 hours in a week] on the number of hours an employee may be asked or required to work’. Secondly, ‘the effect of s 62(1) is that requiring or requesting a full-time employee to work in excess of 38 hours a week is prima facie unreasonable’. Thirdly, ‘what is reasonable is necessarily assessed on a case-by-case basis, by reference to the employee’s circumstances and the employer’s business in accordance with the terms of s 62(3)’.

In reference to the employees’ circumstances, Magistrate Fawcett considered a number of factors including the risk to Ms Readdie’s health and safety. Magistrate Fawcett found that the hours Ms Readdie worked contributed to an exacerbation of her pre-existing medical condition. Further, Ms Readdie’s personal circumstances were considered, including her mother’s serious illness and death of her former partner. The unreasonable hours impeded Ms Readdie’s capacity to obtain a reasonable amount of sleep and caused her to be isolated, both physically and in her capacity to communicate, from her family.

Magistrate Fawcett also noted the vulnerability of Ms Readdie, in her first solicitor role:

[40] The circumstances in which the conduct took place included that Ms Readdie’s employment with People Shop was her first job as a lawyer, meaning she had no experience of how law firms ordinarily operate by which to judge the requirements on her. Further, they included that Ms Readdie was rarely provided with notice of the hours she would be required to work and was often not aware what time she would start or how long she would be required to work on any given day.”

Ultimately the court established that ‘the effect of the contravention on Ms Readdie was significant’ and that the firm’s conduct was ‘so repugnant that it constituted a repudiatory breach of contract.’ Magistrate Fawcett held that:

[136] The sheer number of hours [Ms Readdie] was required to work are, in my view, selfevidently excessive. The times of the day, night, and weekends she was required to work were arbitrary and unusual. … The requirement that she work excessive hours whilst staying in a hotel room with Mr Kuksal and Ms Xu deprived her of any form of personal autonomy or agency without any rational justification apparent. Whilst performing the additional hours, Ms Readdie’s time was monopolised by People Shop. …. Mr Kuksal’s requirement that Ms Readdie watch the Ice Hockey movie, unrelated to her work, at around 1am on a Sunday morning after having already worked approximately 14 hours on a Saturday, and maintain communication with him whilst doing so, was on any view unreasonable.

6 LaRe addie v People Shop Pty Ltd (Penalty) [2025] VMC 3

7 Re addie v People Shop Pty Ltd [2024] VMC 16 (27 November 2024) [126].

While the facts of this case are certainly extreme, the reasoning of Magistrate Fawcett is highly relevant. It demonstrates the strong approach the courts will take to ensure employers protect the health and safety of employees and the careful and comprehensive assessment of individual circumstances that will be undertaken. It serves as a timely reminder to employers to ensure that the wellbeing of their employees is considered as part of any request for additional hours to be worked.

Recent research has found significant challenges faced by lawyers in relation to work life balance.

Chin v Visual Thing Australia Pty Ltd, a 2024 case,8 offers another instructive case study. In this instance, the Federal Circuit and Family Court of Australia similarly found that Ms Chin’s employer, Visual Thing Australia, had contravened their obligation under section 62 of the Fair Work Act. Ms Chin was a creative retouching specialist who worked for Visual Thing Australia. While the case did not involve the legal industry, it underscores that the profession is far from alone in relation to excessive work hours.

In determining whether the additional hours worked by Ms Chin were reasonable, the Court acknowledged that Visual Thing Australia operated in a fast-paced industry subject to external deadlines resulting in a usual pattern of working 40-hours per week. However, on the basis of her employment, it was unlikely that there was anything requiring her to permanently work more than 38 hours per week. This was determined by the nature of her role. In her role, Ms Chin was not subject to a position of seniority, nor did she have managerial or supervisory responsibilities, a point of relevance for junior lawyers within law firms.

Of particular salience was the fact that Ms Chin had been required to work two hours of overtime per week for the entirety of her employment. Ms Chin’s contract stipulated that she was to work 40 hours per week without any additional payment for overtime, despite being covered by an industry award entitling her to overtime pay. The Court accepted that these two hours of overtime in a week were not in themselves unreasonable. However, it found that the frequency, regularity, and length of time over which this overtime was worked, resulted in such overtime became unreasonable, and therefore Visual Thing Australia was found to be in breach of s 62.

Conclusion

Whilst extensive legislative reform to protect the health and wellbeing of employers and limit excessive work hours has been enacted, instances of excessive work hours continue to arise – including in the legal profession. Recent research has found significant challenges faced by lawyers in relation to work life balance. It is incumbent on all legal practices to take steps to ensure compliance with Fair Work Act and work health and safety obligations in not requiring unreasonable additional hours from staff.

John Wilson is the managing legal director at BAL Lawyers and an accredited specialist in industrial relations and employment law. Kieran Pender is an honorary senior lecturer at the ANU College of Law, Governance and Policy and a consultant at BAL Lawyers. The authors thank Esther Bornstein and Jemima Green for their assistance preparing this article.

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 members of the ACT Law Society or an immediate family member. 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.

New Lawyers Reflections on the first year after admission

The first year in a legal practitioner’s career is a busy one, typified by long days and a seemingly never-ending mountain of information to absorb.

In each issue of Ethos, we feature members who have been admitted to practice within the past twelve months. These new professionals share their experiences, insights, and reflections as they navigate the beginning of their legal career. The Society would like to thank Benjamin, Kirsten, Madeleine and Selina for taking the time to share their experiences!

BENJAMIN ADAMS

What aspects of your job have you found surprisingly rewarding? My current role involves combing through contractual documents with a fine-tooth comb — checking for errors, clarifying terms, and making precise edits. I’ve been surprised by how often misunderstandings or disputes stem from vague or poorly drafted language. Fixing those issues and tightening the drafting has been unexpectedly satisfying and rewarding.

What surprised you the most about working as a lawyer in your first year? Honestly, how down-toearth everyone is. I had this fear that I’d be surrounded by ultra–type A personalities, but the lawyers I work with are approachable, collaborative, and genuinely enjoyable to be around. The social side of work has been easy and refreshing.

What was the biggest difference between law school and the real-world practice of law that you encountered? The biggest shift is the emphasis on commerciality. At law school, your audience is legally trained; in practice, it’s often clients with no legal background. You can be technically brilliant, but if your advice is overly long or inaccessible, you’ve missed the mark. Clear, concise, commercially relevant advice is everything.

What advice would you give to law students or recent grads entering their first year of practice? Two things: Master clear, plain English — it’s the most important tool you have. Be tech-savvy. Know how to format documents properly, run Boolean searches, and use AI tools effectively. AI is rapidly being integrated into legal practice, and those who can prompt well and use it efficiently will stand out.

KIRSTEN NASSER

What aspects of your job have you found surprisingly rewarding? I’ve found the court appearance component to be particularly rewarding. It has brought a heightened sense of responsibility, and it’s been incredibly fulfilling to see how far I’ve come since my first appearance. With each matter I handle in court, my confidence grows both in advocacy and in my legal writing each time. The progression has been encouraging and appearing in court has helped sharpen my skills in a way I didn’t anticipate when starting out.

What surprised you the most about working as a lawyer in your first year? The feeling of the responsibility shift when transitioning into a solicitor role. No two days are the same, and priorities can shift quickly depending on client needs or court deadlines. I had anticipated structure and routine, but I have found being a solicitor actually

requires a high level of adaptability and responsiveness. That unpredictability has kept the work engaging and has helped me develop stronger time management and problem-solving skills early in my career.

What was the biggest difference between law school and the real-world practice of law that you encountered? In law school, there’s a level of predictability. You can plan ahead for assignments, exams and other deadlines. In practice, however, matters can arise unexpectedly and often require immediate attention. The biggest adjustment for me was shifting from a structured academic environment to a fast-paced workplace where the ability to think quickly and adapt on the spot is essential.

What advice would you give to law students or recent grads entering their first year of practice? Don’t be afraid to ask questions and take full advantage of the knowledge and experience around you. I’ve been fortunate to gain a solicitor role at Maliganis Edwards Johnson which affords me the opportunity to work alongside supportive and highly knowledgeable partners and solicitors who are generous with their time and knowledge. Absorb as much as you can. No one expects you to know everything from day one, and seeking guidance from different senior practitioners will give you valuable perspectives that will shape and strengthen your development as a lawyer.

If you have been admitted within the last year and would be interested in being featured in an upcoming issue, please contact memberconnect@actlawsociety.asn.au

MADELEINE BUFFARD

What aspects of your job have you found surprisingly rewarding? I enjoy engaging with clients and trying to get the bottom of the challenges they face. Being able to identify the issue they are the most concerned about through listening is really rewarding, specifically when the clients were unsure what their needs were. The social interactions involved in practicing law are some of the most enriching and rewarding experiences I have had.

What surprised you the most about working as a lawyer in your first year? I was surprised by how important soft skills are. They are sometimes even more crucial than substantial knowledge. I realised that any advice, even if legally sound, would not be perceived favourably or even followed if it were not presented in a simple, positive and business minded manner.

What was the biggest difference between law school and the real-world practice of law that you encountered? Law school is very self-centred, when real-world practice is outwards looking. During law school, we work for grades and personal accomplishment. In legal practice, responding to the needs of other people is what truly matters. The tension is no longer about how we can fit as much studying in a day, but about how we can provide excellent legal advice to our clients.

What advice would you give to law students or recent grads entering their first year of practice? Not everything is about the law. If you want to be a trusted advisor, practice being a likable advisor. Be genuine and honest to your clients, colleagues and managers. This will make you a good lawyer.

SELINA ELFALAK

What surprised you the most about working as a lawyer in your first year? Learning about the different disciplines of law, and the areas of specialities including professional practice.

What was the biggest difference between law school and the real-world practice of law that you encountered? You cannot really base anyone’s matter or situation just on cases in a textbook (as everyone’s case is different), but reading law can be very difficult for some people as it is not written in plain English. When developing governance policies and procedures, I have to read each state’s laws and the commonwealth legislation, and they all vary - it would be easier if they had one rule or applicable section of the Act for every state. You have to be confident in how you speak and understand everything about the case, investigate and find the discrepancies in the case materials.

