of a to is a eriod preseview adoption le subject h 3 year p e Guardianship tomatic r 7 (NSW) e p c u 8 s o a 9 o e A e 1 p p m Den g th nage ror the ry fro imilar er makin

e ibunal fo k tly only p ancial ma eriods va ovision s r ft n r n p a T e p fi , s s r n h w r be n to ss t l wo toria revie ers by jurisdictio the order unle ers additiona vides for to the Vic ment ord m a n l a il d m tise w n e or ial the jurisdictio nt Tribunal the chang t of financ one: allowing T s r s e s a e d st in e h y to u . r s t e s q o 61. Rea gement most fre pportunit otherwis ucreate, so be a o , le y , ib ll d a g aw The Trib iews will ing annu test an or ere an eli n ment ) v e n h 2 e b o ( r w c t n l gs a ation t any w th ibuna freque ful and erson brin r the least 1) The Tr t a nd to sho nal may a t a meaning p ( a t . n e ir e a v f fi m loy n fo ally duc duc ums every time con t of procedur nd applicatio iews must con t of a their circ l being ia r t s u g e n d v n e in assessm have chan view. Re ears. assessme would am e e y e s r I r r e o ls a e r d il ma Civ hip o ceps. Ben ly fo any order his the NSW ct to are the ex rule. guardians sufficient l a id s in in n t m o e A crim it under review c er to be v n, not th ocedure r or an ad :y r d e A io r b P t d o r e e e ic m iv mat er th upre rdian d. order he Un ers wheth nage- Act. Auto give the S r to Most gua istration or revoke h t u o n S a 2 l io 1 m we lat gi New s wil financial Court po -pres ship legis alia (a) within course, le s review the acd e e n r r y r t e e c s onths aft der, amendmen cross Au ment ord ed, improve order the a m o t d f u n f o r a e d ld am ing the o vides for be amend ed countability rs, application o k o a o r t p m this regar ip f h e u u s o g n s in ib a t r ib ia n w n r T a d t ie e uar d, co e eno private m and the undis is a matic rev nunless th ) varie ced sub- not b r W e S h t t N y a n t ( o r e m s 7 a S l r 8 m g 19 or repla govern Ben Fo financia nal orde the New ii. d v n s n o e r e r e o e t D c p d s u at or go sert a to any private tr nd fi- barrister agement wise; and t Wales u- ject w a a , s , ie g r e ic v e s r e in t a a b r s c ir s e m u r y ic ie a t t wi n req in an ns or n Ch mpan Automa ers, ma om (b) in men t ws of tio , or revoked co g r e h f a ie it is n y v t a r e w r a r e e m v p c l ic s x t n ma nancia with e period least o adequa e- tions er. d e g v a io o r n r o e in a t p p t s m n r e im l a inter res ancia ogeth and will jurisdictio the each 3 ye of and al law, e and very alt e h e t c s n r g e n ie in d r io r k e t a o p ent rimin the ex jurisdic after m Guardi n t roct to c (as a the n p io s je s t e r s b a u a ld u le e q u in s e y n o r u f le 2 im w r t r p I to orde Tribun e t mos e- disc of a peo g n , s a e Th n y r n e ll . m a io ) a d t y r u m p m lo o n l o u l p n d se a ancia ing a ibuna minim law, em additio Act po ilar fin orders by strial be ast frequent Tr wise. ip u im h s d s n n in ia io d d is n r t Gua prov men law a the le other the ch uen also torian y five hem an W) presB ib t r S r . ic e s g T N v V n ( e e in e 7 io g h w t 8 t Th o in 9 la ) 1 to all re be (2 create al oto y in r n p y a im it t ly r n a c n u s t o y r e a . ears ently one: oppo teach nal m revie niver- y order sessct a eviews U s r u n a r e d a e h n t fo t R s o . t s e c a 1 e t e 6 n vid co mea - tim at law New South anf id h o t s m t n l w n o ia o e c c h m s n w s a s nd to ity of of fin ment A revie reasse proc stanc- s unal a the ade rdersT ib m r o r m e u t T c r h t n e e ir e e . d c s h r m Th o ir le w e ag (1) the Wa ers any Iw ta anageeligible r this mend hanged m e a c l d e ia ld n v c t conduc u u a s n o h u a it w s n where an y m the t of a e ciently for the I tic gs an nship fi t order needs b a n in e ia m r d o m b r t s a s u n u e o A s s G s per rea suffi the men Act. Pr ded, l n for hip orNSW) e varied s ( n il b io e n t 7 w o a 8 ia m t s c 9 a d r li w r 1 e e p a t ie d b p u c r v a g o A to re gi cdmin. Of tinued provieviews rove the a p ried, con er or an a r:r revoked tive to insert a a review. R d o v im C subing isla rde cep y of g d o ir x it e e u le il n c , q e b e la e io a h t s r t p t r a e n r n e u r t r u a is co sio iews or ndi- co te managers, o the rule. ndment in within 12 matic rev to any co e o t ) t c a m u tion, not ( a a je priva a ial will tions govc rdianfter d a a r u a s g g n h e a t t r s n n o o fi M m this of lation he order, e enough b t o ship legis alia making t n manageu h ib t r r u t T s o e S u New less th across A ment uto- un ders other- the governa r fo s e provid nal or Wales ws of ie v d e n r a ; ic t e ma wis manl ia c n a n fi

LEGAl TWEAKS
that would change NSW and the nation
Legal Tweaks that would change NSW and the nation | 1

FOREWORD
Edited by Hannah Quadrio Published by the New South Wales Society of Labor Lawyers The New South Wales Society of Labor Lawyers aims, through scholarship and advocacy, to effect positive and equitable change in the substantive and procedural law, the administration of justice, the legal profession, the provision of legal services and legal aid, and legal education. Copyright 2012 New South Wales Society of Labor Lawyers Inc. (INC9896948)

Our thanks goes to all those who have contributed to this publication, and to the lawyers before them who built the modern labor party and imprinted social justice on our national identity. Special thanks to our sponsors: Maurice Blackburn Lawyers, who carry on the great legacy of Maurice McCrae Blackburn, a champion lawyer and federal labor member.

