Академический Документы
Профессиональный Документы
Культура Документы
2017
Edited By
Jade Tyrrell
Published By
New South Wales Society of Labor Lawyers
Artistic Design By
Lewis Hamilton
Cover Illustration By
Linda Hoang (www.lindahoang.com)
Our Mission
The New South Wales Society of Labor Lawyers aims, through scholarship and advocacy,
to effect positive and equitable change in substantive and procedural law, the administration
of justice, the legal profession, the provision of legal services and legal aid, and legal
education.
Copyright 2017 New South Wales Society of Labor Lawyers INC9896948. The 2017 Committee
is James Mack, Rose Khalilizadeh, Janai Tabbernor, Lewis Hamilton, Tom Kelly, Kate Harrison,
Kirk McKenzie, Philip Boncardo, Stephen Lawrence, Claire Pullen, Jade Tyrrell and Tina Zhou.
Disclaimer
Any views or opinions expressed are those of the individual authors and do not necessarily
reflect the views and opinions of the New South Wales Society of Labor Lawyers or of
the Australian Labor Party. Moreover, any organisations represented in this publication
are not expressing association with the New South Wales Society of Labor Lawyers or
the Australian Labor Party.
Acknowledgements
Our thanks goes to all those who contributed to this publication, and to the lawyers before
them who built the modern Australian Labor Party and embedded social justice in our
national identity. We especially thank our sponsors, Maurice Blackburn Lawyers, who car-
ry on the inspiring legacy of Maurice McRae Blackburn, a champion lawyer and a federal
Labor MP.
2
Legal Tweaks
INTRODUCTION HEALTH & SOCIAL WELFARE
1. Foreword - Mark Dreyfus QC MP 27. Nicholas Cowdery AM QC
2. Foreword - Paul Lynch MP 28. Joe Blackshield
3. Editor’s Note - Jade Tyrrell
INDIGENOUS AUSTRALIA
ACCESS TO JUSTICE
29. Kathryn Ridge
4. Senthorun Raj 30. Charles Gregory
5. Stephen Lawrence
6. Stephen Dametto
LABOUR LAW & STANDARDS OF CARE
7. Harry Edwards
8. Owen Nanlohy
31. Philip Boncardo
9. Aloysius Robinson
32. Penny Parker
10. Greg Jones
33. Cassandra Taylor
11. Eliot Olivier
34. Jack McNally
12. Lewis Hamilton
35. Keifer Veloso
13. James Mack
36. Justin Pen
37. Claire Pullen
PUBLIC LAW 38. Aron Nielson
15. Blade Atton
MIGRATION LAW
ANTI-DISCRIMINATION 39. Douglas McDonald-Norman
40. Jane Leibowitz
16. Megan Cant 41. Kirk McKenzie
17. Amy Zhang
PROPERTY LAW & ANIMAL
CRIME & LAW ENFORCEMENT OWNERSHIP
18. Tina Zhou
42. Michael Hall SC
19. Luke Beck
43. Evan James
20. Madeleine Bridgett
21. Maeve Curry
22. Kieran Fitzgerald
23. Rose Khalilizadeh
24. Blake Osmond
25. Amelia Birnie
26. David Rofe
3
It is a pleasure to introduce the
2017 edition of Legal Tweaks.
I congratulate the NSW Society of Labor
Lawyers on this progressive publication, now
in its sixth successive annual edition.
Paul Lynch MP
NSW Shadow Attorney-General
Member for Liverpool
INTRODUCTION
Foreword
PAUL LYNCH MP
2
As progressive lawyers, it is
incumbent upon us to promote
law reform that is geared
towards improving fairness
and equality in society.
