Practice Intelligence | Archive | 2020
08 DECEMBER 2020
In Conversation with Felicity Gerry QC
Professor Felicity Gerry, QC has dedicated much of her life to advocating for vulnerable individuals in both Australian and international courts amidst sensitive topics such as genocide, terrorism and modern slavery.
27 NOVEMBER 2020
Victoria’s new workplace manslaughter laws: it’s all in the messaging
On 1 July 2020, Victoria became the fourth Australian jurisdiction to introduce workplace manslaughter laws. The laws are a fulfilment of an Andrews Labor Government election commitment and follow a sustained union campaign.
24 NOVEMBER 2020
Freedom of expression vs the employer's right to regulate employee behaviour: why the Folau case wasn't about religion
In the age of social media, we all have access to multiple platforms to express our views and be involved in an array of forums and debates at any time of day. With these platforms comes responsibility, and a greater ability to cause harm, both to those around us, and to the reputation of our employers.
19 NOVEMBER 2020
WorkPac v Rossato – the death of the ‘long-term casual’
Recently, the issue of what constitutes casual employment has become increasingly litigated. The decision of the Full Court of the Federal Court in WorkPac Pty Ltd v Skene (Skene) in 2018 sparked significant media attention because it challenged the then prevailing view as to what constitutes casual employment.
19 NOVEMBER 2020
Not enough to say no: what the changes in modern awards mean for discussing and refusing flexible work requests.
In November 2018, the Full Bench of the Fair Work Commission handed down a decision that expands on an employer’s obligations when considering an employee’s request for “family friendly” working arrangements. The decision inserted a model term into all modern awards (Flexible Work Decision).
18 NOVEMBER 2020
Calculating time — distinguishing between “at least x days before” and “x days before” an event
Clauses imposing time limits on the performance of contractual obligations are fertile ground for disputes and non-compliance is often raised by parties seeking to terminate contracts. Common phrases such as “at least x days after” or “x days before” are used to describe time periods. Often the differences in meaning are subtle and depend in each case on a construction of the whole of the contract terms in the context of “rules of thumb” that have been applied over time.
18 NOVEMBER 2020
Australian Property Law Bulletin highlights
The NSW government introduced new disclosure requirements for developers entering into off the plan contracts for residential developments from 1 December 2019. A Disclosure Statement is now required to be attached to a contract for sale that includes information such as sunset dates, whether development approval has been obtained and details of any strata scheme, community precinct or neighbourhood scheme the lot may form part of. The developer is also required to attach a number of prescribed documents, including a draft plan prepared by a registered surveyor, any proposed schedule of finishes and draft strata by-laws.
16 NOVEMBER 2020
Remedying Wage Theft: The Evolution of the Fair Work Ombudsman’s Enforcement Approach
The last few years have seen extended public outcry over what appears to be systemic wage theft in Australia. In response to the ongoing underpayment of wages, the Fair Work Ombudsman has beefed up its enforcement priorities, with - among other things - Company Directors now significantly liable and a range of civil and criminal remedies at its disposal.
11 NOVEMBER 2020
Joint Select Committee on Australia’s Family Law System
This report itself is 300 pages, and with its seven appendices, extends to over 400. Without making a single recommendation, it makes a substantial contribution to the family law literature.
The Joint Select Committee on Australia's Family Law System, chaired by Hon Kevin Andrews MP, was appointed in September 2019.
09 NOVEMBER 2020
Wage theft: what risks lie ahead for businesses?
Underpayment has continued to be a very serious legal and reputational issue for business during this crisis year of changing rules and employment schemes. The Fair Work Ombudsman (FWO) has stated its intention to continue to focus on underpayments, so businesses should be auditing regularly to avoid litigation and to ensure that they have appropriate governance and systems in place.
04 NOVEMBER 2020
Advising directors of companies in financial distress
With a flood of company insolvencies expected in 2021, lawyers will increasingly be asked to provide advice to directors of companies facing difficult decisions about the future of their businesses. We provide a checklist to assist with advising directors of companies in financial distress.
04 NOVEMBER 2020
Insolvency law reform - how the new debt restructuring process will work and its pros and cons
The most significant reforms to Australia’s insolvency laws in 30 years are due to commence on 1 January 2021 subject to the passing of legislation.
