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“I’m afraid my life isn’t that interesting,” says Justice Jane Paingakulam as we walk through the ornate Chief Secretary’s Building, where the NSW Industrial Relations Court resides. Of course, the Commission’s Deputy President is being modest and her career path makes for a captivating story. She hasn’t been shy of a challenge, no less so than in her current role, which comes at a pivotal moment for the historic institution. 

By this point of the afternoon, Paingakulam had spent a good hour posing for photographs around the imposing piece of Colonial Victorian Free Classical architecture nestled in the block bordered by Macquarie, Bridge and Phillip Streets. A building once described as “a poem in stone”, it has primarily been used by the New South Wales Government and today houses the Industrial Relations Commission.

Her office isn’t yet filled with documents and books wall to wall, so it feels larger than expected. And yet, interestingly, not empty. It makes sense. The Industrial Court only re-started operations in July 2024, after it was abolished in 2016. The effect of its resurrection was felt almost instantly. Paingakulam points out the Court started procedures precisely on the day the reforms to the Industrial Relations Act on the wages cap were implemented. “So there’s more genuine bargaining now between the government and the New South Wales public servants,” she says. “That’s meant there’s been a number of disputes that have been filed and awards that are being renewed”.

The three appointed justices were to hit the ground running. Next to Paingakulam is Ingmar Taylor SC, President of the Commission, and David Chin SC, Vice President. All three are experienced barristers. In Justice Paingakulam’s welcome ceremony, President Taylor declared “The resurrection of the Industrial Court coincides with the return of the important Work, Health and Safety jurisdiction – a criminal jurisdiction. Having someone with your expertise and experience on the bench is, in my view, vitally important.” Paingakulam points out that everyone from Commissioners to senior counsel to industrial advocates, have been part of an increase in workload since the Court has resumed and public servants are using the Commission to resolve industrial matters.

This meteoric demand validates the decision to re-establish the Court, even if, in reality, the caseload has taken some time to build. In July and August, they were mainly conciliating industrial disputes and case managing matters—some of which were proceeding to hearings, when this conversation was taking place in mid-October. The industrial relations reforms were a pre-election commitment by the Minns Labor government and supported by unions.

History of the court

Set initially as the Court of Arbitration in 1901, the Commission was established after failures in disputes between employers and employees. In 1908, it was finally established as the Industrial Court after the Industrial Disputes Act 1908, and at the time, it was constituted by a Supreme Court or District Court Judge appointed for seven years. Throughout the next 100 years, the Court would undergo a series of changes, different iterations, dissolutions and reincarnations. In 1912, it was established as the Court of Industrial Arbitration, and in 1918, supported by The Board of Trade, which conducted public enquiries about the cost of living and how it affected workers’ living wages. It also investigated and reported on conditions and welfare of workers.

In 1926, both the Court of Arbitration and the Board of Trade were abolished and replaced by an Industrial Commission, which added different versions and a constitution after a series of controversial decisions.

For several decades, new laws and amendments changed the scope of the body, including the Industrial Arbitration (Amendment) Act of 1937, which removed the Commission’s power to define a standard of living wages and the Industrial Arbitration (Amendment) Act 1943, which gave the Chairman power to decide matters where there was division, and increased the number of Commissioners to five. In 1981 and 1989, the Commission had its scope regarding apprenticeships clarified and in 1991, following a review of the state’s industrial laws and procedures, the Industrial Commission was abolished and replaced by the Industrial Relations Commission and the Industrial Court.

Then in December 2016, the Industrial Court was abolished again, without affecting the Industrial Relations Commission, and its remaining judicial member, Judge Michael Walton, joined the Supreme Court of NSW. One of the reasons for the dissolution was the decline in the workload since the Commonwealth took over the state’s private sector industrial relations matters. There was even a proposal for the Commission to merge with the NSW Civil and Administrative Tribunal (NCAT), which didn’t eventuate.

In his swearing in at the Supreme Court, Justice Walton remembered the impact of the Industrial Court: “The Judges of that Court have, over that long period of time, each given distinguished service to this community in the interpretation, application and enforcement of the rights provided by employment statutes and the awards and orders of industrial institutions established by them.”

“The embodiment of the jurisdiction of the Industrial Court in the Supreme Court should be taken as a recognition by the State of the importance that it attaches to those laws.”