What advice would you give to law students or recent grads entering their first year of practice? Read as much as you can, go sit in the courtrooms and learnwriting essays is not all about law, it’s the language that is used. Expose yourself to different areas of law. I read WHS, workers’ compensation and family law resources; I also read and develop policies and procedures. But in whatever you do, be professional and be honest in all your work/dealings. Be a professional in your field.

Law Week 2025

A week of insight, learning, and community engagement

Law Week is an initiative held each May to promote public understanding of the law and its place in society. The ACT Law Society and its partners host a wide range of events for both the legal profession and the general public.

Law Week 2025 officially launched on Friday 16 May at the ACT Law Society’s Law Week Service Awards Dinner, held at picturesque Pialligo Estate. The evening brought together friends, colleagues, and distinguished guests from across the legal profession in a celebration of the people and purpose that inspire our legal community, while also raising vital funds for Roundabout Canberra – the Society’s nominated charity for 2025.

Hosted by ACT Law Society President Vik Sundar, the event was a vibrant celebration of excellence, innovation, and service within the legal profession. Australian Human Rights Commissioner Lorraine Finlay provided the keynote address, reflecting on the importance of Law Week as “an important opportunity to reflect on the role of the law in our lives, and to celebrate the work of those who uphold it.”

In her speech, Ms Finlay emphasised that a just and democratic society relies not only on law, but on the principles that guide them—fairness, equality, transparency, and accountability.

Law Week served as a powerful reminder of the critical role legal professionals play in upholding justice, and how the law affects everyday life. It also provides a platform to honour those working to make the law more accessible, inclusive, and responsive to the needs of our community.

KEY EVENTS INCLUDED:

The Blackburn Lecture: Australian Lawyers and Australian Democracy in 2025, delivered by The Honourable Justice Mossop, addressing the external challenges to Australia’s democracy, in particular those arising from the changes in the information landscape.

Important education for practitioners: Trauma-Informed and CulturallyCompetent Practice CPD webinar.

Women in Law: A breakfast hosted by the ACT Bar Association Women Barristers Committee, featuring guest speaker Vanessa Edwige.

The ACT Courts and Tribunal invited students and members of the public to partake in a number of activities:

• A mock jury empanelment

• You Be the Judge interactive event

• A local justice exhibition featuring community legal organisations including ACT Law Society’s New Lawyers, providing insights on a career in law

• An educational court tour.

Celebrating Excellence

LAW WEEK 2025 LAUNCH AND SERVICE AWARDS DINNER

Exploring Law, Engaging Communities, Inspiring Change

Honouring outstanding contributions

In 2025, the Society refreshed its annual awards framework, rebranding them as the ACT Law Society Service Awards. This new, dynamic model allows award categories and the number of recipients to be shaped by the nominations received. Where multiple nominees in a single category are considered deserving, the Awards Committee may choose to present more than one award in recognition of their contributions.

The 2025 Service Awards were presented at the Law Week Service Awards Dinner, celebrating exceptional contributions to both the legal profession and the broader community. This year’s recipients exemplify leadership, innovation, inclusivity, and a deep commitment to justice across a wide range of legal practice.

2025 recipients

Stacey Bell DDCS Lawyers

In recognition of her outstanding impact as a new lawyer, demonstrating innovation, inclusivity, and a strong commitment to access to justice and community advocacy.

Matthew Carmody OX Rooms

In recognition of his valuable contributions to innovation within the ACT legal profession.

Debra Parker Parker Coles Curtis

In recognition of her leadership and excellence in family law and dispute resolution.

A night to remember

The judging process was extremely tight due to the extremely high calibre of nominees in this year’s awards. On that note, the ACT Law Society would also like to congratulate the finalists for this year’s Awards:

Georgia Briggs

Briggs Law

Timothy Morton Glass Goodwin

Emily Hallt

Parker Coles Curtis

The Law Week Service Awards Dinner was more than a celebration—it was a powerful reminder of the values that underpin our profession. From inspiring speeches to heartfelt recognition, the evening captured the spirit of Law Week: exploring law, engaging communities, and inspiring change.

The ACT Law Society extends its warmest congratulations to all winners, finalists, and nominees, and thanks all nominators for their thoughtful submissions.

A special thank you to Lawcover for their generous support of the Dinner and their ongoing commitment throughout Law Week.

MEMBERS’ MEET UP Trivia night

In June, members of the ACT Law Society gathered together for our annual Trivia Night — and what a night it was!

Nexia Canberra were proud to sponsor a fantastic night of fun, facts and friendly competition at the ACT Law Society Trivia Night benefitting Roundabout Canberra. The evening brought together colleagues and associates for a great cause and plenty of laughs.

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From landmark legal precedents to pop culture curveballs, teams battled it out for trivia glory — all while raising funds for Roundabout Canberra, the Society’s chosen charity for 2025.

Roundabout Canberra provides essential baby and children’s items to families in need, supporting nearly 5,000 local children in 2024. Powered by volunteers and working with 140 social services, they help ensure local vulnerable children get a safe start—and every family receives the dignity and support they deserve.

Congratulations to our winners!

1st Terracon Terra-Risers Terracon Legal

2nd Legally Ebsurd HWL Ebsworth Lawyers

3rd In close Proximity to Answers Proximity Services

A huge thank you to everyone who participated, donated, and helped organise this memorable event. We’re proud to see how our legal community continues to come together for worthy causes.

We’re especially grateful to Nexia Australia, the Leo Cussen Centre for Law, Elliott Gray, and Legal Home Loans for making this event possible, as well as all of the local businesses who donated prizes for the raffle.

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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.

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TERRACON TERRA-RISERS

LEGALLY EBSURD

IN CLOSE PROXIMITY TO ANSWERS

UPCOMING CPD AND EVENTS

SEPTEMBER 2025

Navigating Federal Court Appeals

A View from the Bench

5 SEPTEMBER

Presented in collaboration with the Federal Court of Australia and the ACT Bar Association, this Canberrabased session offers practitioners an opportunity to hear directly from Federal Court Justices about key aspects of appellate practice.

Family Law Conference

10 SEPTEMBER

The annual Family Law Conference is a full-day event designed to explore the latest developments and challenges in family law practice.

From Forensics to Fintech

How AI is shaping legal and investigative practice

17 SEPTEMBER

Designed for legal practitioners, government officials, and professionals in investigations and compliance, this interactive event will delve into real-world applications, emerging challenges, and future opportunities at the intersection of technology and justice.

Mental health first aid for legal professionals

23 SEPTEMBER

This accredited mental health first aid course will give you the tools to assist a colleague or client who is developing a mental health problem or experiencing a mental health crisis. Learn to recognise the signs and symptoms, and how to respond.

Essentials Series

25 SEPTEMBER

Designed for both new and experienced lawyers, this series covers key updates and foundational topics across various practice areas. Gain valuable insights into emerging developments, new legislation, and crucial legal changes. OCTOBER 2025

OCTOBER 2025

Early Career Lawyers

Professional Development Series

2 OCTOBER

Government Lawyers Conference

15 OCTOBER

Wills & Estates Conference

22 OCTOBER

Court Etiquette & Advocacy for Family Lawyers

29 OCTOBER

NOVEMBER 2025

Legal Practice Management Workshop

4 - 6 NOVEMBER

Court Etiquette & Advocacy in the Federal Court

13 NOVEMBER

New Lawyers Afternoon

19 NOVEMBER

Essentials Series

27 NOVEMBER

Register for any of these upcoming CPD sessions via our website.

SEPTEMBER 2025

2025 ACT Golden Gavel

5 SEPTEMBER

Join us for the 2025 ACT Golden Gavel comedy speaking competition! Each year, new lawyers test their public speaking skills and comedic genius at Golden Gavel competitions across the country. The winners of each competition then face off at the National Golden Gavel. The competition is an opportunity for young lawyers to showcase their advocacy and comedy skills, with each given five minutes to argue their case on a far-fetched topic — revealed only 24 hours beforehand.

Members Meet-up Members’ Lunch

5 SEPTEMBER

Join us at Briscola Italian for a relaxed lunch of great company and authentic Italian fare. It’s the perfect chance to connect with fellow members of the legal profession over a delicious three-course lunch (yes, it’s as good as it sounds).

Tickets are heavily subsidised and always go fast — and if you’re in your first five years of practice, you can grab a spot for just $25*!

NOVEMBER

2025

AGM

13 NOVEMBER

The Annual General Meeting will be held at the Society’s offices at Level 1, 5 Constitution Avenue and/or online via Microsoft Teams.

DECEMBER

2025

Members’ Christmas Party

4 DECEMBER

Don’t miss this excellent opportunity to connect with peers, build valuable relationships within the legal community, and celebrate the successes of the year gone by!

Register for any of these upcoming events via our website.

High Court Judgments

CIVIL PROCEDURE LAW

Transfer of Proceedings

Class action: Group costs orders

In Bogan v The Estate of Peter John Smedley (Deceased) [2025] HCA 7 (12 March 2025), the High Court dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria.

A law firm cannot charge a contingency fee for legal on the basis of a percentage of the quantum of outcome of a proceeding. An exception to this is found in the form of a group cost order (GCO), which is permitted in Victoria by order of the court in group proceedings under Part 4A of the Supreme Court Act 1986 (Vic).

The Arrium class action related to loss in relation to the purchase of shares in Arrium, now in liquidation, an ASX listed company based in Sydney.

Two plaintiffs, Mr Bogan and Mr Walton, as representatives for other group members, both based in NSW, commenced proceedings claiming loss or damage against the defendants. The firm representing them, The Banton Group Pty Ltd, is based in Sydney but has an office in Melbourne. The proceedings are being funded by a litigation funder Equite Capital No. 1 Pty Ltd, which has a Singapore-based agent but has a director of the agent in Sydney.