It is important for practitioners to get across key components of the draft legislation released by Treasury to help clients prepare for the changes that are fast approaching, particularly given demand for legal services in insolvency and restructuring is set to rise in 2021.
28 SEPTEMBER 2020
Social services plea for pandemic relief in October budget measures
As JobKeeper payment rates fall from 28 September, and mutual obligations return for JobSeeker recipients, social services organisations will be looking to the 6 October Budget for signs that the Government might avoid harsh austerity measures to cut its way clear of the COVID crisis.
28 SEPTEMBER 2020
Australian family property law: ‘Just and equitable’ outcomes?
As the COVID-19 healthcare crisis continues to impact family relationships already brimming with high levels of financial stress, the number of couples applying for divorce in Australia is tipped to rise over the next 12 months.
25 SEPTEMBER 2020
Thorne v Kennedy: High Court of Australia confirms the laws of contract and equity underpin pre-nuptial and post-nuptial financial agreements.
In a recent Australian Bar Review article, Lance Rundle of Central Queensland University explores the context in which equitable intervention, namely duress, undue influence and unconscionable conduct, were considered and applied by the High Court of Australia in the decision of Thorne v Kennedy. Furthermore, he analyses the impact of the decision for legal practitioners and parties when negotiating, drafting and signing a family law financial agreement.
21 SEPTEMBER 2020
The Law of Bankruptcy Notices and Creditors’ Petitions
Gaining an understanding of the law of bankruptcy has become a necessity during 2020. COVID 19 has dealt many sectors and individuals unexpected risk and concerns related to bankruptcy, insolvency and creditors petitions. Decoding and anticipating the consequences of COVID related legislation and policy is a critical skill. We took the opportunity to ask Nicholas Simpson of 13th Floor St James Hall, author of the new text The Law of Bankruptcy and Creditors’ Petitions some key questions.
21 SEPTEMBER 2020
Skilful Lawyering – Success in the profession
The process of developing critical thinking is one highly regarded skill of every law student. Another less discussed but equally important skill is the ability to interpret statutes. This skill is at the core of being a lawyer as it provides a foundation in problem solving and text interpretation as it relates to the significant body of legal writing, that is, legislation. This skill is critical when a case may involve a statute. In such a scenario the application of one’s understanding of the legislation helps a lawyer to win or lose a case.
17 SEPTEMBER 2020
A Revolution in Dispute Resolution: The impact of COVID-19 on civil litigation in Australia
The COVID-19 pandemic has transformed the administration of justice in Australian courts and tribunals, necessitating a comprehensive overhaul of the protocols, procedures and norms of etiquette on which the courts and the legal profession have relied for decades. These changes have been sudden and challenging, but the profession and the judiciary have adapted quickly and have seized on opportunities to enhance access to justice and improve efficiency. It is relatively clear that the conduct of litigation in Australia may never be the same.
17 SEPTEMBER 2020
A post-COVID economy vision: how will the budget measure up?
With less than a month until Treasurer Josh Frydenberg hands down the Federal Budget, industry bodies have released a flurry of economic reform proposals hoping to help the Government steer Australia towards a quicker post-pandemic recovery. Business advocates such as the Business Council of Australia (BCA), the Australian Industry Group (Ai Group) and Australian Chamber of Commerce and Industry (ACCI) have led the pack, recommending greater business investment, extensions to the coronavirus supplement packages, and earlier personal income tax cuts.
17 AUGUST 2020
Forensic Evidence Miscarriage of Justice Infographic
40 years ago baby Azaria Chamberlain died in tragic circumstances, sparking a controversial miscarriage of justice for Lindy Chamberlain and her husband Michael. Unfortunately, there are many Australian cases where forensic science has played a substantial role in convicting the innocent.
Six cases of significance are highlighted in this infographic.
07 AUGUST 2020
Dealing with the impact of widespread disease on the workplace
Various issues arise for businesses when there are risks of widespread disease affecting the workplace, such as in a pandemic. The overarching requirement for a business is to meet its work health and safety duties, which requires it to ensure the health and safety of workers and other persons in the workplace.