2 | Legal Tweaks that would change NSW and the nation

important question - If you could change one particular section or regulation, what would it be, and why? Looking at how the law is working, whom it is affecting and how it can be improved is an exercise that must be undertaken not just by Government but by legal practitioners that work in the field every day.

ForEWord

from the Commonwealth Attorney-General, Nicola Roxon

or our laws to be effective they must keep pace with our rapidly changing society. Keeping the law reform conversation alive between practitioners, academics, service providers and governments is integral to this process. I congratulate the New South Wales Society of Labor Lawyers on the publication of Legal Tweaks that would change NSW and the nation, for making an important contribution to this ongoing discussion. This publication asks a simple but

This publication is a practical demonstration of independent voices putting forward their views about whats working, and what isnt, in the NSW and national justice systems. Of course governments must also weigh up priorities and implications of proposed reforms changes that may look attractive on paper may not work well in practice. So while I may not agree with every proposal in Legal Tweaks, the fact that so many people are willing to put forward their ideas demonstrates the strength of the society in which we live. I commend the NSW Society of Labor Lawyers for getting the conversation started. May robust debate ensue! The Hon. Nicola Roxon MP Commonwealth Attorney-General

The NSW Society of Labor Lawyers recognises that elected members of parliament are in the best position to propose and achieve legislative change. We want to enhance elected members practical understanding of how the law is working, whom it is affecting and how it can be improved. To that end, we asked people from across the legal profession this simple question: If you could change one particular section or regulation, what would it be, and why? The legal practitioners profiled in this booklet are not all members of the Labor Party, or of the NSW Society of Labor Lawyers. But they share the Societys desire to see sound, progressive law reform. This publication is a way for us to share their insights on how the law can be changed tweaked simply and effectively, for the benefit of the wider community. Hannah Quadrio Vice-President NSW Society of Labor Lawyers

EDITORS NOTE
his publication aims to encourage conversation between Labor members of parliament and members of the legal profession who support progressive law reform.

Legal Tweaks that would change NSW and the nation | 3

Ben Fogarty
Introduce automatic reviews of financial management orders

would amend the Guardianship Act 1987 (NSW) to insert a provision requiring automatic reviews of financial management orders every 1 to 2 years (as a minimum). The Guardianship Act 1987 (NSW) presently only provides for reviews of financial management orders where an eligible person brings an application for review. Reviews are the exception, not the rule.

(a) within 12 months after making the order, unless the Tribunal orders otherwise; and (b) in any case, at least once within each 3 year period after making the order unless the Tribunal orders otherwise. (2) The Tribunal may at any time conduct a reassessment of any order made by it under this Act. Automatic reviews will improve the accountability of private managers, government and private trustee companies and financial managers, and will improve the experience of people subject to financial management orders by allowing them an opportunity to contest an order and to show that their circumstances have changed sufficiently for the order to be varied or revoked. Of course, legislative amendment in this regard will not be enough the New South Wales government will need to adequately fund and resource the Guardianship Tribunal for the additional work the change will create, so that reviews will be meaningful and procedurally fair.

Most guardianship legislation across Australia provides for automatic reviews of financial management orders1. Automatic review periods vary from jurisdiction to jurisdiction the most frequent being annually, the least frequent being every five years. A review considers whether the financial management order needs to be amended, varied, continued or replaced subject to any conditions or restrictions, or revoked altogether. I would propose adoption of a provision similar to the Victorian one: 61. Reassessment (1) The Tribunal must conduct a reassessment of a guardianship order or an administration order:

Ben Fogarty is a barrister at Denman Chambers, with expertise and interest in criminal law, discrimination law, employment law and industrial relations. Ben also teaches criminal law at the University of New South Wales.
1 ss26-32A Qld Act; s25P NSW Act; s36 SA Act; ss84-90 WA Act; s19 ACT Act; s67 Tas Act; s61 Vic Act, and s7 of the Aged and Infirm Persons Property Act (NT).

4 | Legal Tweaks that would change NSW and the nation

Ben Slade
Give the Court power to order the cy-prs application of undistributed funds

Darren Jenkins
Restore costs consequences for local court litigants who refuse offers to settle

would amend the Civil Procedure Act 2005 (NSW) to give the Supreme Court power to order the cy-prs application of the undistributed part of a fund created by a defendant to reimburse injured group members. Cy-prs is an old Norman French term meaning as near as possible and is used in US class actions as the name of a fund into which damages must be paid when the class of persons who have suffered measurable loss by anothers wrongdoing cannot be found. The fund would then distribute its gains for the common good. An example might be when a particular bank fee is held to be an extravagant penalty that should be, at least in part, refunded to those who paid it. If all those who paid it over the 6 years prior to the application being filed cannot be found, the bank should have to pay the overcharge into the cy-prs fund. The court could establish the fund as a trust fund with trustees charged to distribute the funds for the benefit of consumers of finance through counselling services and consumer education, for example. This amendment has been proposed previously, by the then Labor Government in 2010, but did not make it into law. It is a shame that this happened as the community would benefit greatly if wrongdoers were forced to disgorge their ill-gotten gains.

ule 2.9 of the Local Court Rules 2009 (NSW) should be amended to restore the costs consequences that can flow to litigants who refuse a reasonable offer of compromise.

