Category: Legal News

Recently, the Australian Law Reform Commission’s latest report stated that there were numerous Commonwealth laws that infringed upon Aussie’s privileges, freedoms and traditional rights recognized by the common law. As a matter of fact, this is regarded as one of the deepest legal research ever undertaken by the ALRC, given the fact that last week the government released the commission’s final Encroachments by Commonwealth Laws, regarding Traditional Rights and Freedoms.

The research was conducted following the request made by the Attorney-General George Brandis QC, back in 2014. The AG asked the commission to consider the matter and identify if there were any Commonwealth laws that might have infringed upon Aussie’s traditional privileges, freedoms and rights.

After researching about the matter keenly, ALRC managed to identify some Commonwealth laws that encroached upon 12 out of the 20 traditional privileges, freedoms and rights provided by the AG as Terms of Reference. In addition, the commissioner in charge of the enquiry and ALRC president Professor Rosalind Croucher, said that important freedoms and rights that were traditional, should only be interfered with, if it is really necessary, but it should be done reluctantly. “This final report will inform decisions about whether such laws may be repealed or amended, because it critically examines and identifies Commonwealth laws that limits traditional privileges and rights,” said Mr. Crouncher.

The 12 traditional rights that have been infringed by the Commonwealth laws include property rights, judicial review, procedural fairness, retrospective laws, legal professional privilege, privilege against self-incrimination, absolute or strict liability, burden of proof, fair trial, freedom of movement, freedom of association and assembly, and freedom of speech.

Also, the report calls for further review or consideration, putting in mind various Acts including the Migration Act, the ASIO Act, the Water Act, the EPBC Act, the Proceeds of Crime Act 2002, the Australian Crime Commission Act 2002, the Corporations Act 2001, the Income Tax Assessment Act 1997, the Migration Regulations 1994, the Veterans’ Entitlements Act 1986, the Australian Security Intelligence Organisation Act 1979, the Racial Discrimination Act 1975, the Copyright Act 1968, the Bankruptcy Act 1966, the Taxation Administration Act 1953, the Charter of the United Nations Act 1945, and the Crimes Act 1914.

The report stated that some of these laws might be reviewed by the ALRC itself, a body such as the INSLM, a government department or even a parliamentary committee. However, since the laws have different effects on Aussie’s traditional privileges, others may simply warrant consideration by government.

In the meantime, there are measures already being put in place by the Attorney General Brandis QC to maintain and preserve the rights and privileges that illustrate the principles of democracy. The AG has asked his ministerial colleagues to keenly consider the best alternative or decision that might be made in regards to the Commonwealth laws identified by the ALRC

The Attorney-General Brandis QC has asked his ministerial colleagues to keenly look into the matter and come up with the best action that might be taken, in relation to the laws that the ALRC has identified.

“It is important to take note that the rule of law, liberal democratic values and individual personal freedom lie at the heart of Australia’s national identity,” said the Attorney General.

According to the new strict lockout laws announced by Annastacia Palaszczuk, Queensland Premier, there is a new law that will see last drinks in all entertainment precints served at 3:00am. The new law comes with harsh consequences whereby convicted drug offenders can be banned from accessing entertainment joints. Also, there will be more restrictions that will be introduced in February next year, which will be concerning 1:00am lockouts. In the meantime, the lockout covers 2:00am last drinks outside entertainment joints. In addition, new lockout laws will be introduced by July 1 this year concerning 3:00am last drinks in all entertainment joints.

Hence, with the new law, all clubs and pubs will serve their last drinks at 2:00am and that should be outside entertainment precints. Queensland residents should put in mind that convicted drug offenders can be banned from Safe Night precincts if they fail to abide by the new law. The decision was arrived at under the measures agreed upon with both Australian Party MPs.

The main objective behind the 3am lockout is to protect hospitality workers, the community and patrons from various types of harms related to alcohol consumption. In addition, the lockout applies to all late-night-trading licensed joints across Queensland. Residents should also take note that the Queensland 3:00am lockout laws restrict the entry or re-entry of patrons after the stipulated time. However, the other fact about this new law is that it allows liquor licensees to continue trading past 3:00am, provided that they have late-night-trading approval. For example, patrons will not be permitted to re-enter your venue or any other venue once they go outside to meet up with friends, move their car, or even smoke.

On the other hand, the 3am lockout comes with a few exemptions hence the following venues are exempted from the lockout:

• Airport terminals;
• Residential accommodation sections of premises that are licensed;
• Casinos; and
• BYO Restaurants.

Also, the following people are allowed to access licensed areas after the restricted time:

• Emergency personnel and police who are carrying on with their official duties;
• Office of Gaming and Liquor Regulation investigators; and
• Employees of licensed premises.