Originally, the proceedings were commenced in NSW but transferred to Victoria, where the plaintiffs sought and were awarded a GCO of 40 per cent of the outcome of proceedings.

The trial judge noted several factors at play:

• “the Arrium class action ‘is complex, difficult and likely to consume time and resources’ and ‘[a] successful outcome for the plaintiffs and group members is attended by risk, not just in terms of establishing liability and proving losses but also in terms of recovery and of any judgment that might be won’ …

• “[i]n the absence of a GCO, there is a considerable risk, indeed a probability, that the Funder... will not continue to fund the proceeding”

• “[a]n alternate funder is not a realistic prospect”

• “[i]f the proceeding is not viably funded, the plaintiffs will be unable to continue with [the Arrium class action] and it is probable that [the Arrium class action] will terminate without adjudication or other resolution on the merits”

• “[j]ustice cannot be done in [the Arrium class action] if the plaintiffs and group members are not able to pursue their

claims through [the Arrium class action] and must abandon them” (at [41]).

The fifth defendant, an auditor, applied to transfer the proceedings to NSW under s1337P(2) of the Corporations Act 2001 (Cth). However, the GCO could not operate in NSW.

The High Court held that the fact that a GCO could not be made was relevant in consideration of the transfer of proceedings, pursuant to s1337P(2) of the Corporations Act.

Representative Actions Settlement Proposal–Notice to group members

In Lendlease Corporation Ltd v Pallas [2025] HCA 19 (7 May 2025) (Lendlease), the High Court (Gageler CJ and Gordon, Edelman, Steward, Gleeson, Jagot and Beech Jones JJ) unanimously allowed an appeal from the Supreme Court of NSW.

The issue was whether – in a representative action pursuant to Pt 10 of the Civil Procedure Act 2005 (NSW) (the CPA) –the Supreme Court of NSW could make an order pursuant to s175(5), that:

“[N]otice be given to group members of the intention of the defendant (and perhaps the representative plaintiff), if the proceeding is settled, to seek an order that a group member who has neither opted out of the proceeding nor registered to participate in the proceeding shall remain a group member (and whose claims against the defendant will therefore be extinguished by the settlement) but shall not, ‘without leave of the Court, be permitted to seek any benefit pursuant to any settlement (subject to Court approval) of [the] proceeding that occurs before final judgment’” (at [1]).

In Wigmans v AMP Ltd (2020) 102 NSWLR 199 (Wigmans), the NSW Supreme Court had determined that the Court did not have the power.

In Parkin v Boral Ltd (2022) 291 FCR 116, the Full Court of the Federal Court of Australia considered materially identical provisions under the federal act and found that the decision in Wigmans was “plainly wrong”.

The Court of Appeal in Lendlease, having concluded giving a notice would both subvert the statutory scheme and place the plaintiffs in a position of conflict with those unregistered members who had not opted out, then concluded that Wigmans was not plainly wrong and followed it.

The High Court held that the Court of Appeal had construed their powers too narrowly. Although the Court agreed that the concerns raised by the Court of Appeal were important to consider:

“Those legitimate concerns, however, do not confine the power of the Court to order that such a notice be given. Rather, they properly inform the steps the Court might consider necessary or appropriate to manage the inconsistency of interest to which a representative plaintiff might become subject in the settlement of a proceeding and in deciding whether to approve any such settlement” (at [3]).

COMPETITION AND CONSUMER LAW

Restrictive Trade Practices

Competition and Consumer Act 2010 (Cth) Nature of an ‘understanding’

In Australian Competition and Consumer Commission v J Hutchinson Pty Ltd; Australian Competition and Consumer Commission v Construction, Forestry and Maritime Employees Union [2025] HCA 10 (2 April 2025) (ACCC v Hutchinson; ACCC v CFMEU ), the High Court dismissed appeals from the Full Court of the Federal Court of Australia.

At issue was whether there was the nature of an understanding in Part IV of the Competition and Consumer Act 2010 (Cth) (Act) specifically pursuant to ss45(3) and 45EA.

J Hutchinson Pty Ltd (Hutchinson) was the head contractor on Southport A, a building project in Queensland, and engaged a subcontractor to undertake waterproofing works on the project site. The subcontractor undertook some work on site but did not have an enterprise bargaining agreement (EBA) with the Construction, Forestry and Maritime Employees Union (CFMEU).

There was an existing EBA between Hutchinson and the CFMEU that required Hutchinson to consult the CFMEU on any subcontractor hiring.

The CFMEU threatened industrial action if the subcontractor was allowed back on site.

There was no verbal or written confirmation by Hutchinson to accede to the demands of the CFMEU. Hutchinson, however, excluded the subcontractor from the project site.

The Australian Competition and Consumer Commission (ACCC) brought civil penalty proceedings on the basis that there had been an arrangement or understanding based on the meetings between Hutchinson and the CFMEU and the threatened action by the CFMEU.

At first instance, Hutchinson was fined $600,000, and the CFMEU was fined $750,000. They appealed to the Full Court, and the ACCC appealed to the High Court.

The High Court cited Rural Press Ltd v ACCC [2003] HCA 75 as an example of a case where a party communicating by an act or words acceding to a threat could be construed as an understanding or arrangement (at [21]).

The High Court held that: “A person who succumbs to a threat of industrial action by doing what is demanded under sanction of the threat, without express or tacit communication of a commitment to do so, does not arrive at an understanding with the person who makes the threat for the purposes of s 45E(3) (and s 45EA) of the Act” (at [4]).

CONSTITUTIONAL LAW

Immigration detention Real prospect of removal

In CZA19 v Commonwealth; DBD24 v Minister for Immigration and Multicultural Affairs [2025] HCA 8, the High Court dismissed two appeals and held that the unlawful detention of two non-citizens was not constitutionally invalid.

The claimants were awaiting the grant of a visa.

The claimants challenged the constitutional validity of their detention and sought declarations in the Federal Court of Australia.

Both parties had pending applications in the Administrative Appeals Tribunal (AAT). The AAT made directions to the effect that the claimants had met the criteria that they would be at serious risk of harm should they be returned to their home countries. On this basis, the claimants’ position was that their detention was not constitutionally valid once there was no real prospect of their removal in the foreseeable future, citing the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (NZYQ).

The High Court found this argument was contrary to the constitutional analysis in the authorities, including Kim v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2455 and leading up to NZYQ, and noted:

“This is because detention to enable visa processing remains constitutionally permissible for so long as that detention is itself ‘reasonably capable of being seen as necessary’ for the legitimate and non punitive purpose of visa processing” (at [46]).

CRIMINAL LAW

Mental impairment—Supervision orders

In KMD v CEO (Department of Health NT) [2025] HCA 4 (27 February 2025), the High Court unanimously allowed an appeal from the Court of Criminal Appeal of the Northern Territory (NTCCA) (at [1]). The appellant appeared in person.

In 2013, KMD was charged with offences, found unfit to be tried and then subsequently found not guilty by reason of mental impairment (at [10]). Where a court makes such a finding, it is required to declare that either the accused is liable to supervision or to be released unconditionally pursuant to the Criminal Code Act 1983 (NT) (Code). Such a restriction on liberty must be kept to a minimum, pursuant to s43ZM of the Code.

In addition, pursuant to s43ZN(2)(a), the Court must consider two reports from a psychiatrist or other expert.

Under the Code, a non-custodial supervision order (NCSO) allows the subject to live in the community, in contrast to a custodial supervision order (CSO).

In 2014, KMD was placed on a CSO with periodic reviews, undertaken in 2017 and 2021, which confirmed the CSO. The primary judge commenced a third periodic review in November 2021 (at [11]). The consultant psychiatrist for the NT’s Department of Health’s Mental Health team gave evidence that KMD refused to be assessed by them (at [13]). The primary judge published a preliminary decision in September 2022 and made orders for certain reports to be filed, noting that, although there was a risk of KMD in the community, whether KMD posed a risk to the community or to themselves would depend on the supports within the community (at [12]).

Having not been satisfied that KMD posed a serious risk either to themselves or the community, on 7 July 2023 the primary judge revoked the CSO and made a NCSO (at [16]).

The CEO successfully appealed to the NTCCA, in part on the grounds that the finding was “not reasonably open” based on the evidence (at [17]).

KMD appealed to the High Court, which held that KMD was under no obligation to comply with the medical assessment: “While it may be informative for a review of a CSO, and even in the best interests of persons such as KMD to cooperate with experts whose reports inform a review, nothing in those provisions or any other provision of Pt IIA [of the Code] makes such cooperation a prerequisite to the preparation of their reports, much less the conduct of the review under s43ZH” (at [25]).

The effect of the High Court’s decision was to set aside the Court of Appeal’s orders, setting aside the CSO. The NCSO was restored, subject to a stay of 14 days.

Appeal—Recorded evidence

In The King v ZT [2025] HCA 9 (2 April 2025), the High Court allowed an appeal from the Court of Criminal Appeal of the Supreme Court of NSW.

The accused was charged with murder. The principal evidence was alleged admissions recorded via telephone intercepts and police interviews.

These recordings were played to the jury and tendered as exhibits. The accused was convicted and appealed to the Court of Criminal Appeal, on the grounds the conviction was unreasonable or could not be supported having regard to the evidence.

The majority of the Court of Criminal Appeal did not view or listen to the recorded principal evidence, but allowed the appeal, quashed the conviction and entered a judgment of acquittal. The matter was subsequently appealed to the High Court.

The High Court considered whether the Court of Criminal Appeal erred, in that the reasonable doubt could not be explained away by the jury’s natural advantages in having listened to the principal evidence, and also whether the Court of Criminal Appeal failed to discharge its appellate function by failing to listen to the principal evidence.

The Court considered the appellate function and the High Court decisions in M v The Queen [1994] HCA 63, Pell v The Queen [2020] HCA 12 and the real forensic purpose test.

