Aussie Lawyer Blog

Category: Legal News

The Latest Australian Legal news.

  • Anti-abortion activist loses his bid against being deported from Australia

    Troy Newman2

    Recently, anti-abortion activist Troy Newman found himself on the wrong side of the law when he decided to show consummate disregard for the Australian law. Troy lost a last minute bid to retain his stay in Australia and avoid his deportation but the high court found that he had went against the law, hence his stay in Australia wouldn’t be viewed as legal and just. The reason behind this is because Mr. Newman decided to travel into Australia despite his visa being cancelled. There were concerns that the visit of Troy Newman to Australia in regards to his “speaking tour” could incite community harm, hence the Australian authorities decided to revoke his visa. The US citizen was detained at Melbourne airport after landing in Australia, ready to carry on with his anti-abortion campaign.

    It was confirmed on Saturday by a spokeswoman for the Australian immigration minister, that Troy had departed Australia and took a flight back to the US. Shortly after arriving in Australia without a valid visa, Mr. Newman lost his bid in the high court against his deportation from Australia. As a matter of fact, this will see the controversial activist pay the commonwealth’s legal fees due to his conduct in regards to going against the law. Given the fact that he had traveled to Australia with knowledge that his visa had been revoked, Mr. Newman showed disregard for the Australian laws,” said Justice Geoffrey Nettle while making his decision in the high court in Melbourne on Friday. In addition, “he does not come to this court with clean hands,” said Nettle.

    On the other hand, the high court justice said that the campaigner was aware his visa was revoked when he decided to record a video of him being stopped at Denver airport in regards to his “illegal visa”. Nettle also said that before Mr. Newman decided to travel to Australia, the airline crew made an effort by trying to urge him to contact the Australian embassy. Troy Newman had “no right to treat it as nought despite disagreeing with the cancellation of his visa,” Nettle said. The justice said that Mr. Newman was “avidly and determinately” intent on travelling to Australia. In fact, “he is the author of his own predicament and misfortune,” said Nettle.

    After it emerged that Newman had advocated that abortion doctors in the US be tried as murders, which had a potential in leading them to execution, the immigration Authorities cancelled his visa on Tuesday 29 September 2015, just as he was about to fly out of the US to start a 10-day speaking tour in Australia on Thursday 1 October 2015. However, a member of the anti-abortion group that organised the public seminars, Mary Collier from Right to Life Australia, expressed her disappointment in regards to the high court’s decision. She told reporters in Melbourne that they were much looking forward to hearing Troy speak and champion his campaign in Australia.

    Conclusively, the rejection of Newman’s visa is nothing new because it followed few days after the revocation of the popular U.S. hip-hop star Chris brown’s visa, reason being that the artist’s history involving domestic violence could be viewed negatively by the Australian society. Following a spate of high-profile deaths, Malcolm Turnbull, the newly installed Australian Prime Minister has renewed efforts to fight domestic violence.

  • Increasing Demand for Property Lawyers in Australia

    Recently, there has been shortage of construction and property lawyers in Australia, particularly on the east coast. Hence this has put much pressure on firms that deal with cases involving property law, leaving them desperate for property lawyers. According to Richard Abbott, who is also the head of property at Holding Redlich, the construction and property sector has been busy since it got well-established in 2006. Richard also said that he is expecting the trend to continue in the next one year since the construction and property industry is experiencing tremendous growth which will commence for the next 12 months. “Obviously, with the differentials across the states, I think the construction and property sector will remain strong,” he said. “The lawyers that will be lucky to get a foot on government projects will remain busy and generally, the construction and property lawyers will have no time to waste, since they will be busy working on property cases here and there.”

    However, on the other hand, Mr. Abbott has raised an alarm to firms in Australia that property lawyers are inadequate hence they should not be fast in expanding their practices to handle legal matters in the construction and property industry. In his view, Richard thinks that the current talent pool was brought by the slowdown in the sector during the GFC limited. “The demand for property lawyers went down after the GFC, hence the construction and property industry automatically became quiet,” he said. “No one went into property and there was no much property activity for a long period.” Therefore, that’s the main reason why many firms in Australia are desperate for property lawyers while there are few lawyers with expertise in property law.

