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Special Law Week Edition printpost approved PP299436/00088

Supporting ACT Wildlife

Law Week 2020 The Law Society was disappointed to have to cancel Law Week due to the COVID-19 emergency.

Law Week is an annual event held in May across Australia, which seeks to promote public understanding of the law and its role in society. Each year in Canberra the Law Society and its partners run a range of free lectures, public pro bono events, educational seminars, and collegiate functions. These events engage the legal community and the public generally, celebrating local law and lawyers, and educating the public about the role we play in seeking justice and upholding the rule of law. Law Week also raises donations every year for a local Canberra Charity. In past years, we’ve supported such charities as the Domestic Violence Crisis Service, ADACAS, the Australian Indigenous Leadership Centre, Food Rescue Service, Pegasus Riding for the Disabled, OzHarvest Canberra, and Arthritis ACT. Unfortunately, due to the Coronavirus (COVID-19) situation, the ACT Law Society had to cancel Law Week this year.

We had a great line up of events planned for 2020, and most of those events are unlikely to be rescheduled. In light of this cancellation, we asked our event organisers and other supporters if, instead of running an event, they’d like to participate in a special ‘Electronic Law Week’ edition of our magazine. This edition of Ethos represents the Law Week that might have been. We hope that you find these articles useful and informative. If you like what you see here, please consider making a donation to our Law Week charity, ACT Wildlife. From all of us at the ACT Law Society: Stay safe and keep washing your hands! Chris Donohue PRESIDENT, ACT LAW SOCIETY

ACT Wildlife is a volunteer not-for-profit organisation that cares and rehabilitates injured, sick and orphaned native wildlife for return to the wild. We are Canberra’s only wildlife rescue service, and we rely on donations to provide housing, food, transport, and medicine to the hundreds of native animals that come through our door every year. Your tax deductable donation will go directly to help orphaned, injured, and sick wildlife.


LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY Level 4, 1 Farrell Place, Canberra City ACT 2601 PO Box 1562, Canberra ACT 2601 | DX 5623 Canberra Phone (02) 6274 0300 |

EXECUTIVE President Vice Presidents Secretary Treasurer Council-appointed Member Immediate Past President

Chris Donohue Elizabeth Carroll Peter Cain George Marques Sama Kahn Mark Tigwell Sarah Avery



FEATURES Law Week seminar: Updates to the Residential Tenancies Act 1997 (ACT) since November 2019


Battling natural events: ACT Wildlife on responding to the bushfires, the hail storm, and heat wave


Law Week seminar: Protecting the environment and fostering financial fairness — recovering from the 19/20 bushfires


Community links: Why corporate social responsibility is good for business


Law Week seminar: International law and cruise ships — Sailing into stormy waters


Law Week seminar: What can lawyers do to protect our native wildlife?


Court nostalgia: The ghosts around the atrium


COUNCILLORS Radmila Andric Farzana Choudhury Alan Hill Sage Leslie Mark Tigwell

Rahul Bedi Timothy Dingwall Gavin Lee Susan Platis Angus Tye

STAFF Chief Executive Officer Professional Standards Manager Finance & Business Services Manager Executive Secretary Complaints Committee Secretary Research Officer Professional Development Officer Communications Officer Committee Administrator Bookkeeper Receptionist & LAB Administrator Administration Support

Dianne O’Hara Rob Reis Lea McLean Nicole Crossley Linda Mackay Tien Pham Carissa Webster Nicole Karman Tanya Holt Kathleen Lui Robyn Guilfoyle Janette Graham

ETHOS Cover: “Pedestrians in blur”, by verkeorg, licensed under CC BY 2.0. Ethos is published quarterly. The Society welcomes original articles for publication in Ethos. Unless stated otherwise, authors agree to the publication of their work online via the RMIT Informit elibrary service. To advertise in Ethos, or to offer an article for publication, please contact the Communications Officer at nicole. © 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, the Editor or the printers, 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.


Law Week seminar: Updates to the Residential Tenancies Act 1997 (ACT) since November 2019

Legal Aid ACT presents a timely update on changes to tenants’ rights in the ACT.

COVID-19 response On 22 April 2020, the ACT Government made the Residential Tenancies (COVID-19 Emergency Response) Declaration 2020 (‘the Declaration’), pursuant to section 156 of the Residential Tenancies Act 1997, to assist impacted households during the COVID-19 pandemic. The Declaration is set to run for three months from notification, but may be extended by the ACT Government for another three months (‘the Moratorium Period’). The Declaration primarily affects ‘Impacted Households’. An ‘Impacted Household’ is one that: • Has at least one rent-paying member who has had a reduction or stoppage in income related to the COVID-19 pandemic, and as a result the household’s gross weekly income has reduced by at least 25%; and/or


• Has at least one member who became eligible for a JobSeeker or JobKeeper payment from the Commonwealth on or after 20 March 2020. During the Moratorium Period, a lessor is prohibited from issuing a tenant in an Impacted Household a Notice to Vacate for their failure to pay rent. The ACT Civil and Administrative Tribunal (ACAT) is likewise prohibited from making a termination and possession order for failure to pay rent if the tenant can demonstrate they are in an Impacted Household. This prohibition applies even if the tenant’s failure to pay rent occurred prior to the Moratorium Period. During the Moratorium Period, lessors also have greatly restricted physical access rights to their tenanted properties. Prior to the Declaration, they were able to physically access the premises to undertake routine inspections and conduct in-person inspections for

prospective purchasers and tenants. Now, during the Moratorium Period, they are only allowed to physically access a tenanted premises to undertake urgent repairs, with the tenant’s consent or in accordance with an ACAT order. However, tenants now have an increased obligation under the Declaration to reasonably assist lessors in carrying out all other lawful inspections virtually. While the Declaration has put a stop to evictions during the Moratorium Period, tenants are still obliged to pay rent. Unless tenants come to some type of agreement for a genuine rental reduction with their lessor, any rent not paid under their tenancy agreement will fall into arrears and constitute a debt to the lessor. On 7 May 2020, the ACT Government announced it would fund a service to mediate disputes between tenants and lessors to assist them in negotiating rent reduction agreements. The Conflict Resolution Service is


identified as the preferred provider. At time of writing, full details of this service were not available.

Other changes since November 2019

To further assist tenants and lessors negotiate temporary rent reduction agreements, whether through assisted mediation with the Conflict Resolution Service or otherwise, the Declaration created a ‘COVID-19 temporary rent reduction clause’ which can, by mutual agreement, be amended into already existing residential tenancy agreements. Any rent reduction in accordance with this clause will not be considered a debt against the tenant.

A number of other more permanent changes have been made to the Residential Tenancies Act 1997 (‘the RTA’) over the past few months. These include changes around how much rent a lessor can request in advance, how much notice they must give when they intend to move back into the property and when they are allowed to refuse consent for pets. Some of these amendments were made to the Standard Tenancy Terms (‘STT’) which apply to all residential tenancy agreements by law.

While lessors are under no obligation to enter into good-faith rent reduction negotiations with their tenants, the ACT Government has implemented a land tax rebate scheme as an enticement. Under the scheme, if a lessor reduces the rent owed under a residential tenancy agreement by at least 25%, they can receive up to half of that reduction back by way of land tax rebates. The maximum rebate allowed is $2,600 over 6 months, or about $100 a week. For example, if a tenant currently pays $400 a week under a residential tenancy agreement and the lessor agrees to reduce the rent by $200 a week, the lessor can claim $100 a week worth of land tax rebates. The Declaration also prohibits lessors from listing persons in Impacted Households on residential tenancy ‘blacklists’ for a failure to pay rent during the Moratorium Period. Lessors are also prohibited from increasing the rent on Impacted Households during the Moratorium Period, and the timeframe in which a lessor is required to undertake non-urgent repairs has changed from 4 weeks to a “reasonable period as agreed with the tenant”.

While the STT apply to all residential tenancy agreements, the RTA was recently amended to clarify which variation of the STT apply to which agreements. As the RTA reads today, if the relevant tenancy agreement is for a fixed term, then the STT that apply are those as in force on the day the agreement was entered into. If the tenancy agreement is periodic, then the STT that apply are the ones that are in force from time to time. For example, on 6 April 2020, section 20 of the Residential Tenancies Amendment Act 2020 commenced and amended clause 28 of the STT, which governs the maximum amount of rent a lessor can require in advance. Prior to this commencement, a lessor could require up to 4 weeks rent in advance; following commencement, this changed to only 2 weeks unless otherwise agreed by the tenant. The practical impact is that tenants on periodic tenancies can now request that they switch to only paying 2 weeks rent in advance if they are paying more than that. For tenants on fixed term tenancies, if

they entered into the agreement following commencement, then the 2 week limit would apply. If their agreement pre-dates commencement, the 4 week limit still applies; but if their fixed term tenancy rolls over into a periodic tenancy, then the 2 week limit would apply to the new periodic tenancy. Another example is that on 5 May 2020 several more sections of the Residential Tenancies Amendment Act 2020 were commenced. These commencements both amended a clause in the STT but also added new sections to the RTA itself. Clause 96 of the STT was amended to increase the minimum notice period a lessor is required to give a tenant in a periodic tenancy from 4 weeks to 8 weeks if they, an immediate relative or an interested person genuinely intend to live in the premises. As this was an amendment to the STT that only applies to periodic tenancies, it is irrelevant when any preceding fixed term tenancy agreement was entered into as the STT which applies to periodic tenancies is whichever STT is in force from time to time. The other 5 May 2020 amendments to the RTA allow a tenant to, upon giving proper notice, unilaterally terminate a tenancy agreement, whether periodic or fixed term, if they accept accommodation in a residential care facility or a social housing dwelling. The 5 May 2020 amendments also prevent ACAT from awarding compensation to a lessor if a tenant terminates a lease early due to accepting accommodation in a residential care facility or a social housing dwelling. As these amendments are made to the RTA itself and not the STT, they apply to all tenancy agreements in the ACT.