Legal costs in the Small Claims Division of the NSW Local Court are capped. Magistrates and Assessors sitting in that Division have no discretion to award costs above the meagre statutory limits, even when offers of compromise have passed between the parties. This restriction reduces the incentive to settle proceedings early and means a party who is willing to compromise cannot recover the additional expenses they incur after their offer is refused. A tweak to Rule 2.9 of the Local Court Rules 2009 would reinstate the operation of the offers of compromise scheme under the Uniform Civil Procedure Rules and give Magistrates and Assessors power to award further costs against parties who unreasonably refuse offers of compromise. Where a party does no better than an offer made to them, the offering party should be entitled to their costs on an indemnity basis after the time the offer is made. This tweak is consistent with the Small Claims Divisions focus on conciliation and would return an important incentive to settlement where it is needed most.

Ben Slade is the Managing Principal of Maurice Blackburn NSW.

Darren Jenkins is a barrister practising in Commercial and Equity matters in NSW.

Legal Tweaks that would change NSW and the nation | 5

Dr Elisabeth Peden

Remove confusion caused by obscure contracts legislation

would change sections 10 and 11 of the Frustrated Contracts Act 1978 (NSW).

In over 30 years only a handful of judgments refer to the Act. Parties typically exclude it from their contracts, because of its intricacy. Law schools rarely teach its operation. Section 10 operates in a way that is far from clear where there has been full performance prior to the frustrating event (Carter, Peden, Tolhurst, Contract Law in Australia, 5th edition, paragraph 34-17). A defendant will bear the whole loss caused by a frustrating event, seemingly contrary to the legislations purpose of apportioning loss.

Section 11 applies to partial performance prior to frustration, and entitles a performing party to the attributable value of the work and of the amount by which attributable costs exceeds attributable value. In all other cases the performing party receives attributable value. Complexity is increased because attributable value and cost are defined by reference to other defined terms of incidental gain, lost value, proportionate allowance and reasonable cost. It is difficult to believe that the Act is, in the majority of cases, an improvement on the common law.

Dr Elisabeth Peden is a Barrister and Professor of Law (contract, commercial, equity and property).

6 | Legal Tweaks that would change NSW and the nation

Philip Boncardo
Recast the rule for circumstances when equity will intervene to set aside a transaction

he rule in Yerkey v Jones, that a wife, who is a surety for a debt taken on by her husband, is in a special position of vulnerability vis--vis a lender is outmoded and in need of tweaking.

understand the transaction; (c) The lender failed to take steps to notify the wife of the transaction. The rule is artificial, confining itself to one gender, one sexual orientation and one species of relationship of potential vulnerability and dependence. It is also anachronistic, being premised on stereotypes of married women as agentless appendages to their husbands. The principle should, however, not be expunged or discarded, but recast in a non-discriminatory and encompassing manner. I suggest that a non-discriminatory rule would be as follows: Equity will intervene to enable a surety to set aside a transaction where: (a) The surety has become a surety, as a result of the exercise of undue influence or other unconscientious behaviour by a person whom they are in a relationship of dependence with; and (b) The lender knew, or ought reasonably to have known, that the surety was in a relationship of dependence, such as a de facto relationship or other domestic relationship, and did not take reasonable steps to ensure that the persons consent was fully informed.

The rule provides that equity will allow a wife, who guarantees a debt or liability of her husbands, to avoid the transaction if the suretyship was procured: (a) By the exercise of actual undue influence by the husband; (b) In circumstances where the wife did not understand the purport and effect of the transaction. In the former case, the creditor can enforce the transaction only if the wife was afforded independent advice; whilst in the latter case, the creditor has to take reasonable steps to explain the nature and effect of the transaction to the wife. It is said to be contrary to conscience to allow a creditor to enforce its right in these circumstances because: (a) The wife is a volunteer; (b) The lender ought to have known that the relationship of marriage is one of trust and confidence, such that the wife would likely have reposed complete faith in the husband and not sought to question or

Philip Boncardo is a solicitor at Campbell Paton & Taylor in Orange.

Legal Tweaks that would change NSW and the nation | 7

Theodora Ahilas
Allow an estate to commence proceedings seeking damages for asbestos related disease

Michelle Hannon
Remove the threat of an adverse costs order for victims of discrimination

eneral damages cease to be available when a person diagnosed with an asbestos related disease does not commence proceedings in their lifetime. Sometimes from date of diagnosis to death it is a very short time with a very small window of opportunity to commence proceedings. A (12 month) window should remain open by legislative intervention to allow an Estate to commence proceedings and recover full damages including general damages.

would make the Federal Magistrates Court a no costs jurisdiction for discrimination matters. This is because the threat of a potential adverse costs order discourages many victims of discrimination from pursuing their claims and seeking proper redress for the discrimination they have suffered even when they have very strong claims. Victims of discrimination are usually from marginalized and disadvantaged groups and suffer discrimination because of that. While pro bono assistance is often available to them, so many are denied the opportunity of redress because they cannot risk the little they have being taken through an adverse costs order.

Ms Theodora Ahilas is the Principal of the Asbestos Dust section of Maurice Blackburn.

Michelle Hannon is the Pro Bono Partner at Gilbert + Tobin.

8 | Legal Tweaks that would change NSW and the nation

Kate Eastman
Ensure that NSW legislation is interpreted consistently with human rights

would change section 33 of the Interpretation Act 1987 (NSW) so that legislation in NSW should be interpreted not only to promote its purpose and objects, but also to promote human rights.