    According to Nick Holuigue, a development and property partner at Maddocks, the outlook is considered the same because they are also in need of property lawyers due to the busy market which is promising and booming. Mr. Holuigue also suggested that his firm is particularly on the search for lawyers who are ready to work with investors who are from foreign countries, including China and Singapore. It’s all about advising the foreign investors on how they can relate their business with the cultural differences that they might encounter in regards to the manner of doing business and their needs. “For instance, our law firm is hiring more lawyers who speak Chinese,” he said. “The reason behind this is because our team’s practice has a good number of property clients from overseas.”

    Another important factor that property lawyers need to understand is that they should be well-familiarised with the market knowledge and cross-border expertise in order to help clients who are not familiarised with the conditions in the local industry. In addition, it is important that they understand the designing investment structures that work internationally and the challenges faced by international investors. Also, they need to explain to the investors how the local market works, touching on the fundamentals of Australian real estate. This will help give the foreign investors a good insight of the local market and how the risks and returns look like.

  • New President Elected by the Law Society of WA

    Once again, the Law Society of Western Australia has elected a new President. The new President in office is none other than Elizabeth Needham. She will serve as president of the Law Society of Western Australia until 31 December 2015. Mrs. Needham was elected on Tuesday 8 September 2015 at a meeting held by the Law Society Council. Since the resignation of Mathew Keogh in August, Elizabeth Needham had been serving as the Acting President of the Law Society.

    The position of Senior Vice President has been taken by Alain Musikanth. On the other hand, the position of Treasurer was taken by Marie Botsis while the position of Vice President was claimed by Hayley Cormann. All the above posts were determined by the Law Society Council. The elected officials will serve at the Law Society in their specified posts till 31 December 2015. Mrs. Needham said that she was delighted and honoured to be sworn in office as the Law Society’s new President.

    The new President also said that she is looking forward to utilising her skills in representing the Western Australia legal industry. In addition, she will continue working hard towards ensuring that she gives her best on behalf of all the Law Society members. Elizabeth Needham specialises in the legal areas of administrative law, human rights, crime, and family law. She practises from Francis Burt Chambers as a barrister. The new Law Society President worked at Commonwealth Director of Public Prosecutions as a Principal Legal Officer specialising in complex commercial prosecutions and at Department of Consumer Protection as Director of Legal and Prosecution. She also contributed positively while working in legal aid and community legal centres. As a matter of fact, Mrs. Needham has been practising for over 20 years.

    In addition, Elizabeth Needham has been actively involved in a number of Women Lawyers of Western Australia Committees while she was still serving as the President of the Society by then. The Society’s Committees that she has actively contributed to include: Women Lawyers Committee/Joint Law Society, Human Rights Committee, Law Summer School Committee and the Education Committee. Therefore, Mrs. Needham has been of great help to the Western Australia legal profession. She is expected to continue unleashing her potential in the legal industry especially now that she has officially been elected as the Law Society’s new President.

    The Law Society of Western Australia is a non-profit organisation that is rated as the peak professional organisation for lawyers in Western Australia. It is dedicated to representing its members whose number is estimated to be more than 3500. Given its position as a respected contributor and leader on the rule of law, access to justice, and law reform, the Society has generally improved the legal industry. In fact, in Western Australia, the Society has been widely acknowledged by the community, government and the legal profession.

  • Lawyers Urged to Update Judges on Social Media Trends

    It is important for all lawyers to take note that not all judges are familiarised with social media trends. Hence, it is upon their duty to guide judges accordingly on cases involving social media. Many judges find it hard to interpret the terms used in various social media platforms. In fact, early this week, a former high court judge Dyson Heydon’s admitted that he doesn’t use email hence he was not up-to-date with the latest technological trends.