If you could change one (Stage Two), unless they could demonstrate
particular section or regulation, that they were competent enough to con-
sent. But, the Family Court would still have
what would it be? to measure their competence. Either way:
trans young people who wanted hormones
Australia must legislate so that trans young had to go to court.
people can access greater medical sup-
port without having to get approval from Legal processes generate enormous fi-
the Family Court of Australia. nancial, physical, social, and psychological
costs. The Family Court has approved ev-
Why does this section or ery application it has received on this issue
regulation need to be changed? and urged legislative reform. Trans young
people should be able to get the treatment
Many trans young people (those who iden- they want, in consultation with their guard-
tify with a different sex to the one they were ians and doctors, without courts getting in
assigned at birth) get medical support to the way.
affirm their gender identity. Unfortunately,
common law requires that these minors go
to court before a doctor can undertake “spe- The Family Court
cial medical procedures”. This applies even
when both clinicians and parents support a
has approved every
application it has
ACCESS TO JUSTICE
4
Stephen Lawrence
BARRISTER, SIR OWEN DIXON CHAMBERS & FORMER PRINCIPAL SOLICITOR, DUBBO ALS
5
Stephen Dametto
DETECTIVE SUPERINTENDENT, AUSTRALIAN FEDERAL POLICE
“
prove the offence.
Senate and the House of Representatives. those investigating the offence of multiple
The effect of these sections seems to be voting and to clarify the evidentiary require-
that, for a person to “vote”, they must mark ments to satisfactorily prove the offence,.
a ballot paper in the manner prescribed. The successful investigation of these of-
There is also common law authority which fences encourages faith in our electoral
indicates that voting requires marking and system and therefore our democracy.
submitting a ballot paper: Evans v Crich-
ton-Browne (1981) 147 CLR 169 at 208;
6
Harry Edwards
REGISTERED FOREIGN LAWYER, FREEHILLS
If you could change one Defendants must still meet existing means
particular section or regulation, and merits requirements. However, the
means test is so low that a person who
what would it be? fails the means test simply cannot afford a
lawyer. In terms of merits, legal aid is nev-
I would amend the policy introduced by er available for matters which do not have
Legal Aid NSW affecting the availability of possible prospects of success.
legal aid for defended hearings in the Local
Court. This policy remains in force and its exis-
tence risks innocent but unrepresented
Why does this section or people being wrongly convicted or pun-
regulation need to be changed? ished beyond what is fair because they
fail to mount a defence. In NSW, 90% of
On 4 November 2013, Legal Aid NSW intro- criminal matters are finalised in the Local
duced a defended hearing policy, where le- Court. Even if a person is not at risk of im-
gal aid will be refused for those who plead prisonment, a criminal record will make fu-
not guilty in the Local Court, unless there is ture employment and travel more difficult.
a real possibility of a term of imprisonment In addition to this, being subjected to an
or if certain exceptional circumstances exist. unjust process threatens to alienate them
This was justified on the basis of budgetary further from the community.
pressure placed upon Legal Aid NSW.
ACCESS TO JUSTICE
7
Owen Nanlohy
LAWYER, PIPER ALDERMAN
“
regulation need to be changed? ubiquitous.
Following the decision of High Court of
Australia in Australian Broadcasting Corpo- If the uncertainty surrounding the exis-
ration v Lenah Game Meats Pty Ltd (2001) tence or otherwise of this tort were not rea-
208 CLR 199, and the decision of the Vic- son enough to develop a statutory cause
torian Court of Appeal in Giller v Procop- of action which covers the field, then the
ACCESS TO JUSTICE
ets (2008) 24 VR 1, there remains an open purpose of this reform can be justified by
question regarding whether or not these the increasing need to protect individual
cases have provided a foundation for a privacy in an age where social media and
cause of action in unjustified intrusion digital communication are ubiquitous.
upon personal privacy, beyond the liability
which may be found for equitable breach
of confidence.
8
Aloysius Robinson
SOLICITOR, BLAIR CRIMINAL LAWYERS
If you could change one been that “a bill has not yet been settled”.
particular section or regulation, Judges can admonish and chastise, but
they have no practical tools in the legis-
what would it be? lation to sheet home responsibility to the
laggards.