In 2001, a NSW Parliamentary Committee concluded that it was not in the public interest to have a NSW bill of rights. Eleven years on, there is no prospect that NSW will have a bill of rights anytime soon. However, there are many NSW statutes that have a direct impact on the human rights of people in NSW. In the absence of a bill of rights, one means of protecting human rights is to ensure that legislation is interpreted in a manner that protects and promotes the rights contained

in international human rights treaties, ratified by Australia. The United Kingdom, Victoria and the ACT have such a requirement in their respective human rights acts. In these jurisdictions, judges must turn their minds to human rights standards when interpreting all statutes. The requirement to interpret provisions of a statute consistently with human rights has resulted in a greater awareness of human rights and a sensitivity to how a particular interpretation may impair an individuals human rights. The proposition is simple - find an interpretation that favours human rights, rather than one that does not.

Kate Eastman is a Barrister practising in the areas of human rights, discrimination and public law.

Legal Tweaks that would change NSW and the nation | 9

Jane Needham
Decriminalise commercial surrogacy

would recommend the revocation of Part 2 Div 2, and ss 23 and 24 of the Surrogacy Act 2012 (NSW), which criminalise commercial surrogacy arrangements, and prevent surrogate children being the subject of parentage orders. We live in a world where families come in many shapes and sizes, shades of colour, and degrees of difficulty. Surrogacy which of necessity includes commercial surrogacy allows people, gay and straight, to have children where that may have been impossible. It is contrary to general community values to criminalise having a child. Part 2.2 of the Surrogacy Act does just

that. In addition, the Surrogacy Act has extraterritorial operation (s 11), affecting overseas surrogacy arrangements, and provides (by s 23) that if a child is born of a commercial surrogacy arrangement he or she may not be the subject of a parentage order, effectively requiring that the child will never officially become a legal part of the family which brought him or her into existence (see s 39). Repeal in particular of s 23 will ensure that s 22 that the best interests of the child are paramount will be able to be given full force and effect in all surrogacy births, not just those births in which the birth mother was able to provide her services altruistically.

Jane Needham SC is a senior counsel practising in equity, succession, land law, administrative law and revenue.

10 | Legal Tweaks that would change NSW and the nation

Michael Cooley
Allow copyright for computer generated works

would amend the Copyright Act 1968 (Cth) (Copyright Act) to provide for the existence of copyright in computer generated works.

Under the Copyright Act,copyright vests in literary, dramatic, musical and artistic works as well as in other types of works described in the Copyright Act as subject-matter other than works. Subject-matter other than works includes sound recordings and cinematograph films.

Following the decision of the High Court in IceTV,1 in order for copyright to subsist in a work it is now essential to identify the human author of the work. The decision of the High Court in IceTV represents a major departure from the previous Australian law in which courts have been prepared to proceed on the basis that, irrespective of the extent to which computers played a part in the creative process, they were ultimately merely a tool of a human author. In todays digital age, where computers are used extensively in the creative process, the decision in IceTV represents a major challenge to copyright owners who will not always be able

to identify a human author in the way required by the High Court. This has been borne out in several subsequent decisions of the Federal Court, in which different judges of that court have held that copyright has not subsisted in various works because of a lack of a human author. It is interesting that whilst those same courts are finding that copyright does not subsist in computer generated works they are also expressly acknowledging that if the same works had been produced by human beings, they would be protected by copyright. There is no sound policy basis for this distinction, which has effectively been read into the Copyright Act by the High Court. This is particularly so when there is no equivalent requirement for subject-matter other than works. Further, there are specific protections afforded to computer generated works in other commonlaw countries such as the United Kingdom, New Zealand, Ireland, Hong Kong, India and South Africa. Equivalent protections need to be urgently included in the Australian Copyright Act.

Michael Cooley is a lawyer in the Intellectual Property team at Gilbert + Tobin. Michael was a former adviser to each of John Faulkner and Joseph Ludwig (in their former roles of Cabinet Secretary and Special Minister of State) and Kevin Rudd (in his former role as Prime Minister).

IceTV Pty Ltd v Nine Network Pty Ltd (2009) 239 CLR 458

Legal Tweaks that would change NSW and the nation | 11

Stephen Free

Require administrators to give reasons for decisions

would recommend the introduction of a statutory right to reasons for administrative decisions made under NSW legislation.

In NSW there is no general duty on the part of public administrators to provide reasons for decisions made under legislation. The common law does not require the provision of reasons and there is, at present, no general legislative requirement to provide reasons. Administrative decisions can have a very significant impact on the rights, interests and wellbeing of citizens. People who are individually affected by administrative decisions have a powerful and

understandable desire to know the reasons for such decisions. The provision of reasons for a decision, when requested, would assist an affected person in understanding the basis for the decision and determining whether or not it is open to challenge. An obligation to provide reasons is also conducive to good decision making and clear, analytical thinking within the bureaucracy. Despite the concerns of public administrators prior to the enactment of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the introduction of a general statutory right to reasons at the Commonwealth level did not cause the sky to fall.

Stephen Free is a barrister at Eleven Wentworth Chambers, specialising in administrative, constitutional and regulatory matters.

12 | Legal Tweaks that would change NSW and the nation

Kirk McKenzie
Repeal the new consorting offence

Mark Ierace
Ensure that no citizen can be extradited to a foreign state that does not follow fair trial procedures

ection 93X of the Crimes Act 1900, the new consorting offence, should be repealed.