    However, Natallie Hickey from Owen Dixon Chambers West in Melbourne said that a few judges have started getting familiarised with the social media platform. “But they can’t be more familiarised as compared to staunch social media users who are well-acquainted with the culture and mechanisms used in different social media platforms.” Ms. Hickey said. She also said this does not mean lawyers should assume that judges are well-familiarised with social media trends as the other people who appear before them do.

    For instance, in defamation cases that occur through social media, lawyers are expected to explain into details what took place and the mechanisms used, shedding light on the pros and cons of social media. Hence, lawyers are expected to understand their audience in order to come up with extensive evidence. “The reason behind this is because ascertaining the impact of a message requires a lawyer to understand the influence and lifespan of each post in a given social media platform.” Ms. Hickey said.

    She continued by giving an example of a case whereby a judge may attribute a meaning to a tweet which may not actually be true or may not be there in real life. If the lawyer fails to explain to the judge what is involved or fails to provide a very detailed evidentiary explanation of how Twitter actually operates, then it will be very hard for the judge to interpret the case or arrive at a fair decision. A relevant case was brought before the court whereby two artists based in Melbourne were ordered by the court to pay $450,000. The order was made after they were charged with defaming a former gallery owner by incorrectly claiming that he had assaulted his staff sexually. They also called the man Hitler and he didn’t take that lightly. Although the trial judge took this matter very serious, the decision was quashed and the case was taken back to trial.

    All these issues clearly show that there is a process of education required along the way to help judges better interpret the law behind defamation and also gain a good understanding of the social media culture.

  • A New Light in Fighting Under-representation of Women Lawyers in Australia

    The issue of under-representation of women lawyers has been a growing trend in the Australian legal system for quite a long time. Due to this, the Victorian Women Lawyers has announced a mooting competition that will concentrate on empowering women lawyers. In a report released lately, it was stated that the practicing women in Victoria only constitute 27 percent. However, the good news is that this statistic is expected to increase upon the establishment of the Victorian Women Lawyers Warren Moot. When this initiative is put into practice, more women lawyers will be given an insight into a career at the Bar. This is because it aims to address the low numbers of Australian women involved with various advocacy roles.

    In addition, Victorian Women Lawyers convener Kirsten Adams said that they will work hand in hand with women lawyers in Australia, providing the forum for them to hone and test their potential. This will help empower them to get on their feet and also see more women lawyers participate in advocacy roles. In a supportive setting, the initiative has been endorsed by Marilyn Warren, the Chief Justice of the Supreme Court of Victoria. She believes that the mooting competition will be the best opportunity for women to improve their advocacy skills at the Bar. Chief Justice Warren also added that it is very rare to see women being given speaking roles and rare still to see women advocates appear before the Supreme Court.

    A reflective history has proven that women remain underrepresented when it comes to advocacy roles. As a matter of fact, the community is missing out on a valuable resource as long as the under-representation of women takes place. Practitioners should be encouraged to brief more women on the importance of taking up advocacy roles and give them the utmost support that they need.

    As a sponsor of the initiative, Maddocks partner Maria Marshall said that the firm is committed to hosting the semi-final after the first two rounds of the competition. She said that this is expected to break the trending pattern in the Australian legal industry. Ms Marshall also added that sometimes young women lawyers get challenged since they often leave the ‘counsel’ role to their male counterparts after slipping into the ‘instructing solicitor’ role during mooting competitions. Also, the Warren Moot looks forward to breaking the legal industry pattern by offering women the chance to improve their advocacy skills and help them grow professionally with high self-esteem.

    Round one of the mooting competition is expected to kick-off on 1st September and four law students or women will make up each of the mooting rounds. Finally, 14th October will be the date for the grand final and it is scheduled to take place at the Supreme Court of Victoria.

  • Aboriginal Legal Service to withdraw its services from Karratha and Roebourne

    Aboriginal Legal Service to withdraw its services from Karratha and Roebourne

    It is quite unusual to come across an incidence where a public legal service discontinues its offerings to common masses. Recently, a service in Australia has been the part of such incidence, leaving the legal-representation seekers helpless. The Aboriginal Legal Service has decided to pull off its legal service out of Karratha and Roebourne.