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“Just having people that recognised my ability gave me the opportunities to do things.When you get championed opportunities come.”

The current day court

In December 2023, the Industrial Relations Amendment Bill 2023 re-instated the Industrial Court to preside over all manner of industrial matters including workplace health, safety matters and underpayments. “NSW will have a modern industrial relations system that enables fair wages to be negotiated and disputes to be resolved,” remarked Minister for Industrial Relations Sophie Cotsis.

As part of the plan to streamline and simplify the process, the judges work hard to try to conciliate industrial disputes and get the parties to agree to a solution before they have to go to arbitration. “It’s always better if people can come to a solution that everybody agrees they can live with because once you get to arbitration, they lose control of the process,” Paingakulam says.

So, how do you approach a new system that hasn’t functioned for eight years?

Paingakulam says that they had to re-invent it. “I’m here because of work health and safety prosecutions, which are criminal matters,” she says.

Before the appointment, Paingakulam was a criminal practitioner at the bar, and that criminal background was needed for the new court. It’s a process where the Crown and the defence work together to reach a resolution by talking to each other and addressing the issues head-on.

She explains the approach further. A criminal charge has a lot of elements in it, but in reality, a lot of facts are agreed on, and evidence is not objected to, so they can focus on the relevant issues where disagreement does exist.

“In pure crime matters, the parties talk to each other and go to trial on the elements that are genuinely in dispute. In WHS matters, the parties don’t generally talk, and everything is in issue at the hearing. It is that culture that I will be trying to change. I don’t know how successful I will be, but that’s the aim.”

A pragmatic purpose

Talking to Paingakulam, it is her notion of pragmatism that comes through. She brightens up talking about her job in a way that feels enthusiastic and curious as if she prepared her answer meticulously and is simultaneously finding something new about her thought process. There’s a sparkle in her eye when the Journal asks a question about her role more than anything about her personal life. Her professional achievements drive her, in good part, because they reveal someone who approaches every role with inquisition. A fluent speaker of French, she grew up interested in languages—one of the reasons she took an Arts Law degree. And learning a new language is like adapting to a new area of law. You apply structures you already know—your verbs and nouns—to a new reality. Similar rules, different processes.

There wasn’t much court time for the first couple of months, but the daily routine is changing. Most Mondays, Paingakulam says she has work health and safety lists. “All work health and safety prosecutions have to be case managed to the point where they get to the final hearing.” Once summonses are issued, the parties return eight weeks later, followed by a process of case managing, and a return nine weeks later. The workload depends on where all these processes are in the pipeline. Some weeks, they commence with three court hearings; other weeks, it can get to 10.

When she talks to the Journal, Paingakulam is preparing for a three-day hearing starting the following Monday on a police disciplinary matter. She reads back through the evidence, makes summaries to refer to the important points quickly, and reassesses the evidence.  “It’s not a secret that this is new to me”, she confesses. “I was brought in to do the work health and safety work because I have the criminal background, but I really enjoy the industrial work.”

Paingakulam remembers a colleague at Denman Chambers, where she worked for 10 years, who reminded her that judges, who preside over work health and safety matters in the District Court, did not necessarily have that background as lawyers themselves. 

Adapting to a new role is part of her enjoyment of law.  “I’m enjoying learning new things,” she says.

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“In [work health and safety] matters, the parties don’t generally talk, and everything is in issue at the hearing. It is that culture that I will be trying to change.”

Not the typical path

Looking at her past, this quest for something new is part of a larger pattern, and it’s related to that “unorthodox journey” of hers. Paingakulam didn’t jump from law school and into a law firm, to the bar and finally the bench. The daughter of an Indian surgeon and an Australian radiographer, Jane Paingakulam and her twin sister Lisa were born in Mackay, in Queensland, before the family settled in the small town of Merimbula on the South Coast of NSW. She figured she wasn’t cut out for medicine and decided to try law. At the time, she wasn’t sure if she had a clear picture of what to do, but after the course, she struggled to find a job. Her grades weren’t bad nor spectacular; she confesses that there were credits and distinctions “for the most part”, but at the time, it wasn’t easy for a woman with her name to get clerkships from private law firms. She notes that having not done a summer clerkship, it becomes harder to find a graduate job. So, public service was the most evident option.