The Court of Criminal Appeal could not have assessed whether there was an advantage of the jury listening to the principal evidence if they had themselves not listened to it and formed a view.

The High Court held that:

“[I]t was not open to the majority of the Court of Criminal Appeal to both decline to listen to any part of the intercepted telephone calls or watch any part of the recorded police interviews and decide that the jury did not have any advantages capable of resolving its doubt. Given the nature of the doubt held, the majority did not have a rational basis to conclude that the jury had no advantages capable of resolving its doubt without having seen and heard sufficient of the evidence to identify the existence, nature and scope of the jury’s advantage(s), if any” (at [21]).

LEGAL PROFESSION LAW

Unincorporated law firm—In-house lawyer rule

In Birketu Pty Ltd v Atanaskovic [2025] HCA 2 (5 February 2025) (Birketu), the High Court dismissed an appeal from the Court of Appeal of the Supreme Court of NSW.

The High Court in Birketu was required to resolve the position as to the right to recover legal costs of employed solicitors. This decision represents an important clarification of the law

and overruled the Supreme Court of Victoria Court of Appeal decision in United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2020] VSCA (United Petroleum) (at [8]).

The High Court considered the question of recovery of costs in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 (Bell Lawyers).

There are two exceptions:

• the “Chorley exception”, where a self-represented solicitor can recover fees for work undertaken on their own behalf

• the “in-house lawyer rule” or “in-house solicitor rule”, where a litigant can recover fees for legal work undertaken by an employed lawyer on their behalf (at [18]).

A self-represented litigant has no right to recover legal costs of litigation (at [18]). This is also the position for a principal of a firm who represents the firm in litigation.

Mr Atanaskovic and Mr Jepps are the only two partners in the law firm Atanaskovic Hartnell (AH), an unincorporated legal practice (at [3]). AH successfully sued former clients Birketu Pty Ltd and WIN Corporation Pty Ltd for recovery of fees and costs. In doing so, AH claimed the amount of about $500,000 in fees for work done by an employed solicitor (at [5]).

At first instance, Brereton JA applied United Petroleum, finding for the appellants, which was subsequently overturned by the Court of Appeal.

The High Court held:

“To adopt the approach preferred by the Victorian Court of Appeal in United Petroleum and by Brereton JA and Ward P in the present case, and thereby to deny the entitlement of a litigant solicitor or unincorporated law firm to recover costs of work done by their employed solicitors, would be to depart from the application of the general common law principle” (at [27]).

MIGRATION LAW

Injunctions—Unlawful non-citizen

In Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5 (5 March 2025), the High Court by majority dismissed an appeal from the Supreme Court of NSW, with costs.

The respondent, an unlawful non-citizen in detention in Australia, sought a declaration that a commonwealth officer had exceeded their powers by declining to refer to the Minister for Immigration and Multicultural Affairs (Minister) a request under s195A of the Migration Act 1958 (Cth). The respondent also sought an injunction in the Federal Court of Australia to restrain the Minister from removing them from the country, pending the outcome of their case.

The Minister unsuccessfully appealed the matter to the Full Court, which dismissed the appeal thereafter to the High Court.

The High Court cited the decision in Tait v The Queen [1962] HCA 57 and held:

“The principle apposite to the present case is the power of a court to protect the integrity of its own processes by ensuring its capacity to effectively exercise its jurisdiction invoked in a proceeding pending before it” (at [25]).

NATIVE TITLE LAW

Appropriation—On just terms

In Commonwealth v Yunupingu [2025] HCA 6, the High Court by majority dismissed an appeal from the Full Court of the Federal Court of Australia.

The proceedings related to a claim for compensation for multiple past acts of appropriation and grant of land stretching back more than 100 years under (and before the commencement of) the Native Title Act 1993 (Cth), for native title rights of the Gumatj Clan or Estate Group of the Yolgnu people (Gumatj Clan), who argued that the appropriation of land was invalid, because it was inconsistent with the native title as it was at common law at the time.

The High Court cited Mabo v Queensland (No 2) (1992) 175 CLR 1, Newcrest Mining (WA) Ltd v Commonwealth [1997] 190 CLR 513 and Teori Tau v Commonwealth (1969) 119 CLR 564.

The High Court held that:

• the Commonwealth’s power to make laws for the government of a territory, conferred by s122 of the Constitution, did not extend to making laws for the acquisition of property otherwise than on just terms, pursuant to s51(xxxi) of the Constitution

• the extinguishment by or under a law of the Commonwealth prior to the commencement of the Native Title Act 1993 (Cth) constituted an acquisition of property within the meaning of s51(xxxi)

• the grant of pastoral lease in 1903 by the Governor of South Australia under the Northern Territory Land Act 1899 (SA) did not extinguish non-exclusive native title rights over minerals on the land.

Land abutting—Connection with land and waters

In Stuart v South Australia [2025] HCA 12 (9 April 2025), the High Court unanimously allowed an appeal from the Full Court of the Federal Court of Australia, on behalf of First Nations Australians who identify as “Arabana”.

The Arabana people claimed native title over 150 square kilometres around the township of Oodnadatta, SA, known as the “Overlap Area”.

The proceedings related to s223(1) of the Native Title Act 1993 (Cth) (Act) and whether the appellants possess “rights and interests” under the traditional laws acknowledged and the

traditional customs observed, as well as “a connection with land and waters” by those customs and laws.

The proceedings commenced in the Federal Court of Australia.

The High Court held that the trial judge erred in applying the test under s223(1) by focusing on physical acts of observance and acknowledgment of traditional laws and customs, rather than by asking the “broader question of whether the Arabana, by their traditional laws and customs, have a ‘connection’ with the Overlap Area” (at [3]).

The High Court remitted the proceedings to the Federal Court of Australia for a determination of native title claim under s223(1) of the Act.

STATUTES – CONSTRUCTION LAW

Limitation of Actions Act 1958 (Vic)

Setting aside settlement deed for personal injury resulting from child abuse if ‘just and reasonable’ to do so

In DZY (a pseudonym) v Trustees of the Christian Brothers [2025] HCA 16 (9 April 2025), the High Court (Gageler CJ, and Gordon, Edelman, Steward and Gleeson JJ) dismissed appeals from the Court of Appeal of the Supreme Court of Victoria.

DZY entered into two separate settlement deeds with the Trustees of the Christian Brothers (Trustees) in both 2012 and 2015. These were in settlement of liability for a claim arising from sexual assaults in the 1960s, while DZY was at a school operated by the Congregation of Christian Brothers. Both deeds contained an agreement not to bring further claims for damages arising from the sexual assaults and recorded that DZY did not allege any economic loss in relation to the sexual assault. There were some developments following the signing of the settlement deeds. There was an addition of s27OA and ss27QA to 27QF into the Limitation of Actions Act 1958 (Vic) (LAA Act), which could allow a court to set aside a settlement agreement for physical or sexual abuse of a minor if it were just and reasonable to do so. At the time the settlements were entered into, two obstacles posed barriers to claims:

• a defence under the LAA Act (“limitation defence”)

• difficulties around suing an unincorporated association (the so-called “Ellis defence”).

DZY commenced an action in the Supreme Court of Victoria claiming general damages for non-economic loss and for

economic loss. The Trustees did not contest the general damages but did contest the economic loss claim.

The primary judge set aside the settlement agreements in their entirety notwithstanding and the Trustees appealed to the Court of Appeal, arguing the primary judge had erred in setting aside the agreement for economic loss.

At issue in the High Court was whether, on proper construction of s27QE of the LAA Act, the limitation defence or Ellis defence were required to have materially affected the settlement.

The majority cited the principles of construction in Project Blues Sky v Australian Broadcasting Authority [1998] HCA 35 “by reference to the language of the instrument viewed as a whole” (at [69]).

In finding that the Court of Appeal erred, the majority noted that the previous defences were either a prerequisite or quasiprerequisite, and the majority cited the second reading speech:1 “It is not necessary that the existence of the limitation period be the predominant reason as to why the agreement was entered into. There may be a number of reasons that a plaintiff entered into such an agreement, including but not limited to unequal bargaining power, barriers to identifying a proper defendant, feelings of guilt and shame compounded by the burden of giving evidence and being subject to cross examination, or the behaviour of the relevant institution” (at [28]).

The majority did, however, hold that the existence of the defences could be a factor in determining whether setting aside the agreements was “just and reasonable”. But the High Court also held that the Court of Appeal was correct in the assessment that the evidence did not support that it was just and reasonable to set aside the deeds on the economic loss claim.

1 Victoria, Parliamentary Debates, Legislative Assembly, 15 August 2019, 2695–2696.

“This Court should not strain to find appellate error. It should not voraciously construe the reasons of appellate courts.” STEWARD J

DZY (a pseudonym) v Trustees of the Christian Brothers [2025] HCA 16 at [40].

AUTHOR Tasman Ash Fleming

Victorian barrister and nationally accredited mediator in general commercial practice with a focus on estate matters.

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.

Federal Court Judgments

MAY 2025 / AUGUST 2025 LIJ

ADMINISTRATIVE LAW / TAXATION

Circumstances on appeal on a question of law where the Court can make final orders in lieu of remitter to the Administrative Appeals Tribunal

In Charles Apartments Pty Ltd v Commissioner of Taxation [2025] FCA 461 (9 May 2025), the applicant appealed to the Court on a question of law from the decision of the Administrative Appeals Tribunal (Tribunal), pursuant to s44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), to vary an objection in part.

At the core of the applicant’s submissions on the appeal was that the Tribunal erred, as a matter of law, in relation to whether an additional amount as a deduction for interest in the sum of $946,000 should have been allowed under s8-1 of the Income Tax Assessment Act (Cth) (at [84]). The Court held that none of the matters raised by the applicant established the error advanced by it. The Commissioner of Taxation (Commissioner) resisted the applicant’s appeal and challenged the Tribunal’s decision, by way of a cross-appeal on questions of law in relation to the interest deduction. The Court held that the Commissioner’s cross-appeal must be allowed.