If you consort, say by sending a text message, to two indictable offenders on two occasions, you may receive a police (oral!) warning. If after that you communicate with one of the offenders, you may be charged with "habitual consorting"- 3 years imprisonment. Section 93Y allows a defence for a few categories including family members and lawyers, but they can still be charged. This offence involves several breaches of Australias human rights obligations under the ICCPR: 1. Article 22 - freedom of association. 2. Article 14(2) - the presumption of innocence. Family members and others, including lawyers, have the onus of proving their defence that the association was "reasonable in the circumstances". And query 3. Article 14(3)(b) the right of an accused to communicate with counsel of his own choosing. 4. Article 14(3)(d) the right of an accused to have legal assistance of his own choosing. Is this unconstitutional because it may hinder or prevent a lawyer acting for an accused in a trial?

would amend the Extradition Act 1988 (Cth) to require the relevant Australian government minister, before authorising extradition, to be satisfied that any trial of the person to be extradited will be in accordance with fair trial procedures enshrined in Article 14 of the UN International Covenant on Civil and Political Rights.

The Extradition Act limits the grounds on which an Australian may challenge their extradition; such as that the offence is political, or that at any trial the person may be prejudiced by their race, religion, nationality or political opinions. However, there is no requirement in the Act that the foreign state comply with a basic, internationallyaccepted, notion of a fair trial of the person to be extradited. It would be unthinkable, for example, for a person to be put on trial in Australia for a serious offence where there is no admissible evidence of guilt, such as no living witnesses to the alleged crime, no forensic evidence tending to incriminate the suspect and no confessional material of the accused. That would also be inconsistent with the requirements of Article 14, but as the Act presently stands, an Australian cannot challenge their extradition on that basis.

Kirk McKenzie is a Solicitor, a member of the Human Rights Committee of the Law Society of NSW and Chair of NSW Labors Review Tribunal.

Mark Ierace is the NSW Senior Public Defender, former Prosecutor at the UN ICTY and a Senior Research Fellow in International Criminal Law at UNSW.

Legal Tweaks that would change NSW and the nation | 13

Sharmilla Bargon
Adopt a broad definition of "domestic relationship" for victims compensation claims

would amend the Victims Support and Rehabilitation Act 1996 (NSW) so that Aboriginal people and Torres Strait Islanders can claim victims compensation for injuries suffered as a result of domestic violence based on a culturally appropriate definition of domestic relationship.

Although the Crimes (Domestic and Personal Violence) Act 2007 (NSW) is referenced by the Victims Support and Rehabilitation Act 1996 (NSW) for the purposes of defining personal violence offence, the broad definition of domestic relationship in the Crimes (Domestic and Personal Violence) Act 2007 (NSW) is not similarly adopted by the Victims Support and Rehabilitation Act 1996 (NSW). The Crimes (Domestic and Personal Violence) Act 2007 (NSW) defines domestic violence offence as a personal violence offence committed by a person against another person with whom the person who commits the offence has or has had a domestic relationship. A person is determined to have a domestic relationship with another person if the person, in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous

kinship system of the persons culture. Relative is defined broadly in the Crimes (Domestic and Personal Violence) Act 2007 (NSW) to include cousins, aunts and uncles. In contrast, to make out a successful claim for victims compensation in NSW for domestic violence, the relationship between a claimant and his or her attacker must fall within a narrow understanding of domestic relationships that ignores the notion of family as often understood by Aboriginal people and Torres Strait Islanders. This limits the options available to victims of domestic violence to claim for their injuries. The Victims Support and Rehabilitation Act 1996 (NSW) is beneficial legislation and is used to grant benefits to people otherwise unable to recover compensation for injuries done to them. This act should be amended to expand the definition of domestic relationship to better allow Aboriginal people and Torres Strait Islanders to claim compensation for injuries suffered as a result of domestic violence based on a culturally appropriate definition of domestic relationship.

Sharmilla Bargon is a solicitor in Gilbert + Tobins litigation group. As part of her pro bono practice, Sharmilla has worked with both claimants of victims compensation and with those objecting to orders for restitution.

14 | Legal Tweaks that would change NSW and the nation

Miiko Kumar
Clarify the rules governing the admissibility of expert opinion

would amend the Evidence Act 1995 (NSW) and (Cth) so that it is clear that the common law basis rule (or proof of assumption rule) is not a requirement that governs the admissibility of expert opinion. I would amend s 80 so that it specifically abolishes the basis rule (or proof of assumption rule) in the common law. At common law, the basis rule requires the facts upon which an expert opinion is based to be proved by other evidence in order for the expert opinion to be admissible. Section 79 of the Evidence Act governs the admissibility of expert opinion and its text does not require the factual basis for an opinion to be established by other evidence. In recommending the uniform evidence legislation, the Australian Law Reform Commission expressly intended that the basis rule would not be a requirement under the uniform scheme (ALRC 26 [705]). However, in NSW it has been stated that the basis rule is a requirement of admissibility (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705). The Federal Court has held

to the contrary (Sydneywide Distributors v Red Bull Australia (2002) 55 IPR 354). A recent High Court decision on expert evidence did not resolve this conflict. In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, Heydon J (in dissent and obiter) found that the basis rule is a common law rule that survives under the Evidence Act because it has not been specifically abolished by legislation. The plurality did not consider whether the basis rule continues to apply in addition to the requirements in s 79 to expert evidence tendered under s 79. Cases in NSW after Dasreef have gone both ways.1 Certainty in the law would be achieved by amending s 80 so that it abolishes the basis rule and is consistent with the ALRCs clear intention not to have such a rule. Objections to expert evidence on the ground of the basis rule can take significant time. The lack of evidence to prove the factual basis of an opinion should be a matter that affects the relevance of the opinion or its discretionary exclusion (ss135 or 137) or its weight.