Venues that don’t trade past 3am are not left out because there are licensed conditions that can be applied to them whereby the Commissioner for Gaming and Liquor can order earlier lockouts.

Queensland permit holders and licensees should take note that they can face penalties of up to $11,780 if they fail to comply with the Queensland 3:00am lockout laws.

According to the Law Council of Australia, foreign legal markets will be easily availed to Australian lawyers, thanks to the recently signed Trans-Pacific Partnership Agreement. Last Friday, New Zealand was the place where it all happened and the free trade agreement, which has been waited for a long time, was put into pen and paper. The agreement was between Australia and other leading countries that contribute to the world’s economy with more than 40%. The agreement is expected to help many lawyers in Australia get relevant connections in their fields of practice; hence it will lead to a tremendous growth in the Australian legal industry. As a matter of fact, the Law Council of Australia has already announced that it will support the agreement at all cost since it has good things in store for the Australian lawyers at large.

There are numerous positive updates and measures included in the agreement. For example, the agreement now provides legal professionals with favorable market access measures. “Now, Australian legal professionals and businesses will be able to offer their services overseas and improve on their ties, thanks to the new market access for lawyers,” said LCA president Stuart Clark while speaking with Aussie Lawyer Blog. This is because the newly-signed agreement provides efficient market access measures for Australian lawyers even when they are away from home.

Regardless of whether lawyers have set good ties and built their presence overseas, they can now provide legal services to their overseas clients on a fly-in, fly-out basis even in TPP countries. The LCA president also added that it is impossible for investment and transitional trade to take place in a legal vacuum. Therefore, it is not all about setting good presence overseas but this is good news for law firms operating internationally because the fly-in, fly-out access is very important for the business model of law firms.

Australian lawyers can have something to celebrate about in the meantime, given the fact that more countries are continuing to open their legal markets. Malaysia recently joined the list of countries that have made commitments to open their legal markets for Aussie lawyers. “The TPP is a positive development for our legal industry even though there is no deal that is ever perfect,” said Mr. Clark. He also said that they are continuing to work on new growth measures whereby they will search for countries that offer better market access for Australian legal professionals. Therefore, this makes the TPP a good and healthy living agreement that provides clear framework for further improvements in the legal sector. Nations that are considered members of the TPP include Peru, Chile, Mexico, Brunei, Singapore, Vietnam, Malaysia, Japan, Canada, the US, New Zealand, and Australia.

According to a specialist career recruitment firm, construction lawyers, finance lawyers and corporate lawyers are expected to benefit from a salary increase this year. Lawyers who are more experienced will benefit more because there will be demand for highly experienced lawyers in Australia for the next four to seven years. “We expect to see a steady demand for highly-qualified lawyers with more than six years experience in the field,” said Henry Smith, who happens to be associate director of banking and legal matters at The Robert Walters in Sydney.

Some of the areas that are considered to be in high demand include construction, finance, and corporate law, as reported by a recent global salary survey by The Robert Walters. The survey also indicated that salary increase will be moderate across all legal sectors in Australia. “During 2015, the legal industry saw salaries for experienced lawyers increase between three and six percent,” said Henry Smith while speaking with Aussie Lawyer Blog. In addition, some lawyers who made an extra effort to extend their services in numerous core sectors were lucky to see an improvement of up to 20 per cent. “As a matter of fact, the increase in regulatory change acts as one of the key factors that drive demand in the Australian legal industry,” said Mr. Smith.

On the other hand, there has been a massive increase in private practice roles and great improvement in hiring across all sectors in the Australian legal field. The trend is expected to continue in 2016 as the demand continues to increase daily. Just a quick note, there has been high demand for experienced mid-level finance lawyers in Australia due to steep improvement in regulatory changes across the country’s financial institutions.

According to the survey, other important factors driving demand in the legal industry include increased private and public investment in large infrastructure projects, increased levels of international and local M&A activity. Skilled lawyers in Australia often have an upper hand and always have the authority to choose their next role based on a good salary offer, development opportunities, career progression, work/life balance, and company culture.

According to industry leaders, Australian firms have been slow in embracing technological advances when it comes to dispute resolution. Unlike Australia, other legal markets in the overseas have shown their interest in readily adopting technology and its advancement in the legal sector. “Australian law firms have not yet adopted the latest dispute resolution technology,” said eDiscovery’s manager, Martin Flavell, while he was speaking with Aussie Lawyer Blog. He also said that in terms of technology, Australia is behind with a few years as compared to countries like US.

