Insights
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...
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. How prepared was your Library to respond to the current crisis in terms of your “work from home” arrangements...
Dealing with personal information security breaches
There is no single way of responding to a personal information security breach. Each breach must be dealt with on its own merits. This will require the business to assess the breach, the risks involved and the possible consequences that may flow from the breach. That assessment must be used to determine what steps the business must take to stop the breach (or stop it from reoccurring), investigate the reasons why the...
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. In doing so, the business will need to direct and consult with its employees, consider discrimination and...
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. Complete this form for complimentary access to the full article published in the Torts Law Journal. How do you balance public interest in fair comment over ridicule and satire and how does this help...
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. Many family law practitioners would agree that a redraft of the Family Law Act 1975 , as recommended by the Australian Law Reform Commission (ALRC) report , is long overdue. Under the current...
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...
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. Felicity is an international QC, at Carmelite Chambers, London and Crockett Chambers, Melbourne, defending in serious and complex criminal trials and appeals. She’s also Professor of Legal Practice at Deakin...
Forensic Evidence Miscarriage of Justice - Infographic
Contact our Experts Now
Freedom of expression vs the employer's right to regulate employee behaviour: why the Folau case wasn't about religion
The question of how far an employer's right to regulate employee behaviour extends is one that is vexed for both employers and employees. This battle of rights: an employee's right to hold and express personal beliefs versus the right of an employer to set boundaries on employee behaviour both for the protection of legitimate business interests and employee wellbeing, played out recently following Rugby Australia's termination...
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...
Joint Select Committee on Australia’s Family Law System
Interim report of improvements in family law proceedings – an overview 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. Background The Joint Select Committee on Australia's Family Law System, chaired by Hon Kevin Andrews MP, was appointed in September 2019. The terms of reference...
Lessons from the IOOF Case
A recent decision of the Federal Court in Australian Prudential Regulation Authority v Kelaher [2019] 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 . In this case APRA sought disqualification orders...
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. In this article, Queensland barrister Polina Kinchina of Murray Gleeson Chambers...
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 10 th 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...
New-found workplace flexibility or economic disaster
After years of relative stability, Coalition Government moves against trade unions, and a recent Federal Court of Australia decision related to casual workers that is currently being appealed at the High Court, 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....
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). This model term does not apply to employees covered by an existing enterprise agreement (EA), although it will need to be considered...
Privacy by design
Privacy by design is a practical framework that aims to “embed” privacy into the design and architecture of information systems, business processes and networked infrastructure. It aims to ensure that privacy is considered before, at the start of, and throughout the development and implementation of initiatives, projects and products and services that involve the collection and handling of personal information. What...
Thinking outside the box
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. Removing disused registered trade marks from the register is in the public interest, according to Andrew Sykes, author of Australian Trade Mark Opposition Law , 2 nd ed, 2019. The register should not be a graveyard of trade marks...
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. Before the arrival of COVID-19, there was strong community support...
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...
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. From 28 September, the JobKeeper rate will move to a two-tiered system, dropping from $1500 per fortnight across the board to $1200 for...
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...
The Law of Bankruptcy Notices and Creditors’ Petitions
Q & A with Nicholas Simpson 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 13 th...
Victoria’s new workplace manslaughter laws: it’s all in the messaging
Victoria’s new workplace manslaughter laws: it’s all in the messaging Dr Eric L Windholz MONASH UNIVERSITY | Employment Law Bulletin 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. The laws create no new occupational health and safety (OHS...