I would insert a provision into Part 3, Chap-
ter 3 of the Criminal Procedure Act 1986
(NSW) to introduce a power to award costs
on adjournment in the District Court.
...a remedy must
be made available
Why does this section or to incentivise the
regulation need to be changed?
efficient conduct of
“
When an indictable matter is at the com- matters...
mittal stage in the Local Court, there is ju-
risdiction for a magistrate to award costs
on adjournment to one party on the basis Delay within the Office of the Director of
of “unreasonable conduct or delay” of the Public Prosecutions is being made a neg-
other party: Criminal Procedure Act 1986 ative externality, and a remedy must be
(NSW), s 118. Once the matter progresses made available to incentivise the efficient
to the District Court there is no provision to conduct of matters so that defendants can
ACCESS TO JUSTICE
9
Greg Jones
BARRISTER
“
prehended domestic violence order under
the DPV Act are closed to the public and
to prohibit publication of such proceedings
except where the Court orders otherwise In too many cases it can be argued any
on public interest grounds. public interest in the reporting of such pro-
ceedings can be overshadowed by sen-
Why does this section or sational media reporting, which gives the
regulation need to be changed? public a provocative but not a representa-
tive perspective of domestic violence. Al-
This proposed amendment is modelled on though it can be argued open justice is one
the Queensland Domestic and Family Vio- of the most fundamental aspects of the
lence Protection Act 2012, ss 158 and 159. system of justice in Australia, this needs to
For too long in New South Wales, domestic be balanced with an individual’s right to pri-
ACCESS TO JUSTICE
violence proceedings under the DPV Act vacy, particularly in relation to a former or
have been subjected to intrusive reporting existing domestic relationship. The risk of
by the media. If the above amendment had parties, especially the victim, having their
been enacted in New South Wales, it is less dignity unfairly impugned by incorrect or
likely that a court would permit either the unnecessarily embarrassing media cover-
opening or publication of these types of age is too great under the current law.
proceedings.
10
Eliot O livier
CLASS ACTION LAWYER
“
representation.
ACCESS TO JUSTICE
11
Lewis Hamilton
LAWYER, MAURICE BLACKBURN
If you could change one activity that has such a significant bearing
particular section or regulation, on access to justice - would be consistent
with the nature of the existing exemptions.
what would it be?
I would add a “Division 8 - Pro Bono Legal
Services” to Part 4 of the Payroll Tax Act
2007 (NSW) (“the Act”) to make wages paid
Granting a tax
exemption for pro
“
to legal practitioners conducting pro bono
work (for the duration of that work) exempt bono legal work...
wages under the Act. would be consistent
Why does this section or with the nature of the
regulation need to be changed? existing exemptions.
Part 4 of the Act already provides payroll
tax exemptions for wages paid to employ- Providing a payroll tax exemption indexed
ees engaging in volunteer fire fighting and to the number of pro bono hours worked
emergency service work; to health care by legal practitioners during the relevant
service providers; and to workers in prima- taxation period would be a much-need-
ry and secondary education. There is an ed incentive for law firms in NSW to com-
ACCESS TO JUSTICE
acceptance that these activities are for the mence (or expand) their pro bono prac-
public good and should not be punished tices. It would assist further in closing the
by the imposition of costly payroll tax. gap between those who can afford legal
services and those who cannot. In particu-
Despite the clear “public good” afforded by lar, it would incentivise pro bono assistance
pro bono legal assistance, it is not present- for cases that are not suited to condition-
ly considered part of this group. Granting a al costs arrangements such as petty fines
tax exemption for pro bono legal work - an and minor offences.
12
James Mack
BARRISTER, LEVEL 22 CHAMBERS
“
“distributes the money to agencies and sector...
projects that give free legal help to those
in need”.
13
Labor Lawyers have shaped Labor’s history since 1890.