Tenancy Advice Service Legal Aid ACT provides legal assistance to members of our community and operates the ACT’s Tenancy Advice Service. The mission of the Tenancy Advice Service is to assist and empower residential tenants and occupants of the ACT to build long-term independence and housing security by providing a wide range of services. The Tenancy Advice Service operates an advice line at 1300 402 512, and currently conducts Facebook Live sessions to keep the community informed about the ever changing tenancy laws in the ACT. Follow the Legal Aid ACT Facebook page to stay informed of upcoming tenancy information sessions.


Pets On 1 November 2019, the majority of the Residential Tenancies Amendment Act 2019 commenced and made some key amendments to the RTA. Of importance to many tenants wanting the companionship of a pet, clauses 74A and 74B were added to the STT and sections 71AE and 71AF were amended into the RTA itself. Most significantly, the amendments to the STT provide tenants an entitlement to keep an animal on their premises. Note that because this is an amendment to the STT, it


only applies to periodic tenancies and fixed term tenancies entered into on or after 1 November 2019. Despite this new entitlement, the amendments to the RTA provide that lessors are still allowed to require a tenant seek consent before keeping an animal on their premises, but they must advertise that consent is required for animals when listing the premises for rent. If they give consent, they are allowed to place reasonable conditions on the consent, but only in regards to how many animals can be kept on the premises and what additional cleaning and maintenance obligations the tenant

must undertake as a result. Tenants must remember that they are still responsible for all additional repairs and maintenance related to damage caused by a pet to the premises. While a lessor can still refuse consent, they must seek ACAT’s permission before doing so. In determining whether to grant permission, ACAT will look to see whether the premises are suitable for a pet, if the proposed pet could cause unreasonable damage, if public health would be endangered, if allowing a pet would result in financial hardship to the lessor and if keeping the pet would be contrary to ACT law.


Modifications For tenants wanting to engage in some home renovations, they should consult clause 67 of the STT and sections 71AA, 71AB and 71AC of the Act before doing so. The STT now provides that tenants must not make any changes to the property without the lessor’s written consent. If the lessor consents, he or she can place reasonable conditions on that consent, including a requirement that the tenant use a suitably qualified tradesperson to both undertake the modification as well as restore it at the end of the tenancy. Tenants should remember that even if their lessor consents to a modification, they are still required at the end of the tenancy to restore the premises to substantially the same condition as it was in at the commencement of the tenancy, fair wear and tear excepted. Of course, if the lessor is impressed with the modification, especially if it improves the value of the property, they can always agree to keep the modification in place even after the tenancy ends. The amendments to the RTA provide further guidance on when a lessor can refuse consent outright for proposed modifications. Two new terms are now key to this understanding: ‘minor modifications’ and ‘special modifications’. Minor modifications are those that can be removed or undone and include putting up picture hooks, installing a bathroom shelf or affixing blinds to a window. Special modifications consist of minor modifications, as well as modifications for safety, security, disability, energy efficiency or telecommunications access.

If a tenant requests to undertake a special or minor modification, the lessor can only refuse consent with ACAT’s permission. When deciding whether to grant permission or impose conditions on consent, ACAT will look to see whether the lessor would suffer significant hardship if the modification is made, if a special modification requested would be contrary to law, if a special modification requested would likely require modifications to other residential properties or common areas (e.g. in apartment buildings), or whether a special modification requested would result in additional costs for the lessor. For any modification request that does not classify as a minor or special modification, the lessor does not require ACAT’s permission to refuse consent, but they must not withhold consent unreasonably.

Break lease fees and excessive rent increases Section 8 of the RTA was also amended in November 2019 to update the ‘Break Lease Clause’. Lessors and tenants entering into residential tenancy agreements can include this clause in their agreements without having to seek ACAT’s permission which is otherwise required for a term inconsistent with the STT. The Break Lease Clause caps the amount of rent a tenant must pay if they break their lease. For fixed term tenancies where the fixed term is 3 years or less, the current clause provides for a maximum break lease fee of 6 weeks rent if less than half the fixed term has expired, or 4 weeks rent if in the latter half of the tenancy. Both of these amounts are still

reduced if upon the tenant vacating the premises the lessor is able to locate and accept rent from a new tenant within the relevant timeframe. Lessors should remember that they are always under a general duty to mitigate their damages when a tenant breaches a tenancy agreement. Finally, the laws around rent increases have been slightly amended. Under the new section 64B of the RTA, a rent increase will be deemed excessive if it exceeds the threshold set under the newly amended Residential Tenancies Regulation 1998. This threshold is otherwise known as ‘the prescribed amount’. The prescribed amount is currently 110% of the percentage increase in the rents component of the housing group of the Consumer Price Index for Canberra as published by the Australian Bureau of Statistics. Any increase in rent beyond the prescribed amount is considered ‘excessive’, and a lessor may only levy an excessive rent increase if the tenancy agreement expressly permits the lessor to increase the rent by that amount, if the lessor and tenant agree to the increase or if the lessor obtains ACAT approval. Brice Hamack, Jodie Campbell, and Joyce Yang LEGAL AID ACT Brice is a solicitor in Legal Aid’s General Practice. He practices in civil matters across a variety of areas, including tenancy, employment and family violence. He has a strong interest in raising awareness about tenants’ rights, particularly during COVID-19. Jodie is a family violence solicitor in Legal Aid’s General Practice who currently works in Community Legal Education. She is committed to ensuring that our community is informed about their legal rights and obligations and connected to appropriate legal services. Joyce is Legal Aid’s Community Legal Education paralegal, and is currently finishing her final year of an Arts/Law degree at the Australian National University.



Battling natural events ACT Wildlife talk about the challenges of responding to the multiple natural events that have affected Australia’s wildlife populations in recent times.

ACT Wildlife is a volunteer notfor-profit organisation that cares for and rehabilitates injured, sick and orphaned native wildlife and prepares them for their return to the wild. As Canberra’s only wildlife service, we rely on public donations to provide adequate community service and to equip our carers with specialist training to care for each individual species. The large number of animals brought into care are mainly related to the interface between the natural environment and human spaces. This includes orphaned wallaby and wombat joeys found in the pouch of their mother after hit by vehicles, birds flying into buildings resulting in broken wings or brain damage, flying foxes caught in fruit netting, brushtail possums poisoned from eating snail pellets and rat bait, and so on. ACT Wildlife is run by the community, for the community. We


are funded primarily by membership, donations, and fundraising events. If you are interested in volunteering with ACT Wildlife, we would love to hear from you. Visit our website to see how you can be involved.

Offer legal expertise At times, ACT Wildlife requires clarity on legal matters relating to our work. If you are interested in helping us pro bono, please contact us on and let us know you are a member of the ACT Law Society and saw the request to help.

Natural events

record, with significant heat waves in December and January. Wildlife populations fluctuate as they adapt to Australia’s extreme climate, and records indicate our Canberra bird numbers are in decline. The bushfires between November and February were perhaps the most visible event to impact our wildlife on a national scale. In our own backyard, 90% of Namadgi National Park was burnt. Unfortunately, with no safe access to the burning and burnt areas, no animals were rescued from Namadgi for care by ACT Wildlife.

In the last 18 months we have faced multiple natural events that have affected Australia’s wildlife populations.

Between 20 December 2019 and 3 January 2020, Canberra had the worst air quality of all the world’s major cities, trumping those typically known for having severe air pollution such as Delhi in India and Chengdu in China.

The Bureau of Meteorology recorded 2019 as the hottest and driest year on

It is still unknown how the smoke pollution has affected our wildlife.



The hailstorm

Flying foxes

The most devastating impact on our local wildlife occurred on 20 January 2020, when Canberra was struck by a severe hailstorm around midday.

There is a colony of flying foxes located in Commonwealth Park, where the hail storm was particularly severe. Flying foxes are generally less active during the day, so the colony was caught unaware.