Neither party sought for the matter to be remitted to the Tribunal if they succeeded. This was on the basis that any findings of fact that needed to be made, for either of the outcomes contended for, had already been made by the Tribunal (at [130]). The Court considered ss176 and 177 of the Administrative Review Tribunal Act 2024 (Cth), which are similar to s44 of the AAT Act (at [132]–[136]). Following consideration of relevant case law authorities, Wheatley J summarised the position to be that, if the following matters are satisfied, it may be appropriate for the Court to make final orders, without remitting to the Tribunal:

(a) neither party sought for the matter to be remitted …

(b) both parties agree that the Court should resolve the relevant issue (depending on which ground(s) of appeal or the cross-appeal might be accepted) …

(c) both parties agree that the Tribunal had fully found all … the relevant facts, relevant to the grounds of appeal or cross-appeal

(d) the resolution of the question(s) of law could only lead to one outcome” (at [142]).

The Court held that, based on the facts as found by the Tribunal, other than findings made as the result of the error of law, there can only be one outcome (at [144]–[152]). The decision of the Tribunal was set aside, and the Court determined that the Commissioner’s objection decision be affirmed.

CIVIL PENALTY LAW

Contraventions of ss73J and 73V of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) – civil penalties

In Commissioner of the NDIS Quality and Safeguards Commission v Valmar Support Services Ltd [2025] FCA 11 (22 January 2025), the Court ordered the respondent (Valmar), pursuant to s82(3) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth), read with s73ZK of the NDIS Act, to pay to the Commonwealth a pecuniary penalty of $1,916,250 for contraventions of ss73J and 73V of the NDIS Act that were the subject of six declarations.

Between February 2016 and May 2020, Valmar operated a residential group home in the ACT at which three National Disability Insurance Scheme (NDIS) participants, all men in their mid-40s, resided. Each of the residents had intellectual disabilities and all were known by Valmar to be at risk of choking when they consumed food or drink. Despite this, none of the support workers who attended to their care had any formal training with respect to this risk. On many occasions, Valmar exposed (or increased) the risk that the residents would choke on their food. On 14 May 2020, one of the residents, Mr H, choked and collapsed while eating food that had been prepared for him, and where the management plan meant to ensure his safety was not complied with. He died three days later.

Valmar accepted it was liable for numerous breaches of the NDIS Act. The parties submitted that the contravening conduct constituted 24 contraventions and proposed an agreed single penalty of $1,916,250 (at [50]–[52]).

The Court was concerned with the parties’ approach, which relied on, among other things, an approximate percentage of the maximum penalty (at [70]), for three reasons. First, “care must be taken to not reduce the highly evaluative exercise to a mathematical one” (at [71]–72). Second, the approach appeared “to misapprehend the degree of seriousness” of some contraventions and was not reflected in the proposed penalty (at [73]–[74]). Third, it was problematic “to impose a penalty

by reference to a percentage said to be referrable to what is perceived to be percentages accepted by the Court in another case” (at [75]–[76]).

Nonetheless, the Court imposed the proposed penalty of $1,916,250. Raper J explained:

“Ultimately, however, when all … the relevant facts and circumstances (together with all relevant considerations) are weighed in the balance, reluctantly it is my view the agreed penalty is within the range of what could be considered an appropriate penalty, but is at the very lowest possible end of the range. I have … also taken into account the fact that a regulator, in this context, is not disinterested, and it can be assumed that the Commissioner has fashioned the penalty submissions, including the agreed amount, ‘with an overall view to achieving that objective and thus perhaps, if not probably, with one eye to considerations beyond the case at hand…” (at [79]).

Relevance of whether legal advice was sought to the assessment of civil penalty

In Australian Securities and Investments Commission v HCF Life Insurance Company Pty Ltd (Penalty) [2025] FCA 454 (8 May 2025), the Court was determining a pecuniary penalty order under s12GBB of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) for misleading the public as to the nature, characteristics and suitability of financial services. This was following an earlier judgment on liability, in which the Court found that the respondent (HCF Life) had contravened s12DF of the ASIC Act with certain terms of its life insurance policies.

The principles relating to the assessment of pecuniary penalties were not the subject of significant dispute between the parties (at [3]–[14]). A key factual matter that was in dispute was the weight that should be attributed to obtaining legal advice in determining a suitable penalty, particularly where legal advice was sought but did not raise the possibility that a clause within the terms may be misleading. This issue was addressed as part of the circumstances in which the contraventions took place, during two different time periods (at [68]–[83]).

The Court held that the weight attributed to obtaining legal advice will depend on all circumstances of the case, including nature of contravention, nature of advice obtained and degree of certainty or qualification with which it is expressed (at [70]).

In the earlier time period, the fact that HCF Life sought a review by external lawyers of the relevant product disclosure statements (PDS) as a whole for their compliance with financial services laws before they were issued evinces an intention by HCF Life to comply with those laws, including s12DF of the ASIC Act (at [70]). HCF Life’s external lawyers failed to identify the misleading nature of the PDS. Jackman J held that

the circumstances in which the contraventions took place in the earlier time period did not in themselves warrant the imposition of any pecuniary penalty (at [76]).

However, in the later time period, ASIC discharged its onus of establishing that HCF Life was aware of some risk of potential unlawfulness of its conduct, but the Court was unable to find, based on the evidence, what level of risk HCF Life was aware of at that time (at [80]). Ultimately, Jackman J held that, while it was a significant matter in the assessment of pecuniary penalties, it was not at the higher ranges of moral culpability (at [83], [110]).

The Court imposed a pecuniary penalty of $750,000 as appropriate (at [107]–[110]).

Contraventions of ss73J and 73V of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) – civil penalties

In Commissioner of the NDIS Quality and Safeguards Commission v Valmar Support Services Ltd [2025] FCA 11 (22 January 2025), the Court ordered the respondent (Valmar), pursuant to s82(3) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth), read with s73ZK of the NDIS Act, to pay to the Commonwealth a pecuniary penalty of $1,916,250 for contraventions of ss73J and 73V of the NDIS Act that were the subject of six declarations.

Between February 2016 and May 2020, Valmar operated a residential group home in the ACT at which three National Disability Insurance Scheme (NDIS) participants, all men in their mid-40s, resided. Each of the residents had intellectual disabilities and all were known by Valmar to be at risk of choking when they consumed food or drink. Despite this, none of the support workers who attended to their care had any formal training with respect to this risk. On many occasions, Valmar exposed (or increased) the risk that the residents would choke on their food. On 14 May 2020, one of the residents, Mr H, choked and collapsed while eating food that had been prepared for him, and where the management plan meant to ensure his safety was not complied with. He died three days later.

Valmar accepted it was liable for numerous breaches of the NDIS Act. The parties submitted that the contravening conduct constituted 24 contraventions and proposed an agreed single penalty of $1,916,250 (at [50]–[52]).

The Court was concerned with the parties’ approach, which relied on, among other things, an approximate percentage of the maximum penalty (at [70]), for three reasons. First, “care must be taken to not reduce the highly evaluative exercise to a mathematical one” (at [71]–72). Second, the approach appeared “to misapprehend the degree of seriousness” of some

contraventions and was not reflected in the proposed penalty (at [73]–[74]). Third, it was problematic “to impose a penalty by reference to a percentage said to be referrable to what is perceived to be percentages accepted by the Court in another case” (at [75]–[76]).

Nonetheless, the Court imposed the proposed penalty of $1,916,250. Raper J explained: “Ultimately, however, when all … the relevant facts and circumstances (together with all relevant considerations) are weighed in the balance, reluctantly it is my view the agreed penalty is within the range of what could be considered an appropriate penalty, but is at the very lowest possible end of the range. I have … also taken into account the fact that a regulator, in this context, is not disinterested, and it can be assumed that the Commissioner has fashioned the penalty submissions, including the agreed amount, ‘with an overall view to achieving that objective and thus perhaps, if not probably, with one eye to considerations beyond the case at hand’ …” (at [79]).

COST LAW

Whether the court should make a maximum costs order

In Doctors for the Environment (Australia) Inc v National Offshore Petroleum Safety and Environment Management Authority [2025] FCA 598 (6 June 2025), the applicant commenced a proceeding for judicial review of a decision made by the National Offshore Petroleum Safety and Environment Management Authority (Authority) to accept an environmental plan, prepared and lodged by Woodside Energy Scarborough Pty Ltd (Woodside), pursuant to the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 (Cth) (Regulations). The environmental plan related to activities to develop the Scarborough gas resource, off the coast of WA –a project with an estimated cost of US$12 billion.

Before the hearing of the judicial review proceeding, the applicant applied for an order pursuant to r40.51(1) of the Federal Court Rules 2011 (Cth) (Rules). The application requested that:

• the maximum costs as between party and party that may be recovered by the respondents collectively from the applicant be no higher than $80,000

• the maximum costs as between party and party that may be recovered by the applicant from the respondents collectively be no higher than $80,000.

The Court accepted the evidence of the applicant, an incorporated charity, that it did not have the capacity to pay more than $80,000 to satisfy an adverse costs order and that, if it was unsuccessful in obtaining the maximum costs order sought, it would be forced to abandon the judicial review proceeding (at [7]–[8], [22]). The Court also accepted Woodside’s evidence that the reasonable party/party recoverable costs of the proceeding would be at least $220,000, excluding GST (at [9]).

McElwaine J held that it was an appropriate case for the exercise of the discretion to make a maximum costs order, under r40.51 of the Rules, to facilitate access to justice in a case that raised important questions about the lawful exercise of statutory power (at [12]). The Court rejected Woodside’s submission that the applicant was acting in its private interests and in order to secure some benefit for it and its members (at [13]).

A further matter that supported the public interest consideration in the exercise of the discretion to make a maximum costs order was that the applicant extensively engaged with the Authority and with Woodside concerning the preparation of the environmental plan as a “relevant person” within the meaning of reg 25 of the Regulations (at [15]). In addition, the assessed party/ party costs of Woodside of $220,000 was insignificant, both in the context of the estimated costs of the project and in the ability of Woodside to absorb the costs of the proceeding in excess of the maximum amount proposed by the applicant (at [17]).