Join today: nswlaborlawyers.com/join.
14
Blade Atton
LAW STUDENT, UNIVERSITY OF SYDNEY
“
(“the ADJR Act”) by expanding the defini-
tion of a “decision”.
...the ADJR Act lags
Why does this section or behind common law
regulation need to be changed?
judicial review.
The ADJR Act’s overarching aim was to
simplify and codify the process of judicial
review by ameliorating the complexities of Precisely what an amended ADJR Act
the common law remedial system. Follow- would look like has been subject of debate
ing the decisions in Griffith v Tang (2005) since the Administrative Review Commis-
221 CLR 99 and NEAT Domestic Trading sion’s 1989 report into that issue. But re-
Pty Ltd v AWB Ltd (2003) 216 CLR 277, what form is certainly needed if the ADJR Act is
constitutes a decision made “under an en- to reach its potential as the premier mech-
actment” has become unduly technical, re- anism for judicial review.
viving the complexities associated with the
PUBLIC LAW
prerogative writs.
15
Megan Cant
SENIOR EMPLOYMENT & SAFETY LAWYER, STEVENS & ASSOCIATES LAWYERS
“
protection and fair treatment. Whilst further victims.
research is needed to determine the extent to
16
Amy Zhang
SENIOR ASSOCIATE, HARMERS WORKPLACE LAWYERS
If you could change one There is no rational basis for retaining the
particular section or regulation, cap in circumstances where:
what would it be? • The NSW Civil and Administrative Tribunal
assesses loss and awards damages in ac-
Section 108 of the Anti-Discrimination Act cordance with established authority; and
1977 (NSW) limits the quantum of damag- the quantum of the cap is artificial and has
es awardable in NSW anti-discrimination no logical connection to the loss and dam-
claims to $100,000. I would amend section age actually suffered by a claimant;
108 to remove the damages cap.
17
Tina Zhou
LAW STUDENT, UNIVERSITY OF NEW SOUTH WALES
18
Luke B eck
SENIOR LECTURER IN CONSTITUTIONAL LAW, WESTERN SYDNEY UNIVERSITY
19
Madeleine Bridgett
BARRISTER, 6 ST JAMES HALL CHAMBERS
If you could change one In Australia, the right to a fair trial was de-
particular section or regulation, scribed as “a central pillar of our criminal
justice system” in Dietrich v The Queen
what would it be? (1992) 177 CLR 292. In China, prisoners of
conscience are not afforded this basic
I would amend the offences of organ traf- human right, and are subjected to cruel,
ficking in Division 271 of the Criminal Code inhuman and degrading treatment, often
Act 1995 (Cth) so the laws have extraterrito- resulting in death.
rial application.
20
Maeve Curry
BARRISTER, SIR OWEN DIXON CHAMBERS
244 CLR 120 at [27]. The SNPP therefore sponding provision for aggregate sentences
represents the NPP for an offence that is in under (5) is not only futile, it also invites an erro-
the middle of the range of seriousness, tak- neous approach to sentencing.
ing into account only the objective factors
affecting the relative seriousness of that
offence. A helpful tweak to this provision
would be an explanation of what “objective
factors” means in this context.
21
Kieran Fitzgerald
FEDERAL PROSECUTOR, COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
“
Why does this section or system.
regulation need to be changed?
The use of mandatory minimum sentenc-
The so-called “one-punch” laws were in- es has no place within the criminal justice
troduced amidst a tabloid media-induced system. It removes the discretion of judges
moral panic in early 2014. The offences they to deal with individual cases based on their
purport to cover were already punishable own subjective features, and can lead to
under existing laws dealing with murder and perverse outcomes far removed from the
CRIME & LAW ENFORCEMENT
manslaughter in the Crimes Act. The added intention of the legislation. The real motive
fault element of intoxication of the offender for the legislation is clear: mandatory mini-
does not heighten the seriousness of the mum sentences are better at creating head-
offence, and should not be an aggravating lines for politicians than they are at reducing
factor in determining an individual’s culpa- crime.
bility.