Paingakulam started immediately at the Refugee Review Tribunal, followed by a short stint at a private practice. After just one year, she was back in the public service at the Office of Employment Advocate, where she developed her love for law enforcement.

“I wanted to get some real law enforcement teeth,” she says. So after the Office of Employment Advocate, she moved to ASIC for five years. If the former dealt more with civil cases, the latter gave Paingakulam the criminal experience she was seeking. She moved to a more managerial position, which opened the door to being involved in running the 2007 APEC conference in Sydney. She says this allowed her “to get some management experience in a different context.”

The experience was eye-opening, giving Paingakulam more exposure. She was suddenly around Prime Minister John Howard, running an international event at Government House. It’s easy to imagine how daunting it is to run a week-long mega event with the heads of state of 21 Asia-Pacific nations, be criticised by the public and businesses, and garnering the attention of protesters. And yet, to Paingakulam, the memories of this event were in the details, not the bigger picture. For example, she recalls Howard requested club chairs at one of the leaders’ meetings after he saw them at APEC 2006 in Vietnam. So the chairs had to be arranged, but there was one problem. President Gloria Arroyo of the Philippines is only 1.5m tall, and if her feet touched the ground, it looked like she was lower than all the other leaders. It was an awkward position that wouldn’t have gone down well for the photograph. So, the team had to create a unique club chair that circumvented this problem. The stand-in for this feat of couch engineering? Paingakulam herself.

After APEC, Paingakulam had the opportunity to run the Public Service Commission in NSW. “I loved that,” she says. “I loved being the boss, the fact that I was running the office and all the problems landed on my desk”. This is also when she worked with Lynelle Briggs AO, one of the people Paingakulam singles out as an essential influence in her career. She recalls Briggs, who used to run meetings with the head of the Department of Prime Minister and Cabinet, Terry Moran, head of Treasury Ken Henry, head of Finance Ian Watt and their New Zealand counterparts. “(one day) she said to me, can you come and take the minutes?”  Paingakulam fondly recalls that day inside that room where important talks were being held.

“I came away from that with stars in my eyes. Having someone like her giving me exposure like that was terrific”. For that young girl from Merimbula whose initial job prospects felt limited, working with Briggs was a defining moment for Paingakulam.

“Just having people that recognised my ability gave me the opportunities to do things, “she explains. “When you get championed, you know opportunities come.”

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“It’s always better if people can come to a solution that everybody agrees they can live with because once you get to arbitration, they lose control of the process.”

While working for the Public Service Commission in Sydney, Paingakulam had the opportunity to go to Canberra when her manager went on long service leave. But Paingakulam realised she actually wanted to carve out another path.

“I was laying in bed at night thinking—at the end of the year, my financial circumstances will be such that I can afford to take a pay cut and do something entirely different.”

Paingakulam calls it an act of God. She returned to Sydney and went to a CPD session done by David Bennett on the Haneef case— the Indian-born doctor falsely accused of terrorism. “I thought, you know what? I should give this a go.”

That was at the end of March. The following Monday, Paingakulam signed up to do the bar exam. Four months of hard study while working full-time paid off. She passed the bar exam on the first go.

“And then it just all kind of happened.”

It was back to the drawing board, at the position of re-invention. Like the law graduate who found her place in the public service, she was ready to take the risk.

“It was a bit of a plunge, but because I’d been the head of the Public Service Commission in NSW, I knew all the other Commonwealth agency heads”, she says. “So I thought if it doesn’t work out, somebody will have a job. I’m going to give it a go.”

She confesses it was scary, but there was no need for a plan B. “When I was at the bar, I was pinching myself. I can’t believe it. Here I am. I’m a barrister. I’m doing this.” But this was where her unorthodox path became an obstacle. Because Paingakulam didn’t have the usual connections, it was hard to find work.

“The first year I was doing mentions for all kinds of things—not just crime, personal injury, defamation, whatever”, she remembers. “And in the second year, I was in a three-month trial. But then the third year, I didn’t have much at all.”

Now, Paingakulam looks back and questions how she got through that time and stayed afloat. She had to do “little odds and sods” to keep going and occasionally would get a job from the Commonwealth DPP.

Paingakulam questioned her decision to take the bar exam until she gained a position on the Legal Aid panel. “There was a colleague who gave me appeal after appeal after appeal,” she explains. “He would take the appeal from Legal Aid, I would write it up, and he would appear on the ones that were appearing. And he just gave me appeal after appeal—and I don’t mean five or six, over a period of time, it was 40 or 50.” Following that, she gained a position on the Legal Aid panel.