The storm was concentrated in the Belconnen suburbs, the city, and the inner south. Wind gusts of up to 116km/h were recorded at Canberra airport, with reports of hail stones up to 4-5cm. The storm only brought about 2.6mm of rain. Although the hailstorm event was very short, it resulted in a large number of injured birds and flying foxes requiring care. Following the hailstorm, ACT Wildlife took a total of 101 birds into care, comprising 20 different species. These birds had various injuries, and of the 60 birds released, half of these were in care for less than 20 days. This represented just a portion of the total birds killed or injured during the event.

The result was a devastating 600plus flying foxes killed and maimed on the day.1 Of those severely injured, 100 flying foxes were taken into care by ACT Wildlife. All others either died or were euthanased on site. Of those taken in, less than half were released back to the wild after being in care for 1-3 months. 52 days after the hail storm, a flying fox was examined by a veterinarian after being rescued from fruit netting entanglement.2 This flying fox had a broken right tibia, partially healed with extensive calcification,

a compound fracture in the left wing, an ulcerated eye, and was underweight. The flying fox was most likely a survivor of the hail storm. The last recorded flying fox brought into care as a result of wounds sustained in the hail storm was 62 days after the event. It was later successfully released. A fortnight after the hailstorm event, the flying fox colony experienced two days of temperatures known to induce heat stress in that species.3 Luckily, the effects of the heatwave on the colony was not dire, thanks to an old sprinkler system situated directly underneath the colony. The sprinklers were turned on, providing relief to the already stressed flying foxes. The hail storm and the heat wave were particularly devastating to the colony because the events occurred



Canberra’s Flying Foxes The grey-headed flying fox, Pteropus poliocephalus, is nationally listed as vulnerable under the Environment Protection and Biodiversity Conservation Act 1999. Commonwealth Park is home to a colony of this species, having established a camp at the site since 2003 with numbers known to vary each year. This area is managed by the National Capital Authority (NCA). Flying foxes continue to visit Canberra each year from October to April to feast on the bountiful fruit grown in our urban backyards. Unfortunately, ACT Wildlife vaccinated volunteers regularly rescue flying foxes from incorrectly erected fruit netting and barbed wire located near fruit trees. Both cause injuries to their thumbs, wings, and feet. To reduce the likelihood of entanglement in fruit netting simply pull the net tightly — this may involve pegging to the ground — and ensure the fruit netting squares are small enough that your little finger can’t push through. Barbed wire fences can also be replaced with plain wire, which will become wildlife friendly for all species. For more information visit the wildlife friendly backyard fruit netting webpage.

Fast Facts • Protected species under the Environment Protection and Biodiversity Conservation Act 1999 • Live mostly on the eastern coastal strip • Nocturnal lifestyle and travel long distance each night to find food • Natural diet is pollen and nectar from native trees including eucalypt and Melaleuca species, and fruit (fruit is a good substitute when native foods are scarce, particularly during drought) • Similar to bees and birds, flying foxes pollinate through feeding habits • Population is decreasing due to urbanisation, habitat loss, and extreme heat events, which is forcing flying foxes to move further west • Have a 60% – 75% survival rate from injuries sustained from fruit netting and barb wire entanglement • A small proportion carry Lyssavirus, which is fatal to humans • Lyssavirus is only passed via saliva and blood (a bite or a scratch) • Flying fox carers are vaccinated for rabies, an organism closely related to Lyssavirus




at the time of year when many females have dependent young. Many juvenile flying foxes were among those brought into care, abandoned by mothers too wounded or stressed to care for them. ACT Wildlife carers took into their care an unprecedented number of flying foxes during this time. Many of our carers were already caring for other wildlife species, often at their own cost.

Hail storm response The hailstorm event was managed in a coordinated approach by the National Capital Authority (NCA), and ACT Wildlife is enormously grateful for the care, assistance and cooperation they provided. We would also like to extend our heartfelt thanks to: • Citywide, who removed deceased animals and notified us of the injured; • the RSPCA, who provided towels and barbiturates on the day of the hailstorm; • a veterinarian from the ACT Government Biosecurity and two Animal Referral Hospital student vets, who triaged each flying fox on site and humanely euthanased as needed; • the Parkway Veterinary Centre and Animal Referral Hospital, for their time to humanely euthanase or provide the necessary medications to rehabilitate the injured; and

• the many dedicated ACT Wildlife volunteers who helped gather data, attend to, and transport the many wounded flying foxes. Our gratitude also extends to the concerned members of the public who alerted us to compromised individuals, and to the many people who provided food and financial donations. Heather Peachey and Sarah James ACT WILDLIFE

Endnotes & references 1. Major, F., ACT Wildlife (2020), Post-Hail Report: Injuries and deaths of Grey-headed Flying-foxes, Pteropus poliocephalus in Commonwealth Park, ACT resulting from a hailstorm event occurring on 20th January (unpublished). 2. ibid. 3. ibid. Pennay M., Australasian Bat Society (2013), Report on the Grey-headed flying fox camp at Regatta Point, Commonwealth Park ACT 2013. Lucy Bladen, “Canberra hail storm: Wild weather lashes ACT causing wide-ranging damage”, The Land, 20 January 2020, at more-than-a-thousand-calls-for-help-as-storms-hugehailstones-lash-canberra/.

ACT Wildlife is a volunteer not-for-profit organisation that cares and rehabilitates injured, sick and orphaned native wildlife for return to the wild. We are Canberra’s only wildlife rescue service, and we rely on donations to provide housing, food, transport, and medicine to the hundreds of native animals that come through our door every year. Your tax deductible donation will go directly to help orphaned, injured, and sick wildlife in our care.


Jessica Taulaga, “The Canberra suburbs with the worst air quality and how to deal with indoor smoke”, AllHomes, 9 January 2020, at homeowners-opt-to-leave-than-withstand-bushfire-smokein-canberra-920153/. Bureau of Meteorology, “Canberra, Australian Capital Territory February 2020 Daily Weather Observations”, at IDCJDW2801.202002.shtml. Bureau of Meteorology, “Annual Climate Statement 2019”, at aus/2019/. Fennell, P 2019, ‘Annual Bird Report: 1 July 2018 to 30 June 2019’, Canberra Bird Notes, vol. 45, No.1, at http:// ACT Wildlife, “Annual Report 2019”, at http://actwildlife. net/annual-reports.html.



Law Week seminar:

Protecting the environment and fostering financial fairness ­— recovering from the 19/20 bushfires Care Inc and the Consumer Law Centre, and the Environmental Defenders Office, explore some of the key legal issues raised in relation to economic and environmental recovery from such events.

Last summer saw Canberra clouded in toxic smoke from fires all around us. Across our local region the bushfires took lives, property, and our treasured bush wildlife and landscape. Canberra was then also hit by a freak hailstorm, damaging property across the territory. Australia’s worst bushfire season on record may seem like a distant memory as we tackle the terrible devastation of COVID-19, but the economic, personal and environmental impact of the 19/20 bushfire season will be felt by many for months, if not years to come.


Recovery from these events has been further impacted by the COVID-19 pandemic, which is placing greater economic strain on communities impacted by the fires (and preceding drought),1 and hampering efforts to study and support environmental recovery.2 These events have raised a range of legal issues for individuals, business, government and communities to grapple with, both in the short term and into the future. Not least, the fires gave urgency to a national conversation about how natural disasters, and the impact of climate change, may force changes to the way in which many of our systems operate, from financial services

to insurance to planning and land management. How might these bigger, systemic issues, play out for people on the ground, living the impact and recovery from these disasters, and what assistance is available to people and communities navigating these issues? This article explores some key legal issues raised, for individuals and communities, in relation to economic and environmental recovery. Care Inc and the Consumer Law Centre, and the Environmental Defenders Office, both provide free legal advice and assistance in areas relevant to these issues.


After the bushfires Supporting economic recovery and financial fairness Care Inc has been assisting people impacted by financial hardship for over 35 years. Care is the largest provider of financial counselling services in the ACT, and operates the Consumer Law Centre, a specialist community legal centre providing legal advice and representation in relation to consumer and general fair trading, credit and debt, consumer credit, insurance and bankruptcy matters. Following a natural disaster, individuals can be faced with significant financial and legal challenges which they may never have encountered before – being unable to pay bills, grappling with no, or insufficient insurance, and navigating government and other support systems. Financial counsellors and consumer lawyers play a key role in assisting people in financial hardship to understand their options and exercise their rights in the face of these complex issues.

Insurance Like many natural disasters before it, the 19/20 bushfires have drawn our attention to the insurance sector, and the challenges many face navigating insurance claims following natural disasters. Underinsurance, delays in claims processing and repairs, disputes over settlements and the emergence of predatory insurance claim management service providers are just some of the issues faced in disaster affected communities. Recovery from the bushfires will be particularly challenging for those who suffered significant property damage and are underinsured or uninsured.