22
Rose Khalilizadeh
BARRISTER, FORBES CHAMBERS
If you could change one breach by using drugs. There may not be
particular section or regulation, “good reasons” for excusing their breach in
these circumstances.
what would it be?
A common view adopted by some courts is
I would amend s 98(3)(b) of the Crimes that drug use is a choice, and therefore “good
(Sentencing Procedure) Act 1999 (NSW) to reasons” do not exist. There are also related
clarify and extend the definition of “good consequences (such as missing appoint-
reasons” for excusing a breach of a sus- ments with Community Corrections). How-
pended sentence. ever, that same offender may engage in re-
habilitation subsequent to the breach, move
Why does this section or to a drug-free residence, or obtain custody of
regulation need to be changed? children. The law as it stands makes it difficult
for the court to take those steps into account
The Crimes (Sentencing Procedure) Act when determining whether or not good rea-
1999 (NSW) allows a breach of a section 12 sons exist to excuse the breach.
good behaviour bond to be excused when
“
there are “good reasons for excusing the
CRIME & LAW ENFORCEMENT
23
Blake Osmond
LAW STUDENT, UNIVERSITY OF NEW SOUTH WALES
ed pregnancies. It is also a severe breach of recently became one of the first countries to
trust, bodily autonomy and sexual agency. impose a sentence on a man for removing
a condom during sex without informing his
“
partner.
There is no evidence
This proposed tweak is designed ensure the
of any successful law with respect to this issue is unambigu-
prosecutions in NSW ous in NSW. It would send a strong message
to perpetrators: the non-consensual remov-
for stealthing to date. al of a condom during intercourse trans-
forms consensual sex into sexual assault.
24
Amelia Birnie
JURIS DOCTOR STUDENT, UNIVERSITY OF SYDNEY
If you could change one hey J stated (at 355-356) that the words ‘or-
particular section or regulation, dinary person’ could not be divorced from
‘in the position of the accused’ without “un-
what would it be? mistakeable and unambiguous language”.
This cannot be satisfied by the mere re-
I would amend s 23(2)(d) of the Crimes Act moval of words.
1900 (NSW) to expressly include a subjec-
tive element in the ordinary person test for
the partial defence of extreme provocation.
...Gummow J warned...
Why does this section or [a purely objective
regulation need to be changed? ordinary person test]
The then Attorney-General Brad Hazzard would undermine the
said in his Second Reading Speech for principles of equality
the Crimes Amendment (Provocation) Bill
before the law...
“
in 2014 that the removal of the words “in
the position of the accused” from section
CRIME & LAW ENFORCEMENT
25
David Rofe
SOLICITOR, ABORIGINAL LEGAL SERVICE (NSW/ACT)
Many practitioners are of the view that in- fic legislation in one Act and to homogenise
terstate convictions which took place after traffic legislation across the nation.
midnight on 1 July 2013 do not count towards
whether an offence under the Act is a “first of- Given that many legal practitioners, police
fence” or a “second or subsequent offence” prosecutors, and magistrates operate under
because there has been no declaration to what appears to be a misapprehension that
this effect, as ostensibly provided for under interstate traffic convictions do not count
the Act. The power to declare offences which for the purposes of s 9 of the Act, reform is
have taken place in another jurisdiction, for required to have the correct position clari-
the purposes of whether a new offence is a fied through an express provision in the Act.