    Aboriginal Legal Service is an Aboriginal community organization that has been offering legal services in Australia since 1970. The organization supported Aboriginal and Torres Strait islander women, men and children. The agency worked in the legal areas of family law, children law and children’s care and protection law.

    In the recent news published on August 11, 2015, Aboriginal Legal Service officially declared to withdraw their services from Karratha and Roebourne. The withdrawal will take effect from 18th August, 2015. It is the same date on which the Karratha Magistrates Court will increase its sitting days by twice per month. The ALS organization has already started sending letters to existing clients notifying that they can no longer represent them legally.

    Clients approaching other lawyers

    As soon as the news spread, the lawyers in Karratha are reporting that clients of ALS are approaching them for legal aids. General Michael Mischin, the state attorney, addressed media that this move of ALS will put extra pressure on Legal Aid.

    Adam Oswald, a renowned Kerratha lawyer said that various people have approached him complaining that they have recently received letters from ALS about the discontinuation of their service. In a statement, the lawyer said “it is a stressful period of time for people who found out that they are going for a trial and now all of a sudden will need to hire another legal representation”. While Adam managed to sort out the problems of the clients that approached him, he still remains concerned about other helpless legal-representation seekers. He also showed his concern saying that people who used to be looked after by ALS will be in deep trouble. He addressed the move as a regrettable one.

    Needless to say, the move is supposed to place pressure on Legal Aid. WA will have to use its state-funds to represent clients who were seeking legal help from ALS earlier. If facts are to be believed, around 80 percent of Legal Aid WA’s clients in Pilbara constitute Aboriginal people.

    ALS questions people’s approach to legal help

    The chief executive of Aboriginal Law Service, Mary Cowley has questioned whether people will be ready to access Legal Aid or not. She said that the question is significant given the number of Aboriginal people being incarnated.

    The ALS constitutes of 3 lawyers based in South Hedland who cover the areas of Pilbara. They also cover the circuit of Magistrate Dean Potter, with a court list describing as much as 100 people per day. The withdrawal of ALS will not be perfectly able to cover Potter’s circuit and the extra sittings week of Kerratha at the same time.

    Mischin also said that the ALS funding has eroded in the last few years. She feels that now, the state does not have the capacity to take responsibility of this Commonwealth.

    Response of Aboriginals

    Aboriginal people expressed their concern on this move. They felt bad as indigenous people would no longer be able to receive specialized legal representation. This move will also allow aboriginal people to explore legal services around them, rather than going to ALS for legal aid.

    However, since they never looked around, they might not feel comfortable in going to private services or Legal Aid. An Ngarluma native Belinda Chernside from Roebourne area expressed her grief saying that it is a time of crisis and the service should have been continued for longer. As a supportive gesture, ALS declared that they will always be ready to help clients as their lawyers know the backgrounds of the clients.

    About ALS

    The ALS is totally-funded organization of Federal Government. The organization achieved milestones in serving Aboriginal people throughout Australia. Working through 23 offices and 185 staff (constituting both Aboriginal and non-aboriginal people). The service area covers NSW and AST. It worked towards the goal of brining justice to Aboriginal people and community.

    Each region covered by ASL was managed by a Regional Manager reporting directly to Regional Manager. The protection law and family law practice used to be operated with Principal Legal officer who also used to report to Regional Manager. The executive staff of ASL included a Senior Management Team of ASL along with Chief legal officer, Chief Executive Officer and Chief Financial Officer.

  • Tech-awareness regarding domestic violence cases

    The Legal Service Commission of South Australia says that lawyers should not shy away when it comes to fighting the use of technology which has lately promoted domestic violence. The commission also added that after being abused over social media, text and email, victims of domestic violence are increasingly seeking legal representation and advice from various professionals in the legal sector. They claim that most of the domestic violence issues brought before the commission are highly influenced by technology in one way or another. The Commission’s director, Gabrielle Canny, said that it is well-known that lawyers dealing with domestic violence cases clearly understand the influence of technology in many domestic violence cases.