Being underinsured is something many people discover only upon making a claim. Following an event like the bushfires, costs for repairs and rebuilding can be driven up by increased building and planning regulation and high demand for building services, contributing to the risk of underinsurance. Properties insured for lower sums than they are worth (whether due to an inadvertent underestimation of the property’s value, or where people have opted for lower sums to reduce premiums) can compound these issues. Complex insurance policies, with a range of exclusions, can also lead to people finding themselves under or uninsured despite their best intentions. Into the future, communities more regularly affected by severe weather events or natural disasters, and the increased likelihood of these generally due to climate change, may lead to increased premiums. This in turn may increase the numbers of people who are uninsured or underinsured. Obliging insurance providers to increase transparency around policy inclusions and the methodology for calculating the insured amounts, and greater consistency in key terms and definitions across the insurance sector, may help to reduce these risks.3 At a systemic level, greater government scrutiny of the costs of insurance, and the development of a comprehensive response to insurance and the impact of climate change in Australia will help protect vulnerable people and communities in the future.4 Support and assistance are also required more broadly for people navigating the claims process.

Delays and poor conduct in the claims handling process came into focus during the Royal Commission into Misconduct in the Banking Superannuation and Financial Services Industry (‘the Royal Commission’). Along with other important recommendations to improve practice in the insurance sector, the Royal Commission recommended that ASIC’s regulatory oversight be extended to claims handling.5 The Federal Government released exposure draft legislation in 2019 on this issue, but legislation has not yet been introduced to Parliament.6 Implementing the Royal Commission’s recommendations, and ensuring adequate and expert legal advice and assistance is available to those in bushfire affected communities will be vital to supporting their recovery. Protection from predatory insurance claim management service providers is also important. Often adopting an unsolicited (i.e. door-to-door) sales approach, and targeting vulnerable consumers, these providers usually charge significant fees to lodge and progress an insurance claim on a claimant’s behalf. These businesses often push for a cash settlement in order to obtain a percentage of the final amount received, even where this is not in the best interests of the claimant. Contracts with these providers can involve hefty fees, even despite poor quality service or where the claimant decides not to continue to use the service. Whilst these services are largely unregulated, ASIC has warned natural disaster victims against using them.7



Financial hardship People affected by natural disasters like the recent bushfires can face significant financial stress — particularly following the loss of family members, homes, or businesses. Employment can also be significantly impacted. These situations may lead to people falling behind on bills and payments including rent, mortgages and utilities, and leave them struggling to meet basic necessities. Those most in need may also be targeted by predatory lenders, including payday loans and consumer leases. These lenders usually offer high cost, short-term loans, and target those unable to access more responsible lending options. They can often lead people to finding themselves in a ‘debt-trap’. Greater regulation of these kind of financial services is needed to protect people in disaster-affected areas, and vulnerable consumers generally. The National Consumer Credit Protection Amendment (Small Amount Credit Contract and Consumer Lease Reforms) Bill 2019, currently before the Federal Parliament, would provide urgently needed protections in this regard. Financial counsellors are vital to supporting people in financial distress, particularly those most vulnerable, to respond to and recover from financial hardship. Financial counselling is a combination of counselling, information about financial matters (including options for dealing with debts), advocacy or negotiation, and referral to other services. At Care Inc, consumer lawyers and financial counsellors work closely together to support clients dealing


with financial hardship. In the ACT Care Inc operates the National Debt Helpline, which is free and accessible to anyone seeking support in relation to financial stress. Care Inc also operates the free Small Business Bushfire Financial Counselling Support Line for small business operators affected by the fires.

of land, including extensive areas in the Namadgi National Park.9 The Environment, Planning and Sustainable Development Directorate has identified large areas of native plant and animal habitat, including for many threatened species listed under the Nature Conservation Act 2014 (ACT), which has been severely impacted by the bushfires.10

Empowering communities

Options available under planning and environment laws to address bushfire impacts

Using the law to protect our environment The Environmental Defenders Office (EDO) is a community legal centre specialising in public interest environmental law. The EDO helps the community solve environmental issues by providing legal and scientific advice, community legal education and proposals for better laws. Our lawyers work with clients across the country, and as an office, we have been inundated with calls from clients concerned about the impact of the recent bushfires on wildlife. The catastrophic 19/20 bushfire season was the most destructive bushfire season on record. Over 17 million hectares burned across New South Wales, Victoria, Queensland, ACT, Western Australia and South Australia.8 The Federal Department of Agriculture, Water and the Environment’s preliminary analysis indicates that the bushfires burned anywhere from 10% to over 80% of the habitat for 327 threatened and migratory species listed under national environmental law (Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act)). In the ACT, the Orroral Valley fire burnt approximately 87,923 hectares

The Federal Minister for the Environment has a number of powers under the EPBC Act to ensure the protection of threatened species and ecological communities that have been affected by the 19/20 bushfires. An important first step is the temporary suspension of decisionmaking processes relating to proposed developments that are likely to impact species that have also been heavily affected by the bushfires. Where relevant, similar processes should be implemented under ACT planning law. A temporary suspension would allow time for a full assessment of the impacts of the bushfires to be conducted, and to determine whether the bushfires have resulted in any material change in the impacts of proposed developments on affected threatened species or communities. The catastrophic impacts of the bushfires may also have significantly altered the magnitude of the impacts of specific developments for which an approval is already in place. To ensure the ongoing protection of threatened species and communities, the Federal Minister may vary or suspend existing approvals to allow for appropriate protection measures



Community Legal Centres Care Inc and the Consumer Law Centre provides assistance to people experiencing financial stress, including financial counselling, legal advice on consumer and credit and debt issues and access to microfinance loans. Call the National Debt Helpline on 1800 007 007, the Consumer Law Centre on 02 6143 0044. They also operate a Small Business Bushfire Financial Counselling Support Line for small business operators affected by the fires on 1800 413 828. Environmental Defenders Office (EDO) provides free and confidential initial legal advice in relation to environment and planning law. The EDO’s Canberra office is offering services in an online format or by phone during the COVID-19 crisis. People and community groups can contact the EDO’s Canberra office at or by phone on 0491 243 638 during business hours. Detailed fact sheets about planning and environment law in the ACT can be found at Women’s Legal Centre provides specialist advice in relation to family law, care and protection, employment and discrimination issues, including issues related to COVID-19. The Centre’s Aboriginal Women’s Program, Mulleun Mura, is also still providing culturally safe support to Aboriginal and Torres Strait Islander women. WLC’s legal Advice and Intake Line is now open 9-5, Monday-Friday, on 02 6257 4377. Canberra Community Law (CCL) provides legal advice, assistance and representation to people in the ACT on low incomes for matters relating to tenancy, public housing, social security and disability discrimination law, including issues related to COVID-19. CCL is also still providing services to Aboriginal and Torres Strait Islander communities through the Dhurrawang Aboriginal Human Rights Program and through the Street Law program. For assistance call 02 6218 7900. ANU Students Association Legal Service provides free and confidential legal advice primarily to undergraduate ANU students and ANU student clubs and societies. The service is continuing to offer an uninterrupted service online. Contact Postgraduate and Research Student’s Association (PARSA) Legal provides free and confidential legal and migration advice to postgraduate ANU students. PARSA continue to offer uninterrupted service to students online during the COVID-19 crisis. Contact or parsa.assistance@



to be implemented. In extreme cases, for example where certain developments now pose a risk of extinction, the Minister may even revoke existing approvals. In the ACT, bushfire planning is guided by the Planning and Land Authority. In carrying out its functions, the Authority must give effect to sustainable development. In light of the 19/20 bushfires, this should involve the review of the Territory Plan to ensure that land use zoning is appropriate given the increasing risks posed by bushfires as our climate changes.

Recognising and responding to the link between climate change and bushfires Australia’s climate has warmed by just over one degree since 1910 and the best available science tells us that average temperatures are projected to rise further.11 Extreme heat days, longer dry spells, and harsher fire weather will increasingly become the norm, although the severity of impacts will be less if greenhouse gas emissions can be reduced.12 Future preparation and planning for bushfires must acknowledge and prepare for the predicted impacts of climate change. The Federal Government must adopt a wholeof-government approach to climate change by enacting a new national Climate Change Act that addresses both climate change mitigation (through mandatory greenhouse gas emissions reduction targets) and adaptation. The ACT has been a leader in climate change policy in Australia, committing to ambitious greenhouse gas emissions reduction targets. However, the ACT planning law contains no direct reference to


climate change, or to the need to mitigate or adapt to the effects of climate change. Tackling climate change requires an integrated and enforceable whole-ofgovernment approach. Accordingly, climate change mitigation and adaptation should be mandatory considerations in all planning and development processes in the ACT.