“first offence” or a “second or subsequent of-
26
Nicholas Cowdery AM QC
ADJUNCT PROFESSOR OF LAW & FORMER NSW DIRECTOR OF PUBLIC PROSECUTIONS
27
Joe Blackshield
SOLICITOR
“
people who are classified as “mentally ill” court costs.
for the purposes of the MHFPA to a mental
health facility. The definition of “mentally ill
persons” includes people who are suffering The practical impact of this is to discourage
HEALTH & SOCIAL WELFARE
a mental illness and, because of that illness, magistrates from diverting cases into the
are a danger to either themselves or others. mental health system under s 33 for fear
As s 33 is not currently present in the list at that diverted persons will only receive tem-
s 42 of the MHFPA, there is no requirement porary care and support.
for the Mental Health Tribunal to review the
Community Treatment Orders of people re- This tweak would encourage magistrates to
leased under s 33 when the relevant orders divert appropriate cases, prevent mental-
expire. This means that people who are a ly ill people from being dragged through a
danger to themselves or others are often punitive system, and save substantial court
left without support after their orders, which costs.
cannot last longer than 12 months, expire.
28
Kathryn Ridge
LAWYER, RIDGE LEGAL
commitment to fix this, and have had since form process has stalled since the discus-
2008, and yet in 2017, almost a decade lat- sion paper of 2013. Legislation is proposed
er, there is no Aboriginal Cultural Heritage for the end of 2017 and a public consul-
Act. tation process is underway, but central to
successful legislation is Aboriginal people
The United Nations Declaration on the having the right to speak for that cultural
Rights of Indigenous Peoples provides that heritage, including having the right to say
Aboriginal Peoples have the right to main- no to development that will destroy it. No
tain, control, protect and develop their NSW Government to date has been pre-
own cultural heritage. They have the right pared to stand up for the rights of Aborigi-
to maintain and develop their own deci- nal people to do so.
29
Charles Gregory
BARRISTER, SIXTH FLOOR WINDEYER CHAMBERS
If you could change one In the past, the Governor could set aside
particular section or regulation, farms for settlement leases – over smaller
areas, if the Governor thought the land suit-
what would it be? able for agriculture, and over larger areas, if
they were suitable for grazing. The notice
The deletion of part (b) of clause 3(3) of Part described what the land was suitable for.
1 of Schedule 1 of the Native Title Act 1993 A person then applied for a lease. But the
(Cth). lease never specified if the lessee was pro-
hibited from using the land for agriculture,
Why does this section or horticulture, or cultivation, even if the size
regulation need to be changed? of the farm was huge and the land was de-
scribed as suitable for something like, “the
Settlement leases wholly extinguish native fattening of sheep”. How then does one
title, unless the lease was for grazing or pas- determine if the lease is caught and wholly
toral purposes and, by clause 3(3)(b), it did extinguished native title?
not permit the lessee to use the land or wa-
ters primarily for agriculture, horticulture, or
cultivation.
INDIGENOUS AUSTRALIA
30
P hilip Boncardo
BARRISTER, WARDELL CHAMBERS
Why does this section or Further, government bodies like the Aus-
regulation need to be changed? tralian Building and Construction Commis-
LABOUR LAW & STANDARDS OF CARE
31
Penny Parker
LAWYER - EMPLOYMENT AND INDUSTRIAL RELATIONS, SLATER AND GORDON
If you could change one ply assess the likelihood of the employee
particular section or regulation, taking legal action to recover the amount
in deciding whether or not to rectify the un-
what would it be? derpayment. This places the employee or
the union in a position where their only op-
I would amend the Crimes Act 1900 (NSW), tion is to litigate. Where the underpayment
to create a criminal offence for wage theft. is not a significant sum, litigation is often not
Wage theft should be defined simply as commercially viable. This disadvantages the
“where an employer knowingly pays an em- lowest paid employees, for whom under-
ployee less than what they are entitled to ac- payments have the harshest impact.
cording to law”.