    The commission’s director also added that they can’t keep their heads buried in the sand while technology keeps on altering and damaging the legal industry since the technological change is reshaping the way things used to run before. Hence lawyers must ensure that they are broadly familiarised with the different ways in which technology can be misused by perpetrators and they are not expected to be tech experts in order to do so. The good news is that there is sufficient information online to enlighten lawyers and victims regarding expression of domestic violence through technology.

    Therefore if the lawyers dig into this matter and understand the issues, then they can assist the victims of domestic violence with their tech-related challenges. As a matter of fact, many people fail to understand that they can sue those who abuse them through technological channels and that their cases involve domestic violence. On the other hand, to determine whether domestic violence is a factor in the case, lawyers should ensure that they ask their clients relevant questions regarding their personal circumstances. Also, they can ask on how the perpetrator is keeping tabs on the victim’s movements and how the perpetrator communicates with the victim.

    After asking all these questions, a lawyer should determine whether domestic violence through technology is an issue that needs to be addressed urgently. Conclusively, it is important for all Australians to have some knowledge on how to deal with the emerging trend of domestic violence through technology.

  • Gina Rinehart fined $130,000 by ASIC due to late accounts filing

    Gina Rinehart fined $130,000 by ASIC due to late accounts filing

    Georgina Gina Rinehart, the Australian mining tycoon is the chairman of Hancock prospecting group. She is the daughter of Lang Hancock and was reported as Australia’s wealthiest person in 2011 by Forbes Asia and Business Review Weekly. According to sources, the flagship private company of Gina Rinehart has been fined $130,000 for failing to lodge financial reports in a timely manner.

    The company was ordered to pay the penalties after pleading guilty to 13 breaching counts of section 319 of corporations’ act 2001. The act stipulates that every corporation must submit their annual report to Australian Securities and Investment Commission within the time period of four months at the end of financial year. Companies governed by Rinehart namely Hancock minerals, Hancock Prospecting and Hope Downs Iron Ore failed to lodge multiple financial reports on timely basis between 2008 and 2012.

    The penalty was declared by magistrate Richard Hudson heard at the Central Law Courts, Perth. The charge was conducted in April, 2015, following an ASIC investigation.

    Rinehart criticizes ‘unnecessary’ claim

    In a statement, a Hancock spokesperson addressed that the prosecution was not necessary as the companies have already paid their taxes on time. He further added that the financial reports were filed before the charges were placed. He supported the company saying that the Hancock Prospecting Group had paid billion of dollars as taxation in the year 2008.

    This fact has raised questions as to why private companies have to pay annual accounts to government when they have already paid tax on time while others do not. The spokesperson from Hancock Group also raised the question saying that ‘when government is attempting to introduce policies that alleviate the decline in the openings of small businesses, decline in investment, decline in explorations, is there a need for such government administrative actions?’

    ASIC commissioner defended the decision to prosecute

    In a statement, the ASIC commissioner who was in charge of the ASIC investigation defended the decision of prosecuting the penalty. He said that the financial accounts hold important information especially for creditors, shareholders and public as it helps them make informed decisions. The commissioner of ASIC further supported his defense saying that ASIC will continue taking enforcement action in opposition to companies who fail in meeting their financial reporting obligations.

    It is known that ASIC has prosecuted as much as 17 public companies, charging the same offense in the time period of July 2014 and April 2015. The Hancock prosecution is regarded as one of the most important. The maximum fine ordered in other prosecutions was $27,000.

     

     

    ASIC’s perspective over the issue

    The company has already been subjected to various over-regulation penalties. The owner of the company Gina Rinehart is supposed to be Australia’s richest person with a total wealth of $20 billion in 2014. However her wealth declined in the following year. The billionaire’s fortune was valued at $14.02 billion by BRW Rich List, 2015.