Community Legal Centres Supporting communities through disasters It will take months, if not years, for the ACT and local regions to recover from these bushfires. Community legal centres, like the EDO and Consumer Law Centre, will continue to play an important role in supporting our community to recover, particularly those most vulnerable. The COVID-19 pandemic will only act to put further pressure on the recovery process for fire affected communities and environments. In addition to our work around the region’s bushfire response, ACT’s community legal centres offer free legal advice and support on a range of issues relevant to COVID-19. Natalie Vella SENIOR SOLICITOR, ENVIRONMENTAL DEFENDERS OFFICE Meghan Malone ANU STUDENT AND VOLUNTEER, CONSUMER LAW CENTRE Angela Lauman PRINCIPAL SOLICITOR, CONSUMER LAW CENTRE

Endnotes 1. Emma Somerville, ‘NSW regional councils battling drought and fire push for funding amid COVID-19 pandemic’, ABC News (online, 23 April 2020), https:// 2. Lisa Cox, ‘Fears for wildlife recovery after bushfires as coronavirus crisis stymies scientists’ fieldwork’, The Guardian (online 5 April 2020), https://www.theguardian. com/australia-news/2020/apr/05/fears-for-wildliferecovery-after-bushfires-as-coronavirus-crisis-stymiesscientists-fieldwork. 3. Consumer Action Law Centre, Submission to the Royal Commission into National Natural Disaster Arrangements, (24 April 2020), 7 and 15. 4. Ibid, 6 and 17. 5. Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Final Report, February 2019) vol.1, Recommendation 4.8, 33. 6. The Treasury, ‘Making insurance claims handling a financial service – Exposure draft legislation’ (29 November 2019) 7. See eg ASIC, ‘20-006MR ASIC encourages fair and effective insurance claims handling for people affected by the bushfires – warns against unscrupulous “service providers”’ (online, 9 January 2020), au/about-asic/news-centre/find-a-media-release/2020releases/20-006mr-asic-encourages-fair-and-effectiveinsurance-claims-handling-for-people-affected-by-thebushfires-warns-against-unscrupulous-service-providers/. 8. Parliament of Australia, ‘2019–20 Australian bushfires— frequently asked questions: a quick guide’, 12 March 2020, Parliamentary_Departments/Parliamentary_Library/ pubs/rp/rp1920/Quick_Guides/AustralianBushfires. 9. Environment, Planning and Sustainable Development Directorate, ‘Orroral Valley Fire Rapid Risk Assessment Namadgi National Park’, March 2020, pdf_file/0003/1495236/orroral-valley-fire-rapid-riskassessment-namadgi-national-park.pdf. 10. Ibid. 11. See Commonwealth Scientific and Industrial Research Organisation (CSIRO), ‘Climate change in Australia Projections for Australia’s NRM regions’, https://www. future-climate/regional-climate-change-explorer/clusters/; see also NSW Office of Environment and Heritage (OEH), ‘AdaptNSW’, https://climatechange.environment.nsw. 12. The impacts of a warming climate on Australia are set out in more details in Bureau of Meteorology and CSIRO, ‘State of the Climate 2018’, 2018,


Community links

Why corporate social responsibility is good for business Declan Norrie, Manager CSR and Pro Bono at Proximity, explains how donations, volunteering, and responsible supply chain choices can transform a business’ community impact and staff retention.

Organisations are increasing their focus on corporate social responsibility (CSR) and showing their commitment to the communities in which they operate.

As leaders in the CSR space, we will explore why we believe CSR is good for business and share our lessons learnt in building and delivering an effective CSR program.

They are doing this through donations to organisations in the community sector, staff volunteering, environmentally conscious office planning, supply chain choices, and more.

We hope our experience will give other organisations the opportunity to increase their positive community impact while understanding the overall business benefits.

As a result, businesses that focus on CSR not only positively contribute to their communities, but they also benefit from their involvement.

Encourage employee engagement

Proximity has a strong commitment to our community and people, and as a result we have established a longterm CSR strategy, led by our CSR Manager, who is dedicated to the delivery and implementation of our strategy.

The way an organisation treats the community and its perception among staff and prospective employees is important. Getting your staff involved in CSR is likely to improve their sense of purpose in the workplace, which is vital to ensure you attract and retain the right people.

Provide your team with opportunities to volunteer and be a part of your CSR program. This can be achieved through pro-bono work, corporate volunteering or allowing your staff to assist in the running or organising of fundraising events.

Leverage as a recruitment tool In today’s market, a strong and marketable CSR program is also a powerful and persuasive recruitment tool. The business community has seen this with our recruitment and retention of Millennials and Gen-Zs. More than ever, potential employees are selective about which companies they work for and they are seeking to join organisations that not only have



a CSR strategy, but are also active and involved in the CSR space. Employees are looking for organisation-supported community time, impactful initiatives, and transparency and genuineness with respect to the community (i.e. measuring impacts and publicly reporting them and avoiding “greenwashing�). We strongly recommend leveraging your CSR efforts across your recruitment channels, whether that be uploading case studies to your recruitment page on your website, including in recruitment brochures or developing CSR videos to promote on social media, make sure you use your CSR as a unique selling point to stand out from the crowd.


Make proactive and targeted efforts CSR initiatives do not materialise out of thin air, and they have real, tangible costs to your organisation. By starting with this view, organisations are empowered to reflect on their strengths and weaknesses to identify how positive impacts can be maximised by those strengths, and negative impacts are minimised by those weaknesses. For example, a law firm that has a strong externally facing CPD program is far better equipped to run a similar program for the community sector, or a law firm with strong discrimination law expertise is far better equipped to efficiently resolve pro bono disputes for clients affected by discrimination than one specialising in wills and estates.

Your organisation has its strengths because you operate a commercially viable business. Maximise your community impacts by harnessing those strengths. The result will be low cost, high quality, and easily administered CSR initiatives.

Geography matters 2020 in Canberra has seen a paradigm shift in how we operate as a community. With fires, hailstorms and pandemics, we are leaning into our community more than ever. We are seeing a hyper-local trend emerge, whereby people are shopping, eating, holidaying, and investing their savings in their immediate surrounds.


Case Study Proximity CSR charges on despite COVID19 event restrictions Although the world may be self-isolating and social distancing, Proximity’s recent virtual fundraising event “Hair Change for Loose Change” for the Domestic Violence Crisis Service (DVCS), proves that it is still possible to come together for good. On Thursday 23 April, the Proximity team tuned in remotely as multiple brave staff and family members volunteered to shave, change or colour their hair for DVCS. In addition to witnessing the hair transformations, Proximity also hosted a Virtual Scavenger Hunt which saw whole families involved in finding household items for prizes, and a Talent Auction to leverage the unique talents of staff, resulting in over $1,300 being raised for a ramen cooking lesson, PT sessions, baked goods, and specially curated book bundles. The virtual event was a huge success for DVCS fundraising and keeping the Proximity team connected with each other during COVID-19 working from home arrangements. The original fundraiser target of $2,000 was quickly surpassed, with a total of $7,098 raised from internal staff and wider community donations. For more information about Proximity and our CSR efforts, please contact us at

Many issues that face our community are not endemic to the Canberra region. Many of the community organisations that address these problems, and the individuals that make up our community, are endemic to our region.

to implement. By keeping your focus local, you are increasing your brand profile in the community, with maximum potential for ROI in relation to obtaining new clients and attracting potential employees.

The positive impacts of hyper-local CSR initiatives include increased brand profile while minimising marketing investment, heightened employee engagement, increased referral avenues to your organisation, and recognition by the community as being genuine and having a vested interest in the community’s effective functioning.

Align with your business strategy

The key is to focus on your strengths and keep your efforts local and targeted. By using your own assets strengths, your CSR efforts will be low cost and easier for your team

CSR programs should align with your overall business strategy and include strategic objectives that are measurable. Identify the strategic objectives your CSR initiatives can contribute to, measure their impact and assess whether further investment in your CSR program can contribute to furthering your strategic goals in a new way.

This is not to say that CSR and strategic goals need to be identical, or that CSR should inhibit business growth. It is about making informed business decisions that will result in positive outcomes at all levels. At the end of the day, the goal of a good CSR strategy is for both the organisation and the community to benefit from it. Remember that a mutually beneficial program and partnership is the definitive measure of determining CSR success. Declan Norrie MANAGER CSR AND PRO BONO, PROXIMITY



Law Week seminar:

International law and cruise ships — Sailing into stormy waters Professor Donald Rothwell from the ANU discusses the legal implications of allowing, or denying, docking to cruise ships carrying passengers impacted by a pandemic.

The global cruise ship industry has sailed into a storm as a result of the COVID-19 crisis raising a multitude of legal issues. The first inkling of the troubles ahead arose with the Diamond Princess which while on an East Asian cruise was denied access to several ports before arriving in Yokohama on 3 February.1 Once there, Japanese authorities were confronted with dealing with outbreaks of COVID-19 amongst passengers and crew, hospitalisation of those who were ill, and eventual repatriation of passengers to their home countries. Similar incidents have now been replayed with cruise ships in ports from Sydney, to Fremantle, to Uruguay, and Florida. 