Miiko Kumar is a Barrister and lectures in evidence and procedure.

Some NSW cases have held that a lack of evidence to prove the factual basis of an opinion is relevant to the weight of the opinion: Smith v Brambles [2011] NSWSC 963 (26 August 2011) [77] (Schmidt J); Gilham v R [2012] NSWCCA 131 (25 June 2012) [186] (McClellan CJ and CL, Fullerton and Garling JJ). In contrast, Heydon Js position in Dasreef has been approved: Cooper v The Queen [2011] NSWCCA 258 (5 December 2011) [193] (Beazley JA with Hidden J and RA Hulme J agreeing); Bone v Wallalong Investments [2012] NSWSC 137 (23 February 2012) [23]-[25] (McDougall J).

Legal Tweaks that would change NSW and the nation | 15

George Williams

Achieve a Constitutional prohibition on racially discriminatory laws

would change section 51(xxvi) of the Constitution, which still provides for the possibility that the Federal Parliament may pass laws that discriminate against people on the basis of their race. This power was put in the Constitution in 1901 to prevent Asians, Pacific Islanders and other races from living in areas reserved for whites or from taking up certain occupations. The power was extended to Aboriginal people by the 1967 referendum. Sir Edmund Barton, later Australias first prime minister and one of the first members of the High Court, made the position clear when he told the 1897-98 constitutional convention

that the races power was necessary to enable the Commonwealth to regulate the affairs of the people of coloured or inferior races who are in the Commonwealth. Separating people according to their race is based upon a discredited 19th-century sctientific theory in which a persons race can determine everything from their intelligence to their suitability for certain roles. Unfortunately, this thinking remains embedded in Australias constitutional DNA. Surely it is time that Australia achieved a Constitution that prohibits, rather than expressly permits, discrimination on the basis of race.

George Williams AO is a Professor of Constitutional Law. Anthony Mason Professor Scientia Professor Australian Research Council Laureate Fellow Foundation Director, Gilbert + Tobin Centre of Public Law The University of New South Wales

16 | Legal Tweaks that would change NSW and the nation

Ghassan Kassisieh
Hold private educational authorities to account for discriminatory behaviour

would repeal all sections in the AntiDiscrimination Act 1977 (NSW) which provide that anti-discrimination obligations do not apply to private educational authorities1.

Private educational authorities are permitted under NSW law to discriminate against students, prospective students and employees, including teachers, on all protected grounds except race. However, because of the protection afforded by Commonwealth anti-discrimination law in areas such as disability, sex and marital status, it is mainly gay, lesbian, bisexual and transgender students and teachers that are particularly vulnerable. These people have no discrimination protection at any level as there is no specific federal anti-discrimination law prohibiting discrimination on the basis of sexual orientation, gender identity or intersex status.

appointment of people within their organisation and any act or practice which conforms to the doctrines of their religion or is necessary to avoid injury to the religious susceptibilities of adherents of their religion (s 56(c)-(d)). The NSW Court of Appeal has adopted a very broad view of this exemption resulting, in that case, in a same-sex couple being lawfully refused the right to apply to become foster carers by a publicly-funded foster care agency run by the Wesley Mission (OV v Members of The Board of Wesley Mission Council (2010) 79 NSWLR 606). The difference between the religious exemption and the private educational authorities exemptions is that the former acts as a defence which must be proven. The latter simply removes protection without requiring the organisation to justify in any way why it is necessary for it to discriminate. For non-religious independent schools, it allows discrimination without any legitimate alternative claim at all. If schools wish to discriminate, they should be required to justify their behaviour on some reasonable basis, particularly as independent religious and nonreligious school become increasingly publiclyfunded. School is a formative part in the lives of future Australians and any school which wishes to discriminate on any basis should be made to account. The least we can guarantee the next generation of Australians is the promise of a more equal place at the starting line of life.

According to 2007 data from the ABS and NSW Department of Education and Training, approximately two-fifths (43.5 per cent) of schools in NSW enjoy a near complete exemption under the NSW Anti-Discrimination Act and approximately one-third of the states full-time students (34 per cent) and teaching staff (36 per cent) enjoy less discrimination protection than their counterparts at public schools. Religious bodies, including schools, already have a separate exemption relating to the

Ghassan Kassisieh is a lawyer at Gilbert + Tobin. His views are his own.

Anti-Discrimination Act 1977 (NSW), ss 25(3)(c), 31A(3)(a), 38C(3)(c), 38K(3), 40(3)(c), 46A(3), 48A(3), 49D(3)(c), 49L(3)(a), 49ZH(3)(c), 49ZO(3) & 49ZYL(3)(b).

Legal Tweaks that would change NSW and the nation | 17

May Samali
Enact new hybrid legal structures to facilitate social enterprise

would expand the range of legal structures that can be registered as Australian companies under section 112(1) of the Corporations Act 2001 (Cth).

and social objectives to be built into the core structure, but the reporting and governance structures can be tedious. Cooperatives are also less understood by investors. Even the Incorporated Association structure (under state legislation), which was developed to accommodate organisations with a social purpose, has significant drawbacks. This structure is best suited to organisations where the social mission is more pressing than the possibility for business returns. As a result, it struggles to attract nongrant capital. Therefore, our legislature should enact new organisational forms to overcome the challenges of existing legal structures and to promote and facilitate social enterprise. Currently, entrepreneurs seeking to create hybrid organisations face a tricky dilemma that is, the difficult choice between adopting a non-profit model and adding a commercial revenue stream, or adopting a for-profit model and adding a charitable stream. The law should enact integrated hybrid legal structures that provide both social value and commercial revenue through a single strategy. In other jurisdictions, hybrid legal structures have emerged. For example, in 2005, the UK introduced a new type of limited company, the Community Interest Company (CIC). The CIC provides tax benefits to hybrids that agree to cap their distributions to investors and to designate the remainder of the companys assets for general community benefit. Similarly, more than half a dozen US states have enacted the Benefit Corporation (B Corp) law, which designates a new type of company that must pursue a