    In this case scenario, each company was initially charged a maximum penalty of $ 13,750. However, magistrate later found that the companies had pleaded guilty and filed the necessary outstanding accounts. This led to the reduction of penalties to $10,000.

    The magistrate addressed the court that this penalty be a reminder to the corporate world of Australia that the filings should be met in a timely and appropriate manner. He also said that high profile companies should be leading the way by meeting terms with relevant regulations.

    The action by ASIC was not a surprise act. The commission acted after a series of articles that appeared in the popular Sydney Morning Herald in 2012. The articles questioned why companies governed by several wealthy Australians like Rinehart, and Clive Palmer were not filing their accounts to the regulator as requisite.

    While government officials support this decision, some other agencies still disapprove it. In news, the Institute of Public Affairs published a note declaring that ASIC has lost its way while hopelessly distorting priorities. The Public Affairs earlier honored Gina Rinehart with ‘Free Enterprise Leader’ award.

    Effect on Rinehart’s projects

    According to some sources, the fine may affect the upcoming project of Rinehart Group of companies. As it happened, 2015 proves to be a landmark year for Gina as her new Roy Hill project is planned to initiate exporting iron or within the next couple months.

    The project was supposed to start exporting iron in September, but chief executive Barry Fitzgerald point that the project could be delayed to be started in October. The Rinehart’s new project Roy Hill is a joint business venture with a Japanese company Marubeni, Taiwan’s China Steel Corporation and Korean Steel giant POSCO.


     

  • ABA urges review of the proposed Australian citizenship bill

    The Australian Bar Association has urged that the newly proposed citizenship bill be reviewed. According to the ABA, the new bill is said to be unfair to individuals that are linked to terrorist organizations since their citizenship can be revoked on grounds that it is unconstitutional. In their submission, the ABA has warned that the drafted bill provisions are too broad for the Allegiance to Australia Bill 2015. The submission was presented to the Australian Parliamentary Joint Committee on Security and Intelligence. Also, according to the ABA, the immigration minister is given the extraordinary power to bypass the courts entirely in giving practical effect to revoking of an individual’s citizenship, as stated under the proposed citizenship bill.

    Since the proposed changes for the citizenship bill intends to look down upon the court’s judicial powers to find out the truth and impose punishment for various criminal offenses, the ABA further argued that the new bill has all the reasons to be viewed as unconstitutional. Fiona McLeod, ABA’s president, said that an individual can only lose his or her citizenship if they have been convicted of a relevant offense by the Australian court of law, giving an example such as an act of terrorism directed at Australians. Currently, section 5 of the Australian Citizenship Act 2007, states that an individual’s citizenship can only be revoked if the person is claimed to have served in the armed forces of a country that is viewed as an enemy of Australia.

    However, this is not the case with the new citizenship bill or the anti-terrorism law, because it would see individuals who engage in terrorist-related conduct or provide their services to a declared terrorist organization be stripped of their citizenship. In addition, according to ABA’s submission, this new bill could relate to minor offenses, omissions, not leaving out unintentional acts, and could also apply to individuals whose terrorist-related conduct is unproven. The ABA’s president expressed her worries in the new citizenship bill, based on the concern that the rights of Australians claiming that the new bill could have their citizenship renounced unfairly in case they have had contact with terrorist organisations under duress; against their will, unintentionally or inadvertently or have committed minor offenses.

    She stated that it was clear that a government official must always make a determination that an offense has actually occurred, but the new bill proposes that citizenship is renounced automatically by the citizen’s conduct; hence the government’s bill uses a legal sleight of hand. Ms. McLeod continued with her statement saying that she was worried about the bill because it poses much threat to loyal Australian citizens who work for humanitarian organisations since they could be negatively affected by the new citizenship bill and even worse, lose their Australian citizenship.

    In conclusion, the Australian Bar Association believes that the new bill treats the Australian citizenship as protection against threats to the society; hence the new bill uses citizenship as a tool of punishment, which should not be the case. The ABA also said that the new bill’s approach would be counter-productive to de-radicalisation and social inclusion.

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