Whilst the rapid onset of the COVID-19 pandemic has clearly been the catalyst for these events, the global cruise industry has in recent years enjoyed unprecedented growth especially amongst baby boomers. The presence of so many older passengers, many of whom have underlying health problems, also made cruise ships a vector for the spread of the disease in ways that have been duplicated in other enclosed communities during the pandemic such as aged care facilities and worker hostels. The other unique dynamic that has arisen is that whilst the closure of ports and harbours is not exceptional, especially during severe weather or wars, the pandemic has seen the near simultaneous closure

of ports and harbours at the same time, meaning that in a number of instances cruise ships had nowhere to dock. The Panama Canal2 was even closed to two ships — the MS Rotterdam and MS Zaandam — in late March. Only after negotiations with the Holland America line were the ships allowed to pass through the canal and make their way to ports in Florida. The operation of cruise ships raises a unique mix of public and private international law in ways that are not dissimilar to the international aviation industry. Cruise ships, like all shipping, enjoy the freedom of navigation under the law of the sea. This gives to these ships rights to sail the high seas and also in and around certain coastal areas, including



the territorial sea where a right of innocent passage can be exercised. This is irrespective of whether the ships are flagged to the coastal state around whose waters they are sailing, or to a registry state elsewhere. In this respect, the global cruise industry is no different to the shipping industry more generally and flags of convenience are commonplace. Many cruise ships are therefore flagged to registries in the Bahamas, Bermuda, Italy, Malta, or Panama and nominally that is where their “home” ports are located. This is notwithstanding that the ships may be chartered, owned, and operated by cruise operators that are located elsewhere such as the United States.

A “foreign-flagged” cruise ship that is flying one of these flags is entitled to enter an Australian port as part of its regularly scheduled services. This entitlement also extends to when the ship is carrying passengers and crew who may be ill. Given the length of time that cruise ships are at sea, and the general age and health of their passengers, ill health is not uncommon and doctors and medical facilities are available to deal with common health issues. However a pandemic such as COVID-19 clearly raises many additional challenges, and the World Health Organisation (WHO) 2005 regulations3 anticipate some of the issues that arise.

The WHO regulations require port states to have in place appropriate medical facilities to receive ships carrying passengers impacted by disease and to provide assistance to those ships, including land-based medical facilities such as hospitals. Importantly, entry to ships carrying passengers impacted by a pandemic is not to be denied. Nevertheless, authorities in both New South Wales and Western Australia4 raised concerns over local health facilities being overwhelmed by COVID-19 cases from cruise ships coming into port. This has highlighted whether the medical systems in those States had the capacity to receive these ships in the



An important aspect associated with the entry of any foreign ship into a port is the principle of pratique, which is relevantly defined in the WHO regulations as “permission for a ship to enter a port, embark or disembark, discharge or load cargo or stores”. PROFESSOR DONALD ROTHWELL FAAL

manner anticipated by the WHO regulations. An important aspect associated with the entry of any foreign ship into a port is the principle of pratique, which is relevantly defined in the WHO regulations as “permission for a ship to enter a port, embark or disembark, discharge or load cargo or stores”. Pratique is also reflected in Australian law under the Biosecurity Act 2015 (Cth) and is supported by Maritime Arrivals Reporting Systems (MARS),5 which place obligations upon ships prior to entry to provide details of any biosecurity threats.  The manner in which pratique was granted on 19 March to the cruise ship Ruby Princess to enter Sydney Harbour and disembark passengers, many of whom were subsequently found to have been infected with COVID-19, is under review. Three investigations have been commenced: a NSW criminal investigation, a NSW coronial inquiry as a result of the deaths of several of those passengers, and a NSW government Special Commission of Inquiry by Bret Walker SC6 into the process and practices that were followed.


Resolving some of the issues associated with pratique and in the case of Australia the respective roles of the Department of Agriculture, Australian Border Force, the relevant State Health Departments, and the local port authorities are critical to moving forward in responding to the pandemic in Australian ports. While one impact of COVID-19 is that the global cruise industry will more than likely be suspended until such time as States reopen their borders and the cruise operators can satisfy passengers of their health and safety, merchant ships will continue to operate. As States seek to energise their economies through the resumption of trade and commerce, shipping will play a vital role. The granting of pratique will assume increased importance as States attempt to balance the economic importance of trade against the need to stop the spread of COVID-19.  Professor Donald Rothwell FAAL PROFESSOR OF INTERNATIONAL LAW, ANU COLLEGE OF LAW This essay is part of a series, “International law and COVID-19”, by legal scholars at The Australian National University. See more essays by international law scholars at

Endnotes 1. Justin McCurry, “Coronavirus: two Diamond Princess passengers die as Japan defends quarantine”, The Guardian, 20 February 2020, at https://www.theguardian. com/world/2020/feb/20/coronavirus-two-diamondprincess-passengers-die-as-japan-defends-quarantine. 2. Diane Taylor, Kate Proctor and Dan Collyns, “Britons on virus-hit ship wait for Panama Canal green light”, The Guardian, 30 March 2020, at https://www.theguardian. com/world/2020/mar/29/britons-on-virus-hit-ship-waitfor-panama-canal-green-light. 3. World Health Organization, International Health Regulations (2005), Third edition, 2016, at https://www. 4. Jacob Kagi and Eliza Laschon, “Foreign coronavirusinfected cruise ship passengers on Artania taken to WA Police Academy for quarantine”, ABC News, 27 March 2020, at 5. Department of Agriculture, Water and the Environment, Maritime Arrivals Reporting System (MARS), at https:// 6. NSW Government, Special Commission of Inquiry: Ruby Princess, at special-commission-of-inquiry-ruby-princess.


Law Week seminar:

What can lawyers do to protect our native wildlife? The recent bushfires have put the plight of our native wildlife at the forefront of the national consciousness. Here, the Animal Defenders Office considers the legal status of native wild animals in Australia.

Recent Law Weeks in the ACT have explored the theme of ‘Lawyers: Protecting Your Rights’.1 As part of Law Week 2019 the Animal Defenders Office presented a seminar to members of the legal profession and the community at large about the billions of non-human animals who do not have rights, and the global quest by lawyers to obtain basic rights for at least some animals.2 In the summer of 2019-20, Australia was ravaged by bushfires. Our collective heart broke as we watched the devastating images of burnt and injured native animals stumble out from the fires. We were then plunged into profound despair as we thought of the suffering of the animal victims we could not see. Professor Chris Dickman, an ecology expert from the University of Sydney,

estimated that one billion animals died in the fires.3 In fact-checking this estimate, the ABC concluded it was a conservative figure, and that the number was probably higher.4 With the plight of our wildlife at the forefront of our national consciousness, it is timely that we revisit the issue of protecting the rights of animals in Law Week 2020. How is it possible that native wild animals, an integral part of the local natural environment and landscape, do not have legally enforceable rights that lawyers can protect? How can lawyers protect our native wildlife? With these questions in mind, this article will consider the legal status of native wild animals in Australia, some of the fundamental problems they face, and ways lawyers can protect them.

To clarify, we are not just talking about threatened or vulnerable species. These species are better protected than most wild animals under our legal system, but have paid the price for this protection by receiving it only once they are close to extinction. This article will look at all native wild animals: those whom we have driven almost to extinction, and those who have adapted better to the land’s relatively recent occupation by non-indigenous humans.

Legal status of wildlife Animals are regarded as property under the law.5 The animals with whom humans interact on a regular basis, such as pets and farm animals, have the traditional hallmarks of property.




They can be identified, possessed, and controlled by humans. But what about free-living wild animals? We cannot identify precisely which animals are living where. They are not possessed by anyone, and they are ipso facto beyond our control. This has not stopped governments from asserting that wild animals are the property of the crown. Late last century this issue went all the way to the High Court of Australia. In the case of Yanner v Eaton the High Court dismissed the Queensland Government’s assertion in legislation that fauna was the ‘property of the state’.6 The High Court said that no one can own free-living wildlife because we cannot identify what exactly would be owned by the entity claiming


to be the owner, and because that entity does not possess the free-living wildlife. The High Court therefore concluded that the property status of free-living wildlife is something less than full property ownership. But the High Court also stated that governments have some rights over wildlife, namely the ‘power to preserve and regulate the exploitation of an important resource’.7 That is why today in Australia human interaction with wildlife is usually regulated by governments through licence regimes. It is also why, despite native wild animals being ‘protected’ under nature or biodiversity conservation laws, it does not actually amount to much. It simply means that it is an offence to harm the animal without a licence.8

In the ACT most native animals are ‘protected’ in that it is an offence to kill them without a licence.9 Some, however, are less protected than others. Recently in the ACT the legal status of one of our most iconic native animals, the Eastern Grey Kangaroo, was changed overnight by the stroke of a Minister’s pen. With the Nature Conservation (Controlled Native Species – Eastern Grey Kangaroo) Declaration 2017, the ACT Minister for the Environment declared the Eastern Grey Kangaroo to be a ‘controlled native species’. The consequences for the kangaroos, and members of the public who wanted to take action to protect them, were immense. The change in legal status not only meant that a licence was no longer required to harm the animals, but it also removed the right


to review government decisions to kill the animals, despite the strong public interest in the welfare and fate of this iconic native wild animal.10 Since this change in legal status, the ACT government has approved the killing of thousands of local kangaroos,11 and these government decisions are beyond the scrutiny usually afforded by administrative review.12

Does our native wildlife need protection? The devastating impact of the bushfires on Australia’s wildlife made headlines around the world.13 The terrible toll of the fires compounded ongoing threats to wildlife such as habitat destruction14 and fragmentation, drought, and climate change. Government assistance for fireaffected wildlife has targeted the most ‘at risk’ species, namely those that were already endangered and vulnerable before the fires.15 There is, of course, a dire need for such assistance. It does, however, exclude millions of other individual native animals who may not be classified as at risk, but whose habitat and food sources were equally affected by the fires. These animals face other threats to their survival. Despite the vast number of native wild animals killed by the fires, governments around Australia continued to allow native animals to be killed for commercial or so-called damage mitigation purposes. In NSW, for example, licences are still issued to landholders to kill native animals such as wombats, kangaroos, and kookaburras, despite advocates

calling for a suspension of all such permits to kill surviving wildlife.16 The commercial kangaroo industry has also been allowed to continue killing many thousands of kangaroos and joeys despite the unquantified impact of the fires on kangaroo populations.17 In Victoria, the situation was particularly perilous for wombats. These native wild animals could be killed in certain areas of the State without even having to obtain a permit. In a small but significant change after the fires, the Victorian government reinstated wombats’ ‘protected’ status, so at least a permit is now required before the animals can be legally killed.18 However, in the wake of the devastating toll on these animals due to the bushfires, advocates have again called for the killing of these native wild animals to be suspended.19 These case studies give some insight into the enormous challenges facing native wildlife in Australia. So how can lawyers help to protect their interests?