06 AUGUST 2020
COVID-19 challenges and responses
A university librarians’ perspective
The pandemic sweeping across the world is a global crisis that has shut down cities, closed borders and has created once-in-a-lifetime challenges and changes for many.
Here we talk to Kay Tucker, Law Library Manager at Monash University about the unique challenges faced by Australian University libraries.
27 JULY 2020
Alerting subscribers from all walks of life
For 30 years, Capital Monitor™ has alerted subscribers from all walks of life to parliamentary, political, legislative, regulatory and judicial news and information as it happens. When the concept for this service was born in the late 1980’s, and launched as a business in January 1990, photocopiers and faxes were considered new technology.
27 JULY 2020
Impact of COVID-19 Superannuation savings under threat from early access plans
Australia’s superannuation system is one of the best in the world, designed to address aging demographics and reduce overall reliance on the age pension. Yet under successive Coalition Governments, it has suffered several shocks, each one weakening it, or delaying its growth. The COVID-19 pandemic has further increased its vulnerability, with current government policies seriously threatening to chip away at superannuation balances and retirement incomes.
24 JULY 2020
New-found workplace flexibility, or economic disaster
After years of relative stability, Coalition Government moves against trade unions, and a recent High Court of Australia decision related to casual workers, have brought conflict and uncertainty to the industrial relations landscape. An economic crunch and spiralling unemployment on the back of COVID-19 have heightened concerns among employers and employees alike.
22 JULY 2020
National Cabinet plays with a newfound unity, but will it last
Prime Minister Scott Morrison and Acting Chief Medical Officer Paul Kelly emerged from the latest National Cabinet meeting on Friday the 10th of July 2020 to announce the latest in what the nation’s leaders had agreed to. It was the first time National Cabinet convened since the new spike of Covid-19 cases in Victoria, and while the Prime Minister described the outbreak as “concerning”, he also said that Victoria had been given all the support it needed from the Commonwealth and other states and territories to fight this crisis. Part of this support would be in the form of extra clinical staff, national coordination, and 265 Australian Defence Force personnel.
16 JULY 2020
Black Lives Matter: the legalities and politics of Australia’s racial vilification and defamation laws
This blog covers the three of the four main points of The influence of defamation law on the interpretation of Australia’s racial vilification laws (2020, 26 TLJ 34, LexisNexis), by Bill Swannie of Victoria University.
How do you balance public interest in fair comment over ridicule and satire and how does this help us in interpreting our racial vilification laws? What is actionable as defamation and what are the relevant laws in a society that considers free speech a sacred principle?
02 JUNE 2020
Why do we need innovation in law?
There are some degrees of cynicism when another law firm issues another press release regarding the next step on their innovation pathway. The latest foray into “Blockchain”, “Artificial Intelligence”, “Design Thinking” and “Smart Contracts” are touted as game changers placing their firm at the forefront of the re-invention of the profession.
01 JUNE 2020
Thinking outside the box: Protecting registered software trade marks in Australia
Practitioners working in brand protection and trade mark law are very familiar with applications to remove trade mark registrations on the basis of a lack of intention to use or lack of use.
08 APRIL 2020
Beyond COVID-19: The unresolved epidemic of wage theft and underpayments
Employers are currently focused on crisis-management workplace issues, due to the COVID-19 pandemic. Once this crisis has abated, attention will again be focused on the yet unresolved wage theft epidemic. The article sets out key issues that employers need to consider regarding underpayments.
23 MARCH 2020
Much Obliged: When could a lawyer mediator be liable for breaching their obligations?
Mediation is an increasingly popular form of dispute resolution in Australia especially in last few decades. While mediators may possess a variety of skills and may come from a range backgrounds, lawyers and barristers are frequently engaged in mediations either in their capacity as legal representatives of the parties, or as mediators.
28 JANUARY 2020
Lessons from the IOOF Case
A recent decision of the Federal Court in Australian Prudential Regulation Authority v Kelaher  FCA 1521 provides some guidance to regulators, trustees of superannuation funds and their advisers on issues related to administering superannuation funds and conducting litigation, explains Noel Davis, Barrister and author of The Law of Superannuation in Australia.