The Court held there was “no warrant for reading in an implied limitation to the exercise of the power at r40.51 to the effect that it is, or is ordinarily limited to, less complex cases” (at [19]). Ultimately, the discretion is guided by what is an appropriate order in the interests of the administration of justice in the particular circumstances (at [20]).

The applicant sought the maximum costs order in the range of $20,000 to $80,000. McElwaine J said:

“I am unpersuaded it should be anything less than $80,000, because the applicant should be at some material financial risk in the event that it fails in the proceeding and suffers an adverse costs order” (at [28]).

PRACTICE AND PROCEDURE LAW

Public interest immunity (PII) claims upheld by primary judge – application for leave to appeal on PII

In AIX20 v Director-General of Securit y [2025] FCAFC 38 (28 March 2025), the Full Court heard an application for leave to appeal concerning claims for public interest immunity (PII).

The application also concerned the applicant’s proposal that the Court should order that those documents be disclosed to named, security-cleared counsel, subject to certain undertakings to be given by them, and used only in closed court and subject to suppression and non-publication orders (the Procedure).

In the substantive proceeding, the applicant was seeking declarations and damages arising from negligence of the Director-General of Security (Director-General) alleging that the Director-General had breached the duty to take reasonable care owed by him to the applicant in the exercise of the powers under ss17(1) and 37 of the Australian Security Intelligence Organisation Act 1979 (Cth). This was in relation to adverse security assessments of the applicant, which resulted in the applicant being detained in immigration detention. It was further alleged that the second respondent, the Commonwealth, falsely imprisoned the applicant.

The docket judge ordered the parties to give standard discovery pursuant to r20.14 of the Federal Court Rules 2011 (Cth). The Director-General made some PII claims. The applicant sought leave to appeal from the orders made by the primary judge upholding the Director-General’s PII claims.

The principles applicable to establishing a claim for PII were not in dispute (at [19]). On a proposed first ground, the Full Court rejected the applicant’s argument that the primary judge had erroneously applied an “unqualified rule of deference” to the opinions expressed by the Director-General’s deponent and that this led his Honour to accept uncritically all the reasons given by the Director-General’s deponent as to why the public interest did not favour disclosure. The Full Court further rejected the applicant’s contention that the primary judge failed to have regard to the nature of the proceeding and the “structural context” in which the Director-General’s claims fell to be determined, being that upholding of the claim as made would deny the applicant access to documents which the DirectorGeneral himself has determined were “directly relevant” to the issues in dispute (at [23]–[24]).

On a proposed second ground, the Full Court rejected the applicant’s submission that the primary judge erred by failing to consider the Procedure in the balancing exercise as between the competing interests in determining whether the claims for immunity should be upheld and instead dealt with the availability of the Procedure as a matter relevant to an “exercise of discretion” (at [31]–[37]).

Finally, the Full Court rejected a proposed third ground that the primary judge’s order upholding the Director-General’s claim for PII was more generally not the correct decision (at [38]–[44]).

Nature of concise statements – Leave to amend

In Health Service Union v Asmar (No 4) [2025] FCA 403 (24 April 2025), the Court granted leave to the applicant to amend its originating application and concise statement. Dowling J summarised authorities as to the nature and operation of a concise statement (at [10]–[14]). That included another recent decision of the Court, Commissioner of NDIS Quality and Safeguards Commission v Irabina Autism Services (in liq)(No 2) [2025] FCA 238, in which Horan J explained (at [39]):

“While a concise statement is different from a pleading, it still performs part of the same role of disclosing to another party the case to be made against them. In a concise statement, such disclosure will usually be broader and less comprehensive than in a conventional pleading, so that ‘other documents and case management techniques might be called upon to complete the picture’: NAB (No 2) at [26], [28] … see also ASIC v Westpac Securities Administration Ltd … (2019) 272 FCR 170 at [185] [and] Delor Vue Apartments at [141], [144]1 ... In addition to the provision of particulars, this might encompass the delivery of affidavits or witness statements, statements of issues, or written outlines of opening submissions. As McKerracher and Colvin JJ stated in Delor Vue Apartments at [144], ‘[t]he concise statement process recognises that issues may be refined as the conduct of the interlocutory stages progress and that there are often benefits to be obtained in bespoke case management orders’.”

Judgment of the Full Court reserved – Application to reopen appeal to amend notice of appeal and to adduce further evidence to support additional ground

In Roberts-Smith v Fairfax Publications Pty Ltd (Reopening Application) [2025] FCAFC 66 (16 May 2025), the Full Court determined the appellant’s interlocutory application to reopen his appeal after the hearing of appeal and months after judgment had been reserved, to amend his notice of appeal and to adduce further evidence to support additional grounds.

The substantive appeal arose from the appellant’s defamation proceeding. In 2018, the respondents published several articles about the activities of Australian special forces soldiers during the war in Afghanistan. The articles contained sensational

1 Australian Securities and Investments Commission v National Australia Bank (No 2) [2023] FCA 1118 (NAB (No 2)) at [26], [28] (Derrington J); see also Australian Securities and Investment Commission v Westpac Securities Administration Ltd [2019] 272 FCR 170 at [185] (Allsop CJ) and Allianz Australia Insurance Ltd v Delor Vue Apartments CTS39788 [2021] FCAFC 121 (Delor Vue Apartments) at [141], [144] (McKerracher and Colvin JJ).

allegations that war crimes had been committed by soldiers in the Special Air Service Regiment. Although he was not named in the articles, the appellant instituted proceedings claiming he had been defamed in them. The respondents contended that the defamatory imputations were substantially true and relied on the defence of contextual truth. Following a lengthy trial, while the primary judge found that the appellant was defamed in the articles, he also found that most of the imputations were substantially true and upheld the defence of contextual truth with respect to the rest. The trial judge found that the respondents had proved to the requisite standard the truth of the imputations that the appellant had committed or was complicit in murder on three separate occasions in 2009 and 2012. In an appeal that was heard but not yet decided, the appellant argued that those findings should not have been made.

The interlocutory application to reopen his appeal in order to file an amended notice of appeal and adduce further evidence rested on an audio recording that, since the hearing of the appeal, was made available to his solicitors. The recording was of a portion of a phone conversation between the second respondent, a journalist (Nick McKenzie), and a witness whose identity was the subject of suppression orders. The proposed amended notice of appeal would add a new ground that there has been a miscarriage of justice and denial of a fair trial to the appellant in the trial, by reason of the journalist’s misconduct “by improperly and unlawfully obtaining and retaining information concerning the Appellant’s legal strategy concerning the trial that was confidential and privileged to the Appellant” (at [30]).

As the evidence in question did not relate to any fact already in issue, the case was not governed by the usual approach, in which the proposed additional evidence would be admitted only if it was not available to the party concerned during the trial and its admission during the trial would have been likely to change the result (at [34]). Instead, the appellant sought to run a new point that turned on conduct during the proceeding itself, which was alleged to have resulted in a miscarriage of justice (at [35]). The Full Court cited High Court authority for the proposition that cases “where a trial has miscarried through misdirection [or] misperception of evidence” and cases of “surprise, malpractice or fraud” have been recognised as standing outside the general rule in relation to the introduction of “fresh evidence”.1

As to the discretion to permit reopening, the Full Court identified the following issues to be considered:

1. the prospects of success of the proposed new ground of appeal

2. whether the raising of the new point at this stage would cause unfairness to the respondents

3. whether there is a sufficient explanation for the alleged misconduct by Mr McKenzie not having been raised during the trial or earlier in the appeal process (at [38]).

The Full Court considered the concept of “miscarriage of justice” in the context of civil proceedings (at [40]–[43]). Perram, Katzmann and Kennett JJ stated:

“What we take from [the] authorities is that cases where some form of misconduct in the course of a trial is advanced as a reason why the judgment should be set aside involve consideration of whether, ‘in the interests of justice, the matter in question should be tried afresh’. The inquiry therefore does not end with the identification and proof of misconduct. Deciding where the ‘interests of justice’ lie is, as noted earlier, an evaluative exercise” (at [44]).

The Full Court explained that evaluation needs to take account of:

1. general considerations relating to the administration of justice (including the public interest in the finality of litigation)

2. the degree of culpability of the successful party

3. any lack of diligence on the part of the unsuccessful party

4. the extent of any likelihood that the result would have been different if the relevant misconduct had not occurred (at [44]).

Ultimately, in relation to the final factor, the correct approach is that a new trial should be ordered only if the Court were persuaded that Mr McKenzie engaged in “wilful misconduct” of the kind alleged. There is at least a real possibility that, absent that misconduct, the result in the Court below would have been different and, in all the circumstances, the misconduct is such that it is in the interests of justice for there to be a new trial (at [49]).

The Full Court held that the case, as encapsulated in the proposed amended notice of appeal, was not sufficient to establish that the judgment below should be set aside and a new trial ordered (at [50]–[61]). Further, even if proposed, new ground 17 articulated a case that was capable of causing the judgment below to be set aside, it failed at an evidentiary level for various reasons (at [82]–[110]).

In a separate judgment delivered on the same day, the Full Court dismissed the appellant’s appeal.2

STATUTORY INTERPRETATION LAW

Crown immunity as a general principle of statutory interpretation

In Mayfield Development Corporation Pty Ltd v NSW Ports Operations Hold Co Pty Ltd [2025] FCAFC 43 (3 April 2025), the issues before the Full Court included a defence based on Crown immunity.