How lawyers can help As we have seen, the law regards native wildlife as ‘resources’ regulated by government. Taking action to protect wildlife therefore often consists of seeking review of government decisions, making submissions about government reform proposals, or lobbying lawmakers.

Administrative review Given their ‘unowned’ status, taking action to protect native animals usually falls to volunteers and community

organisations. An important role for lawyers can be to provide pro bono assistance to these entities by way of legal advice and/or representation. A recent example of a successful action to protect wildlife occurred in Cairns, Queensland. On 1 May 2020 the Queensland Civil and Administrative Tribunal handed down its decision in a case brought by the Agile Wallaby Project group, a local wildlife rescue organisation. In 2017 the organisation had applied to the Queensland Department of Environment and Science for a permit to translocate hundreds of agile wallabies from a small urban area where they were taking refuge after the fragmentation of their habitat. The State Department refused the application, but the Tribunal has now overturned that decision in favour of the organisation. The decision allows the organisation to proceed with what will be the country’s largest translocation of macropods, and to sites that the organisation describes as ‘wallaby heaven’.20 In the ACT, grass-roots community organisations have sought administrative review of decisions by government to kill large numbers of local kangaroos. In 2014 the Animal Defenders Office represented Animal Liberation ACT in one such challenge.21 On behalf of the animal rights organisation the Animal Defenders Office obtained an injunction to stop the cull that was already underway. While the ultimate decision of the Tribunal went against the applicants, some victories along the way were achieved.



Animal Defenders Office The Animal Defenders Office is a nationally accredited notfor-profit community legal centre that specialises in animal law. The Animal Defenders Office is run by volunteer lawyers and law students and other volunteer professionals. It offers information and representation for individuals and groups wishing to take legal action to protect animals. The Animal Defenders Office also produces information to raise community awareness about animal protection issues, and works to advance animal interests through law reform. The Animal Defenders Office is based in Canberrra, and is a member of Community Legal Centres Australia, the peak body representing community legal centres in Australia.



For the first time, notably, the Tribunal agreed that animal welfare was a relevant consideration in a decision to issue licences to kill the ‘protected’ native wildlife. Moreover, during cross examination the government’s veterinary officer admitted that hundreds of at-foot joeys were ‘unintended mortality’ of the culls. These young kangaroos are out of the pouch but still wholly dependent on their mothers’ milk for food. During the culls they escape when their mothers are shot, but only to die an ‘eventual’ death from

starvation, dehydration or predation because they no longer have access to their mother’s milk. These deaths are not included in cull numbers. During the trial this aspect of the culls came to be referred to as the ‘ghost population’ of orphaned cull casualties, which the government still protests against.22 This outcome was an important victory in terms of raising awareness about the serious animal welfare consequences of the culls. Another interesting example of administrative review of government


decisions regarding wildlife is the case involving the local wildlife rescue organisation Wildcare, based over the border in Queanbeyan.23 In response to the ACT government’s policy of not allowing orphaned kangaroo joeys to be rescued and rehabilitated,24 and to avoid the orphaned joeys simply being killed, the organisation sought a licence to export them from the ACT so they could be cared for in NSW. The ACT government refused to grant the licence. The organisation sought review of the decision in the ACT Civil and Administrative Tribunal, and while it lost at first instance, it was successful on appeal.25 As a direct result of this case, many kangaroo joeys have been given a chance at life that they otherwise would not have had.

Submissions about reform proposals Governments frequently propose amendments to the regulatory framework governing human interaction with native wildlife. Lawyers can play an important role in contributing to public consultation processes about these proposals, not only because of their in-depth knowledge of the legal system, but also due to their reputation for being ‘astute and good at working out where in practice to apply ideas for maximum effect’26. Making submissions on the welfare implications of reform proposals affecting wildlife could range from commenting on a new draft national code of practice for the commercial shooting of kangaroos, to assessing moves to abolish the requirement for licences to disturb flying-fox camps or plans to deploy drum lines to capture and kill sharks.27

Lobbying for law reform Lawyers can also work with community organisations to lobby politicians and law-makers for law reform to better protect wildlife. Lawyers can be excellent advocates for law reform, given their familiarity with regulatory frameworks and the law-making process. In writing this article we reached out to ACT Wildlife, the ACT’s leading wildlife rescue organisation (and the Law Week 2020 charity), to find out about the challenges the group’s volunteer wildlife carers face in protecting wildlife.28 We discovered that one of the biggest issues confronting the group is rescuing and caring for native flying foxes caught in poorly designed and badly hung fruit tree netting. Poorly designed tree netting has holes in which animals can become entangled. It is readily available for sale in the ACT. When hung in a loose manner on garden fruit trees it can become a death trap for native animals. Scores of flying foxes get caught in the nets and often remain there for days before being freed by wildlife carers. Half of the animals rescued by carers die from injuries sustained during their ordeal. So how could lawyers help with this issue? Would law reform even be feasible? As lawyers, we would research and discover that in December 2019 Victoria amended its animal welfare regulations to regulate the sale and use of fruit netting. The new regulation creates an offence to use or sell fruit netting that does not comply with the stipulated mesh size.29

Being able to point to a recent example of law reform in an Australian jurisdiction would make it easier to persuade local parliamentarians that ACT legislation should be similarly amended to help stop flying foxes from getting caught in inappropriate netting, and to reduce the time volunteer carers have to spend on rescuing and either rehabilitating or euthanasing these diminutive native animals.

The ultimate law reform for wildlife Perhaps ironically, we shall leave the last word on law reform for wildlife not to a lawyer, but to a philosopher. In 2005 the internationally renowned Australian philosopher Peter Singer proposed what would be a gamechanger in terms of how the law regards wildlife:

We need a Mabo decision for Australia’s wild animals, a legal recognition of their special status as original residents of Australia, alongside its original [human] inhabitants. The only ethical approach is one that gives their interests equal consideration alongside similar human interests.30 Over a decade later this remains an aspirational goal for wildlife law reform in this country. Tara Ward ANIMAL DEFENDERS OFFICE Tara Ward is the co-founder of the Animal Defenders Office, and volunteers as Executive Director and Principal Lawyer for the organisation. Tara also teaches animal law at the University of NSW.



Endnotes 1. Law Week theme in 2019 and 2020. 2. See a write-up of our presentation by Mike Rosalky, Animal Defenders Office volunteer lawyer and director: ‘Deserving of rights. Legal personhood and animal law,’ Ethos. Law Society of the ACT Journal, Issue 253, Spring 2019. 3. ‘More than one billion animals killed in Australian bushfires’, News, University of Sydney, 8 January 2020, news/2020/01/08/australian-bushfires-more-than-onebillion-animals-impacted.html. 4. ‘Have more than a billion animals perished nationwide this bushfire season? Here are the facts’, RMIT ABC Fact Check, updated 4 Feb 2020, news/2020-01-31/fact-check-have-bushfires-killed-morethan-a-billion-animals/11912538. 5. See for example the definition of ‘goods’ in the Competition and Consumer Act 2010 (Cth): ‘goods includes… (b) animals, including fish’ (s4). 6. Yanner v Eaton (1999) 201 CLR 351. 7. Yanner v Eaton at 369. 8. See for example Biodiversity Conservation Act 2016 (NSW), ss2.1 and 2.10. 9. Nature Conservation Act 2014 (ACT), ss130 and 153. 10. Between 2009 and 2014 various animal protection groups from around Australia had sought administrative review of the ACT government’s decisions to grant licences to kill thousands of kangaroos each year in Canberra nature parks: see Animal Liberation v Conservator of Flora and Fauna (Administrative Review) [2009] ACAT 17; AT 13/41 Australian Society for Kangaroos Inc v Conservator of Flora and Fauna [2013] (unreported); and Animal Liberation ACT v Conservator of Flora and Fauna (Administrative Review) [2014] ACAT 35. 11. F O’Mallon, ‘More than 4000 kangaroos shot in Canberra cull’, Canberra Times, 26 Jul 2019, https://www. 12. Animal Defenders Office Media Release, ‘Animal Defenders Office condemns anti-democratic changes to legal status of kangaroos’, 14 Feb 2017, https://tinyurl. com/yaomy6bm. 13. For example J Yeung, ‘Millions of animals are dying from the Australian fires’, CNN, 9 Jan 2020, https:// 14. See for example the bulldozing of the bluegum plantation at Cape Bridgewater, Victoria, that resulted in a ‘massacre’ of koalas. K O’Sullivan and S Woolley, ‘Koalas allegedly killed in ‘massacre’ on private logging plantation in Victoria’, 7 News, 3 Feb 2020, news/animals/hundreds-of-koalas-allegedly-killed-inmassacre-on-private-logging-plantation-in-victoriaswest-c-677103. 15. Premier of Victoria Media Release, ‘Immediate Support For Victoria’s Wildlife And Biodiversity’, 23 Jan 2020, Department of Agriculture, Water and the Environment (Cth), ‘Wildlife and threatened species bushfire recovery research and resources’, bushfire-recovery/research-and-resources.