“They were giving me so much work. Because I didn’t come through the traditional channels, Legal Aid or ALS, I wasn’t getting private defence work, I wasn’t getting much work from the Crown. It was all Legal Aid.”

This “good work” gave her another excellent opportunity to appear before high-level and senior judges. Paingakulam got to know the Court of Criminal Appeal well, which ended up opening the door to the Industrial Court.

While the work wasn’t particularly well remunerated, it felt rewarding. She points out times she had to work for no or very low rates of pay. “I really enjoyed representing offenders who, you know, even though they’ve committed horrible crimes, they’re entitled to have the law applied to them like everyone else,” she says.

Making a difference

That sense of reward from helping someone who doesn’t have access to justice, still permeates. It makes a difference in people’s lives. Paingakulam holds these memories tightly.

When speaking with the Journal, she shares the story of one of the first times she appeared in court in a criminal trial. The first time she’d seen someone who killed somebody else. The experience affected her profoundly.

At Paingakulam’s swearing-in ceremony, Law Society of NSW Senior Vice President Jennifer Ball, speaking on behalf of the Law Society of NSW, pointed out Paingakulam’s “compassionate approach for those appearing before the bench.”

Ball further observed the new Judge’s “awareness for both the individuals at the heart of matters as well as the legal counsel.”

Yet working so closely with people with drug addiction problems and plagued by unfortunate social circumstances exposed an emotional side to Paingakulam. “I think I only ever saw one armed robbery that wasn’t [related to] drug addiction,” she says. To her, there are people who had a bad start in life, who can’t deal with negative emotions, and need to find escapism. “As a Christian person, I think, well, they’re no worse than me, but for the grace of God go I, and if I had the starting life they had, who’s to say I’d be any different?”

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“Because I didn’t come through the traditional channels, I wasn’t getting private defence work, I wasn’t getting much work from the Crown. It was all Legal Aid.”

Paingakulam then recounts the story of an 18-year-old boy who had committed half a dozen armed robberies with a group of friends. He was probably peer pressured by his mates to accompany them, but he wasn’t under the influence of narcotics like they were. “The people committing the armed robberies were after cash and cigarettes at the service stations; the police found his fingerprints on the Arnott’s Shapes and Krispy Kreme doughnuts”. Paingakulam fought hard to give him a fairer sentence that took into account his circumstances. “There’s no doubt he’ll have learned his lesson; he won’t be doing that again.” She says actions do have consequences, people are left traumatised by acts of violence and the rule of law is important. “[B]ut at the same time, it is enormously rewarding when you get those kinds of results for people who are fundamentally disadvantaged”.

Paingakulam is acutely aware of the impact our background has on our actions and how it affects someone’s abilities to make rational decisions and cope in stressful situations. She admits to looking at these cases with a degree of compassion and thinking that if their lives had taken a different turn, they probably wouldn’t be there in front of the bench.

Even in the case of convicted offenders, there are innocent lives forever changed because of the actions of others.

She recalls a recent case where two of the accused people, who were later convicted on serious fraud charges, had young children. As the prosecutor on the case, Paingakulam believes the conviction was the right result, yet she holds space too for the young people who will be altered and affected by their parents’ imprisonment.

There is no weakness in Paingakulam’s admittance of compassion, but simply a stark realisation of the many fragilities of humanity.

“It probably sounds bad, but I think you do become a bit hardened to the gravity of it,” she says. “It probably gives you a bit of a skewed view of the world because I think robberies are happening everywhere because they’re on my desk all the time.” That’s possibly an inevitable sentiment, when you’re having to deal with so many of these issues. But it remains reassuring that a prosecutor can look at the prosecuted for what they are—a result of the upbringing of humans with faults.

“The Senior Counsel I worked with on that case asked me how would I have felt if they’d been acquitted? I would have been cranky because it wouldn’t have been the right result,” she says. “It’s just sad that the consequences of their actions are so devastating, not just for them, but for the people around them.”