The appellant (Mayfield) alleged that it lost the opportunity to develop land at the Port of Newcastle because, in 2013, the State of NSW entered into deeds with the respective operators of Port Botany and Port Kembla. Entry into those deeds – as well as the arrival at an alleged understanding as between the two operators and their parent (together, the NSW Ports) and the State – was alleged by Mayfield to have contravened s45 of the Competition and Consumer Act 2010 (Cth) (CCA). The Australian Competition and Consumer Commission (ACCC) made a claim of that kind in separate Federal Court proceedings brought against the NSW Ports and the State. The ACCC’s claim failed for reasons that included a determination that construing the CCA by applying the principle of construction as to Crown immunity led to the conclusion that s45 of the CCA did not apply to the conduct of the NSW Ports in respect of their entry into the deeds. The Full Court upheld the Crown immunity-based conclusions of the primary judge – see Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd (2023) 296 FCR 364 at [402], [410]–[412] and [427].

In its proceedings, Mayfield maintained its own claim that the CCA had been contravened. The primary judge determined that he was bound to follow the Full Court’s decision in the appeal in the ACCC proceedings as to Crown immunity, so Mayfield’s proceeding was dismissed. Mayfield appealed against the dismissal, submitting that the determination as to derivative Crown immunity was in error. In addition to opposing the appeal, each of the NSW Ports and the State contended that the primary judge erred as to the answers given to certain other questions involving issue estoppel and abuse of process, and the dismissal of the proceedings should be upheld on that basis.

The Full Court noted that since the decision in Bropho v Western Australia (1990) 171 CLR 1, it has been clear that the notion of the Crown’s immunity from the application of a statute does not involve the assertion of some form of prerogative, but rather is a general principle of statutory construction (at [11]–[12]).

Mayfield accepted that, in order for its appeal to succeed as to the application of the principle of statutory construction to the CCA, it had to persuade its Full Court that the decision of the Full Court in the appeal in the ACCC proceedings was “plainly wrong” (at [13]). This principally turned upon a proper understanding of the High Court decision in Australian Competition and Consumer Commission v Baxter Healthcare Pty Limited (2007) 232 CLR 1 (at [14]) (Baxter). The Full Court in Mayfield’s appeal held it cannot be said that Baxter affords compelling reasons why the conclusion of the majority in the appeal in the ACCC proceedings was wrong (at [39]–[47]).

Mayfield’s appeal was dismissed.

AUTHOR

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.

INDUSTRIAL LAW

Declarations made in relation to clauses of the Black Coal Mining Industry Award 2020 concerning public holidays and shift lengths

In Mining and Energy Union v OS ACPM Pty Ltd [2025] FCA 200 (4 March 2025), the Court (Logan J) made multiple declarations in relation to clauses of the Black Coal Mining Industry Award 2020 (Award) concerning public holidays and shift lengths.

These declarations included that in relation to cl 29.3(a) of the Award, the words “provided that work will not be carried out on 2 of such holidays” refer to work not being carried out by the workforce, collectively, on two public holidays per year (order 1).This meant that OS ACPM Pty Ltd (OS), as the employer in question, was required to operate a roster of no more than 363 days per year (or 364 days in leap years) and provide for at least two public holidays per year on which maintenance employees, collectively, were not rostered to work (order 2).

In this respect, the Court rejected OS’s cross claim that the employer was only required to nominate which public holidays would be worked by employees pursuant to cl 25.2 if (and when) the employer and employees agreed on a date on which the employer would make the relevant nomination (order 4 and at [16]).The Court likewise rejected OS’s cross claim that cl 29.5(a) required an employer to “nominate two public holidays for each employee employed by the employer, being public holidays on which that employee will not perform work, which public holidays are not required to be the same for every employee employed by that employer” (order 4 and at [16]).

The Court further declared that in relation to cl 15.1(a) of the Award, the words “the ordinary hours of the shift” refer to the total length of the shift employees are rostered to work (order 3).In doing so, the Court rejected OS’s cross claim that cl 15.b and (c) of the Award refer to ordinary hours payable at ordinary rates and do not include rostered overtime payable at overtime rates. Likewise, the Court rejected OS’s cross claim that further and in the alternative, the reference to “[a] shift … longer than 10 ordinary hours” in cl 15.1(c) of the 2020 Award does not include shifts that are made up of 10 ordinary hours (payable at ordinary rates) and 2.5 hours of rostered overtime (payable at overtime rates) (order 4 and at [16]).

Consideration of appropriate penalty where not all facts agreed in penalty determination pursuant to Fair Work Act 2009 (Cth)

In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Jemena Networks (ACT) Pty Ltd [2025] FCA 203 (17 March 2025), the Court (Needham J) considered the appropriate penalty where not all facts were agreed on in a penalty determination.

In this case, Jemena Networks (ACT) Pty Ltd (Jemena) and Icon Distribution Investments Ltd (Icon) failed to consult with the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Union) prior to amending the procedure for recording live work on or near a low voltage network and failed to establish a Safety Committee in contravention of the relevant enterprise agreement, s50 of the Fair Work Act 2009 (Cth) (FW Act) and ss47(1) and 47(2) Work Health and Safety Act 2011 (ACT) (at [5]). Jemena and Icon admitted to these contraventions (at [1]), and all parties submitted an agreed range of civil penalty for the purposes of a penalty pursuant to the FW Act (at [6]).

However, the parties did not agree on all relevant facts (at [6]). This meant that the Court was required to consider the appropriate penalty in circumstances where the parties did not agree on all relevant facts. One example of a disputed fact was whether Jemena and Icon (trading as Evoenergy) introduced changes to the relevant “Live Work Procedure” without consultation in circumstances where Evoenergy knew that consultation and training were required (at [13]). The decision referred to witness evidence that stated that the changes had been implemented with an eye to mitigating certain protected industrial actions, and that the consultation time had been reduced because of the time pressures associated with the impact of the relevant bans (at [51]). The Court determined that the answer to the disputed fact was “Yes” (with a caveat) (at [135]). The Court found that Evoenergy was motivated to disregard the requirement of consultation because of imminent protected industrial action that would cause work on the relevant network to cease (at [140]). The Court processed other disputed facts throughout the judgment too. The Court then determined the appropriate penalty against Jemena and Icon pursuant to s546 of the FW Act by relying upon the usual principles, such as the Court’s requirement to exercise the discretion to impose penalties under s546 judicially – meaning fairly and reasonably having regard to the subject matter, scope and purpose of the legislation (at [139]).

AUTHOR Dr Nadia Stojanova Victorian barrister with a focus on employment law, industrial and regulatory law.

Family Court Judgments

MAY

2024 / AUGUST 2025 LIJ

CHILDREN

Variation of parenting orders – Court’s decision that s 65DAAA is satisfied is “a finding or a ruling on the way to final orders” (reversible at any time), not a judgment so it cannot be appealed

In Lehtinen [2025] FedCFamC1A 69 (17 April 2025), Aldridge J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, heard an appeal from a decision of Judge Myers in a parenting case.

Final parenting orders were made in 2023. The contentious orders related to school enrolment. In 2024 the mother filed an application seeking to vary the school orders as she and the child had moved one hour away from the school ([2]).

The mother’s application was initially dismissed by a Registrar, but upon review, Judge Myers ordered that the mother’s application be referred back to a Registrar and progress towards trial ([3]).

Determining the case prior to Radecki [2024] FedCFamC1A 246, Judge Myers found that there had not been a significant change in circumstances but that s 65DAAA did not require one.

Aldridge J said (from [12]):

“[Section 65DAAA] is not directed to the making of final parenting orders, merely whether such orders should be reconsidered. No substantive rights are affected unless and until, upon any such reconsideration, either the same or different final orders are made. A decision under this section is merely a finding or a ruling on the way to such final orders. As such, it could be reversed at any time.

[13] The order does not require the parties to do or not to do anything. It neither creates new rights and obligations nor alters existing ones. The order is directed to the Court, but other judges could not be bound by its terms.

[14] I do not consider it to be a judgment from which an appeal lies.

[15] It would be otherwise if a substantive order had been made, such as an order dismissing the Initiating Application, although leave may be required.”

The appeal was dismissed as not being competent and neither party sought costs.

Applicants fail in seeking parenting orders for child born overseas pursuant to commercial surrogacy arrangement – Applicants referred to Director of Public Prosecutions as commercial surrogacy is a criminal offence in Queensland

In Lloyd & Compton [2025] FedCFamC1F 28 (28 January 2025), Carew J heard an application for parenting orders for a child born as a result of an overseas commercial surrogacy arrangement. The applicants were a married couple from Queensland. The child was born in Cyprus in 2024. The surrogate mother resided overseas and filed a submitting notice.

Carew J said (from [4]):

“Under ss 54 and 56 of the Surrogacy Act 2010 (Qld) ... it is a criminal offence punishable by up to three years imprisonment for persons usually resident in Queensland to enter into a commercial surrogacy arrangement outside Queensland. It is curious, to say the least, why the applicants have filed an application which will leave them … open to potential prosecution.

( … )

[48] In relation to children born under surrogacy arrangements, s 60HB of the Act applies …

[49] A prescribed law for the purposes of s 60HB of the Act is … one pursuant to s 22 of the Surrogacy Act. … An application for a parentage order cannot be made if the surrogacy arrangement is a commercial surrogacy arrangement… Accordingly, neither applicant is a parent within the meaning of s 60HB of the Act.

( … )

[55] While … it might be thought uncontroversial … that the applicants are persons concerned with the care, welfare and development of the child, it seems to me that before that fact can be established there would need to be evidence before the Court …

[56] In the absence of such evidence, I am not satisfied that the applicants are persons concerned with the care, welfare and development of the child pursuant to s 65C(c).

[57] The applicants do not have standing to bring an application for a parenting order.”

The documents filed in the proceedings were referred to the Director of Public Prosecutions as to whether the applicants should be prosecuted and also referred to the NSW Legal Services Commissioner to investigate whether the solicitor who filed affidavits on behalf of her clients had breached her obligation to provide competent legal services.