16. Animal Justice Party NSW, ‘Ban NSW Native Animal Slaughter Permits’, NSWnativeanimalslaughter/ACTION/. 17. For example in NSW, the state worst hit by fires, ‘commercial harvester licences’ are available and can be applied for online au/topics/animals-and-plants/wildlife-management/ kangaroo-management/commercial-harvester-licence. In South Australia, the commercial kangaroo harvest area was set to cover practically the entire state on 1 Jan 2020, and has not been amended since the fires: 18. See the awkwardly titled ‘Revocation of the Order in Council that unprotects the Common Wombat’ (4 Feb 2020), which makes it illegal to disturb or destroy wombats without an Authority to Control Wildlife. 19. The Greens Victoria, ‘Wombat protection a critical step, but thousands still at risk of being killed’, 6 Feb 2020, 20. At the time of writing this article the Tribunal decision had not yet been published. For the story, see https:// videos/585372589003934/?t=1 and https://www.facebook. com/7NEWSCairns/videos/887671905081438/?t=0. 21. Animal Liberation ACT v Conservator of Flora and Fauna (Administrative Review) [2014] ACAT 35. 22. ACT Government, Nature Conservation (Eastern Grey Kangaroo) Controlled Native Species Management Plan 2017, 11 May 2017, p34, au/di/2017-37/default.asp. 23. Wildcare Queanbeyan Inc, au/. 24. ACT Government 2017, op. cit (note 22), p31. 25. Wildcare Queanbeyan NSW Inc and Conservator of Flora and Fauna [2011] ACAT 68. 26. Author JM Coetzee, quoted in The Animal Law Toolkit by Voiceless. The Animal Protection Institute, First Edition, December 2009, p35. 27. Submissions by the Animal Defenders Office on government proposals such as these can be found on our website at 28. ACT Wildlife, 29. Prevention of Cruelty to Animals Regulations 2019 (Vic), regulation 13. Regulation 13 will come into operation on 1 September 2021 (reg 3(3)). 30. Peter Singer, ‘Preface’ to Kangaroos: Myths and Realities, ed. M Wilson and DB Croft, Australian Wildlife Protection Council, 2005.


Court nostalgia

The ghosts around the atrium A recent impromptu tour of our remade court complex recalls a misspent youth, Andrew Fraser writes.

Our new Court building is of course magnificent but it’s a joy to some of us who are now approaching middle age to see particular parts of the old building retained: the marble cladding, the peristyle columns but, especially, that indoor atrium. Walking past that great 1960s design feature the other day, with too much time on my hands during the corona case curtailment, it was easy to drift back in time. The old building, before the 1990s’ erection of [Ron] “Cahill’s Mahal”, under the former Chief Magistrate, let alone the more recent redevelopment, was a vital place. The atrium really was something else, letting light into the place, splitting the two Supreme Courts from the four Courts of Petty Sessions. Best of all, it ensured defendants and complainants and informants could mix freely, exchanging stares and grunts on a daily basis, words

more than frequently and, on special occasions, blows (not unheard of even between co-accused). The place was certainly alive. As a Canberra Times cadet in the early 1980s, it was more than handy. You could sit on the magistrates’ side and see who was about to give evidence in a Supreme Court trial. (Remote witness rooms were still in the future). The Registry was upstairs, unfettered by ticket machines and the plethora of choices for this list or that. You simply asked and the charming counter staff would help, most often with a daily look at the benchsheets to get the details of the morning’s drink-drivers. After the advent of random breath testing, the Times aimed to be scrupulous in recording the outcome of each case ­— and the resultant “column”, or bald collection of details, almost invariably toward

the bottom of a left-hand page — was well known to be among the best-read bits of the paper. Some defendants — including no few in high office — were desperate to avoid having their names recorded. Later, as news editor, I was behind the termination of that column on the grounds that the ever-expanding national city was too big for such small-town gossip and we needed the space for “real news”. How I bemoan that decision now, when, as a practitioner, I think of the swingeing, clinching submissions that I could have made for my clients: “Your Honour, Mr Smith has been held up to ridicule and contempt in the pages of his home community’s most-trusted organ. He doesn’t need a criminal conviction to have brought home to him the gravity of this offence.” Or something like that. The ghosts of times past are many. Who might feature around the glass




walls protecting the topiary Coat of Arms on any given day in those faroff times? First out of the blocks might be the punctual and precise Kevin Dobson SM, heading into a list that both ends of the bar table would approach with fear. Always quick with a crack, Mr Dobson once criticised the non-appearance of a defendant and said he knew there was no good reason for it. As it turned out, His Worship had visited the cells in the morning and was able to report that this particular defendant had been sleeping soundly as late as 8am, and was, therefore, definitely in the building and able to be brought before him. Who next do we spy? Jack Waterford or the late Rod Campbell perhaps, emerging from the impenetrable smoke of the narrow press room to run into Mr Dobson’s traffic


list? Once ensconced, Waterford could pick the fines His Worship would impose within nothing more than a $5 tolerance. Mr Dobson’s consistency was not nearly as well known as the bark of his sentencing remarks, which was always far worse that the actual bite of his sentences. As the crowd grows, a hush might accompany the arrival of a particular defendant or the supposed gun barrister of the day. Is that “Spiderman” Nelson, with his distinctive web of tattoos around the eyes, laughing and joking with police while a gaggle of glamours in the gallery await their hero’s fate? The stories surrounding Arthur James Nelson were legion. When he was shot dead by police (in Victoria in 1988), he had 84 charges outstanding in the ACT, which he departed via the less than fully secure (and now late

and unlamented) Belconnen Remand Centre. As Marion Frith put it in the Times when Nelson passed, “His whole persona led to all sorts of stories about him spreading around the courts, oft repeated but unconfirmable; that he had got out of a police cell by jiggling the lock with a shoelace, that he had held up the bank at which he had been a customer for the past two years — his distinctive tattoos unconcealed, and that on the times he did get bail he had been escorted upstairs to sign the papers with gorgeous women on his arm.” And what of our ruthless custodians of law and order? Here comes a familiar figure barrelling through the heavy outer door of Supreme Court No 2 with a crash, clearly signifying another acquittal. It was a wise cadet who



didn’t ask Detective Sergeant Ric Ninness for a quote just at that minute. Some of the cases of those days were epic, with the infamous “Watson Party” a standout. Played out at a suburban barbecue, it was supposed to be a political coming-together but ended up as open warfare for control of the Territory’s building sites. There were real fears police may have been overwhelmed — until the arrival of one particular sergeant whose evidence, in the cold day from the witness box, ran along wonderfully straightforward lines. He agreed with his examiner-in-chief that the situation — 20 or more burly blokes throwing haymakers at each other — was somewhat chaotic upon his arrival. The knowing inquisitor then asked how the sergeant had quelled such a

dangerous situation: “I made my way to the centre of the disturbance”.

part of the new court complex that is unarguably better.

And how did something so seemingly sterile quell the situation?

The marble cladding at the back of the old building has been saved and now forms one side of an internal corridor — and the old access out of the back of the building is, thankfully, gone.

In a series of short sentences, the sergeant relayed that he had delivered an approved strike to at least four participants and then “passed” them to the uniformed constables who were following in his wake. How long had this all taken? “Ten seconds.” And their condition? “Unconscious.” The “party” was the top war story for weeks over morning smoko at the Hobart Lounge, pretty much the only morning-coffee venue near court in those times. While this rant might seem to be all about how much better “the good old days” were, there is at least one

I had harboured a lurking fear that in “staking out” some poor defendant or other, we would, one day, have someone take flight around the atrium, out the back and straight on to Vernon Circle. The renovations have permanently avoided the need for any such inquest. Andrew Fraser Andrew Fraser practices criminal law with Armstrong Legal. Contact him at


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