32
Cassandra Taylor
LAWYER, MAURICE BLACKBURN
The Commission’s current power “to make The reality is that bullying usually causes
any order it considers appropriate (other an employment relationship to become
than an order requiring payment of a pe- fractured. As an employment lawyer, I see
cuniary amount) to prevent the worker be- first-hand the profound impact that work-
ing bullied at work” is helpful in situations place bullying can have on a victim’s men-
where a bullying victim wishes to return to tal health. All too often I see clients who
the workplace, or works for a large organ- are so mentally worn down that they are
isation and can be moved to a different on personal leave and are unable to face
working environment. However, the Com- returning to work. These workers should
mission’s inability to order monetary ‘com- have access to meaningful legal remedies
pensation’, coupled with the requirement that do not require them to return to the
that it must identify a future risk of bullying, workplace in which they were bullied, and
means that the anti-bullying jurisdiction es- instead enable them to heal and move for-
sentially fails those who need it the most. ward with their careers.
33
Jack McNally
LAW STUDENT, UNIVERSITY OF NEW SOUTH WALES
34
Keifer Veloso
LAWYER, COLIN BIGGERS & PAISLEY
If you could change one ple, Uber drivers must follow strict protocols
particular section or regulation, when “ride-sharing” (such as the type of car
and routes). They are also prohibited from pro-
what would it be? viding their details to passengers directly and
are required to introduce themselves as Uber
I would amend s 15 of the Fair Work Act 2009 drivers (representing the brand).
(Cth) to insert an intermediate definition of
worker, similar to the definition in s 230(3)(b) This type of contract, where workers pro-
of the Employment Rights Act 1996 (UK). vide services personally and for a single
client/platform, is arguably misclassified as
Why does this section or an independent contractor arrangement. In
regulation need to be changed? many cases, this leaves the contractor un-
fairly exposed to free-market competition.
The rise of the gig economy has shifted a Because of this, they are deprived of the
LABOUR LAW & STANDARDS OF CARE
large amount of the financial risk of con- protections of labour law, such as minimum
ducting business from companies to their terms and conditions, safeguards against
individual contractors. Gig platforms, such capricious termination, and court/tribunal
as Uber, Deliveroo, and Airtasker, have dis- oversight of any significantly unfair contract
rupted the typical working paradigm by terms. In an increasing number of jurisdic-
engaging their workforce as independent tions (such as the UK, Canada, Spain and
contractors rather than employees. Italy), legislators are classifying these types
of workers as ‘dependent’ contractors.
In many cases, however, these contractors
closely resemble employees. They often share By inserting an intermediate definition of
some of the characteristics of employment, worker, we will be able to better and more
including a lack of control over how work is fairly regulate this emerging category of
performed, an inability to build goodwill in work, whilst still retaining the flexibility that
their own business, and an inability diversify attracts both contractor and client to this
risk by engaging multiple clients. For exam- type of relationship.
35
Justin Pen
LAW GRADUATE, UNIVERSITY OF SYDNEY
36
Claire Pullen
DIRECTOR OF ADVOCACY AND EXTERNAL STAKEHOLDER RELATIONS, FAMILY PLANNING NSW
37
Aron Nielson
PRINCIPAL LAWYER, SLATER AND GORDON
If you could change one go all around upon which the FW Act is sup-
particular section or regulation, posedly built.
“
what would it be?
Section 382(b)(iii) of the Fair Work Act 2009 The concept of
(Cth) (“FW Act”). fairness in the
Why does this section or workplace and having
regulation need to be changed? access to protections
The effect of s 382(b)(iii) of the FW Act is
in circumstances of an
to exclude from unfair dismissal protection unfair dismissal should
those persons who earn over the defined
high income threshold . not be predicated on
LABOUR LAW & STANDARDS OF CARE
income.
The concept of fairness in the workplace
and having access to protections in circum-
stances of an unfair dismissal should not be
predicated on income. Fairness and protec-
tion should extend to all in the workplace as
a matter of basic equity.
38
Douglas McDonald-Norman
RESEARCHER, 8 SELBORNE CHAMBERS
If you could change one tection. Asylum seekers must now estab-
particular section or regulation, lish, for example, that they would be at risk
throughout their country of origin – even
what would it be? if it would be unreasonable (or impossible
in practice) for them to relocate from their
I would amend or repeal ss 5H-5LA of the home region to a supposedly ‘safe’ district.