CHILDREN

Reversal of care – Mother so fixated in her belief that their biologically male child was a transgender girl, her primary care without gender affirming treatment for the child would be very difficult, if not impossible, in practice

In Re: Devin [2025] FedCFamC1F 211 (3 April 2025), Strum J heard competing parenting applications in respect of a 12 year old biologically male child (“Devin”) where each parent sought orders for sole decision-making and that the child live with them. Although no treatment orders were sought in relation to Devin’s gender identity, the responsibility for medical decisions and whether Devin should be administered Stage 1 puberty blocking medication were key issues in the case.

Strum J said (at [131]):

“In circumstances where, inter alia:

• Dr N did not undertake a comprehensive biopsychosocial assessment of the child … ; ( … )

• the mother … established the narrative that informed subsequent interactions by Dr N with the father … ;

• Dr N’s … concession that … the child’s view of gender identity may have been influenced by the mother; ( … )

• the mother … primed Dr N … reinforcing … the mother’s own view that the child is transgender and suffering from distress and dysphoria … ( … )

… I am not satisfied that the mother has proved … that the child is … gender incongruent or gender dysphoric… ”

His Honour concluded (from [353]):

“ … [G]iven the mother’s inability or unpreparedness to work collaboratively with the father … I consider it to be in the child’s best interests for the father to have sole parental responsibility for the child … ( … )

[354] … I find the mother so entrenched, convinced and fixated in her unwavering belief that the child is, beyond doubt in her mind, a transgender girl, that for her to primarily care for the child without following the gender affirming treatment pathway offered at CHGS would be very difficult, if not impossible, in practice.”

Orders were made for Devin to live with the father, for him to have sole decision-making responsibility and for Devin to spend time with the mother.

EVIDENCE

De facto husband convicted of giving false testimony in a federal judicial proceeding (a family law case) contrary to s 35 of the Crimes Act 1914 (Cth) –Sentenced to 18 months imprisonment (by way of a recognisance release order after serving six months of that term)

In DPP v Sackl [2025] VCC 402 (3 April 2025), Judge Todd in the County Court of Victoria heard a prosecution of a de facto husband for giving false testimony in property adjustment proceedings before the Federal Circuit Court of Australia (“FCCA”).

In the FCCA proceedings, it was found that the de facto husband did not make full or frank disclosure of his financial position, was in breach of orders requiring him to do so and that he had “deliberately falsified documents and given false evidence” ([12]). The matter was then referred to the Australian Federal Police for investigation ([13]).

Judge Todd said (from [33]):

“The administration of justice depends fundamentally on the parties to Court proceedings giving truthful evidence and introducing documentary evidence that is genuine.

[34] Providing false information in any form to a Court in a contested proceeding strikes at the heart of the administration of justice…

( … )

[39] While I accept … that these acts by you took place in the context of personal chaos, this was chaos largely authored by you.

[40] I find that you did what you did in an effort, naïve and wishful, to gain a financial advantage by diminishing the valuation of the asset pool and so to benefit personally.

( … )

[42] The creation of the false documents, the bank statement and the falsified email chain present before me … were created to avoid responsibility for the first false affidavit and make the offending that I must sentence you for more serious. Altering any document is a dangerous and dishonest thing to do…

( … )

[44] I find ultimately that your moral culpability in your offending is high, and your offending is both persistent and serious.”

Her Honour sentenced the accused to 18 months imprisonment by way of a recognisance release order after serving six months, in the amount of $2,000 and upon his undertaking to be of good behaviour for a period of three years ([82]-[83]).

PROPERTY

Lack of procedural fairness to superannuation trustee deprived the Court of power to make splitting order –Making the order conditional upon procedural fairness being given to the trustee did not cure the defect

In Jakobsson [2025] FedCFamC1A 47 (17 March 2025), Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, considered a case where a husband’s application to extend time to appeal final property orders had been dismissed by the appeal registrar.

Appealing the dismissal, the husband argued that the primary judge erred by making a default superannuation order where the trustee had not been given procedural fairness ([13]).

Austin J said (from [17]):

“The primary judge was evidently conscious that the default superannuation splitting order was being made without the superannuation trustee first having had procedural fairness in respect of it, but the imperative provisions of s 90XZD(1) of the Act thereby deprived his Honour of statutory power to make the splitting order…

[18] Crafting the splitting order to make its operation conditional upon the superannuation trustee being given subsequent notice of it did not cure the deficit of the lack of any anterior procedural fairness to the trustee. What could the trustee have done if he, she or it objected to the order? The matrimonial financial cause was already concluded, so the trustee could not revive the cause to agitate the objection...

[19] The only course properly open to the primary judge was a short adjournment of the trial so the husband’s superannuation trustee could be given advance notice of the proposed superannuation splitting order and thereby afforded the chance to object to it. Absent objection, the order could be lawfully made. In the face of some valid objection upon resumption of the trial, his Honour would have had to craft different orders to conclude the financial cause without resort to a superannuation splitting order.

[20] As the superannuation splitting order is an integral component of the property adjustment orders, the judgment of the primary judge appears vitiated. The wife could offer no rational explanation as to how the judgment could be defended.”

Court did not err by declining to deduct potential capital gains tax on investment properties – While appellant intended to sell within 3-5 years, he sought orders that he retain the properties and opposed orders for sale

In Marlin & Henson [2025] FedCFamC1A 71 (30 April 2025) the Full Court (Gill, Howard & Christie JJ) heard an appeal by a de facto husband from final orders made by Hogan J in a de facto property case.

Considering his argument in relation to the treatment of potential capital gains tax (“CGT”), the Full Court said (from [27]):

“Evidence was led at trial to establish potential … CGT liabilities in respect of the real property held by the appellant. The appellant then relied upon Rosati [1998] FamCA 38 (‘Rosati’ ); as support for the proposition that as the various properties had been acquired as investments it was then mandatory for the primary judge to take into account their corresponding potential CGT liabilities.

( … )

[30] … Accurately, the primary judge noted that the submissions for the appellant did not countenance the sale of property…

( … )

[37] …[T]he primary judge … was unable to accept the appellant’s assertions as to his intentions in respect of the property, both as to his proposed timeframe and as to his intention to liquidate the assets at all…

( … )

[39] … [It] should not be thought that Rosati operates as a code for dealing with potential CGT. Rather Rosati identifies that … there is a need to examine the circumstances of the particular case, including as to the prospects of realisation of the assets, the circumstances of the acquisition and the intentions of the parties. Rosati identifies that the greater the certainty and immediacy of a CGT liability, the greater the need to take it into account…

( … )

[43] The appellant failed to persuade the primary judge that the orders as sought by the respondent would result in the short to medium term crystallisation of CGT.”

The appeal was dismissed and directions made for the filing of written submissions as to costs.

PROPERTY

Business valuation – No error in changing one element of valuation without changing others – Jones v Dunkel inference inapplicable as there was no evidence from which an inference could be drawn

In O’Cleary & Vukasin [2025] FedCFamC1A 56 (3 April 2025) the Full Court (Aldridge, Howard and Christie JJ) heard an appeal from a decision of Campton J in relation to the valuation of a business.

At first instance, Campton J found that the business was worth $33,833,373 whereas the appellant said it was worth $39,433,373. The Court found that while the business was likely to renew its lease in 2025 at a higher rent, there was no evidence that the increased rental cost would be passed on to customers ([1]).

The Full Court said (from [17]):

“It is true … that the question raising the increased rent concerned just one integer of the many used to derive the value. There is, however, nothing objectionable about that course. Experts are frequently questioned by asking them to express opinions on assumptions that are put to them, which may or may not be established by the evidence. …

[18] Whether or not such an answer carries weight is a different matter. …

[19] It is also a different matter what weight is to be given to a valuation where just one element (such as rent) is changed… [20] … [O]pinions can be sought from experts raising matters subsequent to the valuation… Whether taking that matter into account leads to a valuation that carries weight is a matter for the court. … ( … )

[27] There is no doubt that an adverse inference may be drawn where a witness is not called (Jones v Dunkel [1959] HCA 8 … ) and where a witness who is called does not give evidence on particular subjects in chief (Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 … ( … )

[33] Here there is no evidence at all on the topic. There is nothing from which an inference can be drawn and the principle cannot apply. To use it to find that prices would increase or costs decrease is in fact to create evidence, which cannot be done.”

The appeal was dismissed and the appellant was ordered to pay the respondent’s fixed costs of $40,000.

Husband’s estate unable to pay wife’s entitlement in full – Majority of wealth held in family trust – Application by wife and adult children for joinder of trustee of family trust dismissed – Trustee was not a party to the order that created wife’s entitlement

In Filip [2025] FedCFamC1F 35 (30 January 2025), Carew J heard an application for joinder in proceedings where property orders were made by consent between a husband and wife and their adult children in 2022.

The husband died unexpectedly in 2023 but had not discharged his obligation to pay the wife and two children pursuant to the 2022 orders.

The wife and two children sought to recover the unpaid amounts from D Pty Ltd (a trustee for the Filip Family Trust which was one of the entities forming the E Group). The trustee resisted the application for joinder. The wife sought enforcement and orders for variation pursuant to s 79A ([22]).

Carew J said (from [52]):

“These proceedings raise an interesting conundrum. At first blush it would seem inconceivable that the wife and [the children] could not recoup that which they are owed pursuant to the 2022 property order, but … [t]here must be a principled legal basis … identified in the pleadings. …

( … )

[54] As to the claim for relief pursuant to … ss 79A(1)(b) or (c) of the Act [the Court must be satisfied that] … the pleadings identify a factual and legal basis for a variation or a setting aside … so as to … make the trustee or the E Group liable for the payments due to the wife and [the children] … when neither the trustee nor the E Group were parties to the 2022 property order…

( … )

[57] … [I]t is not in dispute that a new trustee is bound by the obligations of the old trustee but the distinction in this case is that the husband was not the trustee. If it is to be contended that s 90AG of the Act has some broader application … the pleadings would need to articulate the factual and legal contentions.”

Her Honour concluded (from [60]):

“The wife and [the children] have failed to establish … that the trustee is a necessary party to the proceedings. …

[61] I propose to dismiss the application to join the trustee …”

AUTHOR 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.