Section 112(1) of the Corporations Act 2001 (Cth) limits the types of structures that can be registered as Australian companies to proprietary companies (either limited by shares or unlimited with share capital) and public companies (limited by shares, limited by guarantee, unlimited with share capital, or no liability). However, the range of legal structures on offer does not adequately support hybrid organisations that wish to pursue both profit and a social mission simultaneously: The Proprietary Limited Company structure is attractive to investment and debt capital. But the drawbacks of this corporate form include tax liability, difficulty in structuring in a for benefit clause into the companys constitution, and limited access to grants. The benefit of the Company Limited by Shares structure is that it provides the capacity to offer and hold equity capital. However, as with the Proprietary Limited Company, it is difficult to enshrine the social mission into the structure of the organisation in the long term. The Company Limited by Guarantee structure provides access to earned income, debt capital and grants. But it has high establishment costs and offers no options for equity capital. The Cooperative form enables share capital

18 | Legal Tweaks that would change NSW and the nation

Steven Glass
Repeal provisions that try to limit asylum seekers' access to the courts

would repeal sections 46A(7) and 474 of the Migration Act 1958 (Cth), and a host of other provisions aimed at limiting the right of failed asylum seekers to access the courts.

congestion and delay within the court system. They are bad policy because decision-makers whose decisions are not subject to legal scrutiny are more likely to do a bad job. Refugee lawyers observed a significant deterioration in the quality of decision making by immigration officials in the years prior to Plaintiff M61. More sloppiness and less rigour were evident. (This appears to have been implicitly acknowledged by the government, which consented, without judicial scrutiny, to a remittal of all decisions made in the pre-Plaintiff M61 period.) Court scrutiny does not guarantee that decisionmakers will always make good decisions, but it does help to ensure that applicants will have the opportunity to present their case, and that decision-makers will ask themselves the right question and bring an unbiased mind to their task of answering it, making their decisions only on the evidence and not on extraneous or irrelevant factors.

Attempts to restrict access to the courts are bad law and bad policy. They are also futile because they typically lead to more, not less, litigation. These provisions are bad law because courts tend to be vigilant in guarding against curtailment of their jurisdiction, and are receptive to legal arguments, often creative and arcane, to read down the provision or minimise its effect as the High Court did in Plaintiff S157 and Plaintiff M61. Both cases increased the complexity of the law and led to an eruption of litigation, as lawyers commenced a fresh round of test cases to explore the limits of the new interpretation of the law, and applicants sought to take advantage of their newly discovered right of access to the courts. Both cases ultimately led to more

Steven Glass is a partner in Gilbert + Tobins litigation group, where he runs the firms pro bono refugee practice.

general public benefit in addition to seeking profit. In some states, shareholders or other stakeholders may bring benefit enforcement proceedings if the directors fail to pursue a public benefit. The flexible purpose corporation in

California, a newer variant of the B Corp, pursues a specific public benefit beyond the strict interest of the shareholders. Australia can learn from these overseas developments.

May Samali is a lawyer at Herbert Smith Freehills and the Chief Branch Management Officer at 180 Degrees Consulting Limited. Her views are her own.
Legal Tweaks that would change NSW and the nation | 19

Stephen Odgers SC
Focus the attention of sentencing courts on whether severe sentences actually deter

would add a new sub-section to s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). That section lists the purposes for which a court may impose a sentence on an offender for a NSW offence. The purposes include (b) to prevent crime by deterring the offender and other persons from committing similar offences. That paragraph recognises two traditional goals of sentencing specific deterrence and general deterrence. Many judges justify harsh prison sentences on the basis that they will deter the offender from re-offending or deter others from committing similar crimes. However, available research tends to indicate that specific deterrence does not work, that, in fact, lengthy or repeated imprisonment tends to increase recidivism. Similarly, research tends to indicate that increases in the severity of penalties does not produce a corresponding reduction in crime.

I do not suggest the goals of specific deterrence and general deterrence should be abandoned. Only that sentencing courts consider the evidence and research before they make assumptions about the effect of severe sentences. A new sub-section should be added to s 3A, modelled on s 5(3) of the Victorian Sentencing Act: A court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. Such a provision would focus the attention of sentencing courts on the question whether a more severe sentence was necessary to advance the purposes of specific deterrence and general deterrence.

Stephen Odgers SC is the Chair of the Criminal Law Committee of the NSW Bar Association. He has been a Senior Counsel since 2000 and specialises in criminal law.

20 | Legal Tweaks that would change NSW and the nation

Giri Sivaraman
Expand the powers of the Court to remedy unfair or harsh contracts

Rose Khalilizadeh
Remove mandatory disqualification for driving offences

ection 16 of the Independent Contractors Act 2006 (Cth) deals with orders that a Court can make if a contract or part of a service contract has been deemed unfair or harsh under section 12 of the Act. Section 16(4) specifically states that an order takes effect on the date of the order or a later date specified in the order. The recent decision of Justice Perram of the Federal Court, Informax International Pty Ltd v Clarius Group Limited (No 2) [2011] FCA 934, has confirmed a narrow application of this clause. Despite finding that the contracts entered into by the parties were unfair and that the unfairness existed at the time the contracts were formed, the Court held that any remedy available could only be prospective (under s 16(4)). This meant the applicant was not entitled to any financial compensation for breach of contract. The provision, as currently framed, limits access to justice by drastically reducing the utility of any remedy. This is a cause for concern, as contractors are already afforded less legal protection than employees and do not have the benefit of minimum statutory standards and industrial legislation. To restore access to justice, the clause should be tweaked to the following: the Court may make any order the court considers appropriate to remedy an unfair or harsh contract under section 12.

would remove mandatory disqualification periods for offences under NSW Road Transport legislation.