Migration Act 1958 (Cth) (“Migration Act”) This test is contrary to how the Convention
to ensure that the term “refugee” is defined is interpreted by the UNHCR, and in com-
in terms of the Convention Relating to the parative law.
Status of Refugees (“Convention”).
“
MIGRATION LAW
39
Jane Leibowitz
SENIOR SOLICITOR, ASYLUM SEEKER HEALTH RIGHTS PROJECT AT PIAC
“
Detained asylum seekers are suffering with- they need.
out the basic medical care that they need.
Every day, Australia detains close to 1500 An asylum seeker in an Australian immigra-
people in mainland immigration detention tion detention centre has no such legislative
centres. A further 1200 asylum seekers are rights. Despite the high levels of trauma suf-
held in offshore facilities. While the average fered by asylum seekers and the damage
length of immigration detention is 32 days in to physical and mental health caused by
MIGRATION LAW
40
Kirk McKenzie
PARTNER, HAYLEN MCKENZIE
size fits all” approach to penalty. This section prohibition against arbitrary detention con-
has been strongly criticised by judges and tained in Article 9 of the ICCPR. Another rea-
academic commentators. son for repealing this unjust provision is that it
has been used by the Coalition as a precedent
Noting Australia now has a position on the for its attempts this year to impose mandatory
UN Human Rights Council, the section also minimum sentences for firearms trafficking
breaches international human rights laws and teenage sex crimes including “sexting”.
which Australia has ratified.
41
Michael Hall SC
SENIOR COUNSEL, NIGEL BOWEN CHAMBERS
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Evan James
BARRISTER, GARFIELD BARWICK CHAMBERS
If you could change one meaning that if the dog is declared dan-
particular section or regulation, gerous, all the restrictions imposed by the
regulations come into force, and the dec-
what would it be? laration can only be challenged by appeal-
ing the matter to the Local Court. This can
My legal tweak would be to the Companion force owners who have owned dogs for
Animals Act 1998 (NSW) (“Act”), s 36, and extensive periods of time to either have to
the associated regulations. give the dog up, or have it put down if they
can’t comply with the relevant regulations,
Why does this section or or if they are unable to afford to bring any
regulation need to be changed? appeal to the Local Court.
Everyone agrees that the freedom to have I would like to see s 36 (and the associated
pets brings with it the need to have guide- regulations) changed so council officers
PROPERTY LAW & ANIMAL OWNERSHIP
lines and rules in place about how those can determine, with a greater degree of
pets should be cared for and managed. discretion, which regulations are appropri-
Currently, in the case of dogs who may ate to impose in each case, and the time
be declared “dangerous” or “menacing” - limit for any restrictions imposed, to bring a
whether it’s due to their particular breed or degree of common sense into the process.
because they have acted aggressively in
some way or another – it is the relevant local
council authorised officer which declares,
or proposes to declare, a dog dangerous or
menacing under the Act. This process sub-
jects both the dog and its owner to various
restrictions and regulations about how that
dog can be walked and kept, for example.
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A recommendation
they’ll remember.
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Our team have the experience, expertise and
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National Head of Employment Law
Maurice Blackburn
44
These are important years in our national and social development.
They are years in which we are shaping not only our own but the
destinies of generations to come. They are years of enlightenment and
evolution. Of major change and progress. In whatever is taking
place Labor has its part to play. It is a major role, one of the very
first importance. But how can we, as a party, stand up to these grave
responsibilities and play our part, capably and well, unless we are a
united party – a united force for the good of all the people? It has
always been in times of political stress and challenge that Labor
has shown its greatest strength That strength has come from unity
within the party – unity in the industrial field, unity in the political
field – and unity as between these two very important components…
45