Valuing the public sector

Paingakulam understands the importance of the public sector. In a way, her whole career was devoted to it – 14 years in the Australian Public Service, at the bar, working mainly with Legal Aid, and now as a judge of the Industrial Court. She calls for more funding for the system, especially Legal Aid. In 2024, the NSW government allocated over $126 million to Legal Aid, following the Justice On The Brink report from December 2023 that highlighted $484 million of investment was need for Legal Aid nationally. The same report explained how that investment would translate to more than $600 million in economic and social benefits in the long run.

The system still needs support, Paingakulam reminds us. “In the Local Court now, you can’t get legal aid unless there’s a real chance you’re going to gaol”, she notes. “So magistrates are sitting in courtrooms with a whole room of people that are not represented because they can’t afford [it], and there’s no real prospect they’re going to gaol.” For Paingakulam, this is an inefficient approach to the legal process that wastes the time of magistrates.

“The criminal justice system only functions because people like me were prepared to do a lot of work unpaid” she continues. “If that stopped, the criminal system would fall.”

In the Industrial Court, Paingakulam now deals with individuals and groups like unions. She finds dealing with collectives more complex because of the number of interests involved in the negotiations. However, in salary disputes, these deals have severe impacts on the economic position of the state and its citizens. “It affects everybody. The whole community,” she says. Paingakulam is acutely aware of the balancing act of this jurisdiction. “[The Industrial Relations Act] requires us to take into account the economic position of the state but also the need to maintain the real wages for employees.” In a way, she considers it not unlike criminal sentencing. “You’ve got things that weigh in favour of making the sentence harsher and things that weigh in favour of mitigation factors that you’d make it more lenient.”

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“As a Christian, I think, well, they’re no worse than me, but for the grace of God go I, and if I had the start in life they had, who’s to say I’d be any different?”

Character formed early

All this awareness of the people beyond the ruling and the dedication to abide by the rule of law can be traced back to her upbringing. She and her twin sister were eight years old when the family moved to Merimbula, and she admits the time on the South Coast was difficult. It was there that colour became an issue for the first time. “Kids can be horrible,” she says. “We were doing bush dancing and the kids don’t touch you.” It was hard for the sisters, who grew up in a mixed-marriage family where the concept of race wasn’t as evident.

Paingakulam sees this as a result of the isolation of remote communities. There weren’t many Indian people in Merimbula 45 years ago, and she had never identified as one. “As a woman with dual heritage, you were not always welcome.” As noted by NSW Attorney General Michael Daley at Paingakulam’s swearing-in ceremony, “advancement was sometimes tough. Perceptions were, at times, engrained. Persistence was required. Fortunately, your Honour is blessed with bucketloads of that.”

The two sisters stood by each other throughout. In her swearing-in address, Paingakulam singles out the importance her twin sister had in her journey. “To my twin sister Lisa, who has been with me from the start, and to her husband Simon, who tolerates us spending hours on the phone most weeks, thank you for your love, support and encouragement over the years. I would not be here today without you.”

After spending six weeks in France and coming back fluent in French, she applied to a university class for native French speakers. The professor warned her that the course was designed for French speakers and denied any attempt Paingakulam made to explain how proficient in the language she was. After a lot of pushback, the professor finally tried to convince her by demanding her French HSC score. “147 [out of 150],” says a proud Paingakulam.

“It was a complete colour prejudice. He took one look at me and went—don’t know you’re going to get in. It was one of those beautiful moments in life.”

And in that end is a moment that encapsulates the spirit of Paingakulam. Tenacious and pragmatic, but also, as Daley pointed out, filled with empathy. To decompress, Paingakulam likes to jog and watch tennis. She hasn’t attended the Australian Open in almost 20 years but won’t miss it this year. She’s attentive to my blunder of calling Monica Seles Spanish, noting that I probably meant Arantxa Sanchez-Vicario (I did). She’s played socially but reserves it for one of those things to focus on when she finally retires. Yet even in response to a question about hobbies and outlets, work, and the demands of it, are never far from her mind.

“The bar is very demanding, and while certainly there are pressures of judicial life, everybody says it is less stressful. I think all three of us judges would agree with that.”

So, what would her Honour say to her younger version facing the same dilemmas? “Don’t be afraid to take risks,” she replies. It was a risk to leave the government and go to the bar, and it’s certainly a risk to learn a new area of law in such an important position at the Industrial Court. “That’s easier to do as you get older. I guess you get more confidence and more resilience.”

And that’s the kind of growth that makes for a great story.


Photography: James Horan