Mandatory disqualification periods trap offenders in a cycle of offending and further disqualification. Those convicted of, for example, driving while disqualified or suspended, are subject to mandatory disqualification even if there are compelling reasons that could otherwise allow a sentencing Magistrate to impose no disqualification. The tradesperson who needs to drive to maintain an income to support a family, or the carer who needs to drive an ill child to school, can be disqualified unless the sentencing Magistrate decides to give the offender the benefit of no conviction. However, recording no conviction is often deemed as an inappropriate sentencing option, particularly for a repeat traffic offender. This is why we see courts clogged with repeat offenders, some of whom face custodial sentences as a result of being trapped in the cycle of mandatory disqualification and almost unavoidable re-offending. There needs to be some reprieve for these people, including the abolition of mandatory disqualification and an avenue through which offenders may apply to have their disqualification period removed.

Giri Sivaraman is the Principal of the NSW Employment and Industrial section of Maurice Blackburn.

Rose Khalilizadeh is a criminal defence solicitor.

Legal Tweaks that would change NSW and the nation | 21

Carolyn Jones

Remove provisions criminalising abortion

he word abortion appears just once in NSW legislation. This is once too often. Repeal of Division 12 of Part 3 of the Crimes Act 1900 is long overdue.

Abortion is one of the most common and safe medical procedures. It is publicly funded, though inadequately. It has majority public support. It is also in the Crimes Act.

womens right to bodily integrity. As recently as 1995 a Supreme Court Justice in NSW stated: sections 82 and 83 of the Crimes Act make abortion illegal.1 In 2010 charges were laid under similar provisions in Queensland. And in 2012 a student union in Sydney funded an antiabortion group. Abortion is a private decision and a womans right to reproductive freedom is recognised internationally. The existence of criminal sanctions is state authorised discrimination against women. The obvious action is the repeal of all abortion laws. Free, safe, accessible abortion on demand would also be a positive change.

The ongoing proscription of abortion is a clear example of legislation being archaic and parochial. Additionally, the provision of guidance in the case law about when an abortion is lawful is not a sufficient shield for the preservation of a

Carolyn Jones is a Senior Solicitor at Womens Legal Services NSW.

Meagher JA in CES v Superclinics (Australia Pty Ltd) (1995) 38

22 | Legal Tweaks that would change NSW and the nation

More Tweaks
Repeal the mandatory sentencing regime for people smuggling offences
The deterrent effect is minimal whilst the strain that is placed on the courts, legal aid organisations and prisons is immense. There being no incentive for defendants to plead guilty, a mandatory financial burden is placed on the tax payer who ultimately foots the bill for the cost of legal representation, lengthy prosecutions and incarceration.

S I

ection 236B(3) of the Migration Act 1958 (Cth) provides a mandatory sentencing regime for certain people smuggling offences. The section should be repealed.

Entrench the RRTs duty to make enquiries

would amend the Migration Act 1958 (Cth) to entrench the duty of the Refugee Review Tribunal to make enquiries (duty to enquire).

While the High Court in Minister for Immigration and Citizenship v SZIAI accepted that the Refugee Review Tribunal might sometimes be subject to a duty to inquire, it pointedly left the issue open. The Court suggested that common law requirements of procedural fairness would not normally support a duty to inquire, although a failure to inquire might give rise to a jurisdictional error in circumstances where the Tribunal had failed to make an obvious inquiry about a critical fact, the existence of which is easily ascertained.

This is, however, limited as courts have repeatedly held that such a duty will only arise in exceptional cases (see SZLGP and Another v Minister for Immigration and Citizenship and Another). The problem with this proviso is that, far too often, courts have deemed that there was no duty to enquire as the matter is not an exceptional one (even though there is no guidance on what exactly it means for a matter to be exceptional). A duty to inquire is important, particularly so where the Tribunal makes adverse findings about the authenticity of a document in circumstances where the author of the document is contactable. The Migration Act should be amended to provide clear guidance on the duty to inquire, and when such a duty will arise.

Make it easier for lay people to navigate the local court system

he functioning of the legal system persists on the basis of a fundamental assumption: that those that avail it, and are the subject of it, understand how it works. Based on my own experience and anecdotal tellings from my friends, there is one place particularly where this is taken too much for granted. The Local Court is where thousands of litigants are dragged into court for a variety of reasons, many of which do not have enough of a financial consequence to justify hiring a lawyer to assist. For all of them, the hustle and bustle of

a busy Local Court, over-flowing with stressed or upset people, is a difficult and very challenging atmosphere. Legal procedures, designed in all good intention to assist with the flow of cases, are more foreign to them than driving in another country. My proposal is to have service staff at the entry. Like banks, whose procedures can be almost impenetrable, courts have an obligation to make clear the procedures they are using to run a more efficient system. Of course, that obligation is amplified by the nature of the rights exercised in the court system. Having service staff at the entry to explain (in a friendly way) what to do and what things mean would encourage people to ask questions and would further improve the flow of caseloads.
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24 | Legal Tweaks that would change NSW and the nation