In addition, law firms in Australia have shown reluctance in adopting emerging technologies such as predictive coding that are now emerging in countries like US. “There is still no reason why our firms should avoid such impressive technological improvements because eDiscovery has been in Australia for at least a decade,” said Mr. Flavell. He added that the main reason as to why the Australian legal markets are encouraged to adopt the new technological advances is because technology or coding assisted review helps in selecting relevant documents in a case by combining computer algorithms with human review. With this new system, a team can run the remaining documents through the predictive coding software after selecting a number of files that are considered highly relevant with the case, instead of paralegals going through a long list of documents.

There are numerous advantages that come with adopting this new technology and they include reducing costs and the manual tasks involved in discovery, identifying other relevant documents, and it also saves the law firm’s precious time. This is because the software examines the words and phrases used in the subset of documents that the law firm’s team selects. Instead of spending weeks with paralegals going through many documents, you can consider running the program overnight and it is done. “The best thing that I love with this technology is the fact that it helps in reducing the most important and significant part of litigation,” said Mr. Flavell.

On the other hand, the main reason why Australian firms are shying away from using this method is because they are used to the paper work, hence they often view the technological approach as a risk. However, “some firms have started to adopt the new method although it caused much discussion a few years ago,” added Mr. Flavell. He said that the electronic removal of duplicates alone can help lower the document’s volume by a big percentage given that the extent to which eDiscovery can cull documents varies from one case to the other.

Due to the high level of demand for domestic violence legal services, a new helpline has been launched to cater for this need, courtesy of Women’s Legal Service (WLS) Queensland. In 2015, domestic violence services reflected a 40 per cent increase in demand after WLS offered free social work and legal services to the victims and the number was estimated to be approximately 3,700 Queensland women. On the other hand, this also entails that more than twenty thousand calls went without being answered simply because WLS was only able to assist one in ten women who attempted to access the domestic legal aid services that the organisation offered the victims.

Lately, similar increase in domestic violence services has been experienced by legal aid lawyers and Family law specialists all over Queensland. Now, women experiencing domestic violence matters in the region can put smiles on their faces because the new helpline is expected to improve the community’s effort towards delivering free social work and domestic violence legal aid services to the affected women. After the holiday season which is testing the organisation’s new system, WLS definitely experienced a spike in demand for their services. The coordinator also said that as early as next week, women who are contacting WLS after they have experienced domestic violence will get a better chance to be represented by the legal community in this time of year.

As a matter of fact, the WLS community was in a position to respond to six times more calls than the last recorded number on the first day of the new helpline last week. According to a statement from WLS, an independent evaluation found that thousands of additional women in Queensland will be able to access the helpline as its implementation is expected to result in a higher capacity percentage. The helpline team also suggested that in order to meet the huge unmet demand and keep the initiative moving forward, it was essential to maintain the ongoing help from surrounding community, businesses, and the government.

In addition, WLS has put successful measures in place to enable more access to the service. Also, for the program to deal with more urgent needs WLS decided to place a triage system by increasing their working hours and now they are open five days a week as compared to the previous working hours which was four days a week. The lawyers have also put in place easier appointments in order to allow more access for regional or rural women suffering from domestic violence.

Since its establishment in 1976 by the Family Law Act 1975, the Australian Family Court celebrates its 40^th year in the family law sector. Because there was increasing need for a Court to specialise in family law cases, the Family Court got established. Apart from Western Australia, the Act was able to create a family law system that was uniform across all Australian Territories and States. However, in mid 1976, the Family Court of Western Australia was opened. In order to handle the family law matters sensitively and ensure efficient Court proceedings in the Family Court, experienced and proficient judges who were well-familiarised with the Family Law system were appointed to serve the newly opened courts by then.

There were many reasons as to why the Australian Family Court got established including, introducing non-legal professionals, such as counselors and also to enable the court procedure be more informal as compared to the State Courts. Instead of using an overly adversarial approach, the Family Court got established to facilitate and encourage resolving family disputes by the parties reaching an agreement cooperatively. According to a South Australian-based law firm partner, Diana Dichiera, people were able to access greater freedom to leaving abusive and unhealthy relationships thanks to the introduction of the Family Court in 1976.

The Family Law Act 1975 and the Family Court have greatly changed both in relation to the court processes and the law over the past 40 years. Today, the changes to the most common areas of family law practice in Australia include; Parenting Matters, Property Settlement Matters, and Divorce. It is a fact that divorces were often difficult and expensive to obtain before the Family Court and the Act got introduced in Australia. As a matter of fact, “parties had to have been separated for five or more years in order to obtain a divorce order,” said Diana while speaking with Aussie Lawyer Blog.

Alternatively, only the spouse that proved the other partner was a fault for the breakdown was allowed to obtain a divorce order if the couple got separated. The following were the grounds of fault at that time; Bestiality, Sodomy or Rape; Habitually cruelty to a spouse of at least one year; There had been desertion by a spouse of at least two years without excuse or cause; and Adultery had been committed. Therefore, this shows how the Family Law system in Australia has greatly improved since the establishment of the Family Court and the Act.

After being adopted in Queensland recently, PEXA, which stands for Property Exchange Australia is expecting to grow tremendously in 2016. While speaking to Aussie Lawyer Blog, Marcus Price, who happens to be the CEO at PEXA, said that by turning to e-conveyancing, he expected many law firms in Australia to modernize their practice by the next few coming months. Mr. Price said that already he was aware of lawyers who were undertaking conveyancing and right now you will find them deploying various types of relevant online solutions like practice software. “They are also scanning their documents in advance to be a step ahead,” said Mr. Price.

As a matter of fact, it is very important to hold back the residential property market valued at $6 trillion, from going digital because it serves as a national wealth generator and it is also regarded as the largest single asset class in Australia. On the other hand, lawyers also proved that they needed convincing around the confidence and integrity of the system because in 2015, the buying and selling digital platform for property faced massive resistance considering the fact that it was launched in 2014. In order to make electronic conveyancing available to lawyers, GlobalX Legal Solutions which is a technology company, decided to become the first sponsor to integrate with PEXA in November.

“Since we are already in 2016, the GlobalX Legal Solutions is preparing to boost its support and training programs for law firms in Australia,” said the company’s CEO Peter Maloney. In order for legal practitioners and firms to decide the best way forward, Mr. Maloney suggested that it was equally important for law firms and legal practitioners to be well-familiarised with the technological trends in the legal industry and have a clear understanding of how they operate. In addition, he said that GlobalX Legal Solutions had discovered very promising data on the willingness for the legal industry to move hand in hand with technology.

Thanks to the agreement that was signed between PEXA and the Queensland government on 18 December, now PEXA’s national rollout is doing very well, with the system live in Queensland, Western Australia, New South Wales and now Victoria. “I believe that PEXA’s innovation is in line with our government’s ‘GoDigitalOld’ strategy, focusing in improving the use of digital technologies by our government individuals, businesses and even agencies,” said Liz Goli who is the current Commissioner of state revenue, Queensland treasury.

On 21 December, the Queensland Law Society welcomed the first electronic property transaction in Queensland, following the adoption of PEXA. She also said that the GoDigitalOld strategy should be embraced by all Australians because it creates and fosters business ventures that ultimately improve their living standards while encouraging economic growth at the same time. “Although nowadays young lawyers expect everything on their smartphones, they can still be more productive within the business when they decide to provide more flexible working solutions,” said Liz Goli.

According to the head of a boutique, hiring more staff than the current workload and having a flexible team structure is enough to help small firms tackle big deals. “I believe having high staff levels can give small firms the chance to cater to high-end clients,” said Henry Kalus who is also the founder of Kalus Kenny Intelex. He also said that in order to manage the really big deals when they come along, they have always wanted to have more people than their firm need in the practice. In fact, this may require them to hire even in areas with little extra work for some cases.

Mr. Klaus also said that there are some lawyers who build a practice on the back of staff while thinking that they are building it on their clients and he described this as a big mistake. It is true that a lot of law firms have built their reputation by bringing aboard partners who in turn bring well-paying clients. However, Klaus believes that small firms can change this approach and use their own staff to find the right work that will help them grow their reputation. “I encourage my staff to avoid exceeding their billable budgets and I always stress on the point that lawyers shouldn’t be over-worked,” said Mr. Klaus.

On the other hand, lawyers can easily exceed their billable bills if they are not delegating enough and also if they are not resourced enough. “That’s not the way people should measure success and we don’t want to see our lawyers exceeding budgets because of it,” added Mr. Klaus. In addition, Klaus believes that small firms can attain flexibility to scale up the firm’s capacity by having their lawyers work across a number of teams. He also said that in order to get the flexibility desired, he has employed a team of transactional commercial property and another team of property development. Therefore, just like the large firms, this gives Klaus the chance to put as many people on a transaction and get the work done accordingly.

However, it is important to take note that it is critically important to ensure that not more than four or five lawyers tackles one transaction because the end result may not be appealing. Given the wide legal market, Mr. Klaus believes that boutique firms in Australia can easily compete with much larger players if they keenly implement these strategies. Mr. Klaus and Jonathan Kenny found Kalus Kenny Intelex in 1993 and Sven Burchartz later joined them in 2013 and currently serves as the firm’s managing partner.

Recently, the firm acted on the acquisition of Amcor Paper Mill site and the seventy two million dollar sale of The Well shopping centre based in Camberwell. Mr. Kalus suggested that because of the personal, expert experience offered by smaller firms, large developers are increasingly looking forward towards getting their high quality services.