Ten laws that need to change in 2015

I. Asylum Seekers, Children and the Migration Act 1958 (Cth)

By the Hon Alastair Nicholson AO, RFD, QC

The many changes made to this legislation over the years since the 1990s, culminating in the recent Migration and Maritime Powers Legislation Amendment Act 2014, have produced a situation where the Migration Act 1958 and the policies behind it are among the most regressive and unfair in Australian history.

They rank in infamy with the Stolen Generation and the historical ill-treatment of Aboriginal and Torres Strait Islander people and the White Australia Policy. Indeed they reflect aspects of the White Australia Policy.

Sadly, the legislation probably has the support of the majority of Australians. However, the time will come when Australians will regard it with the same abhorrence.

A particularly unpleasant feature is the secrecy that surrounds it and the fact that it strikes at children and families without compassion.

The question is how have we reached these depths? I believe the answer is a failure of leadership on the part of the two major political parties coupled with their descent into xenophobia and racism for political advantage, encouraged by News Limited and certain right-wing commentators.

To its credit, the Law Council of Australia and its constituent bodies have consistently opposed this approach.

The enormity of what has been done by successive governments is so great that it is difficult in the context of this essay to describe it. I think that this is best exemplified by examining the most recent amendments.

The new Act has (inter alia) the following effects: firstly, it removes references to the Refugee Convention from the Migration Act and provides a much more restrictive statement of the criteria for determining that a person is a refugee than that contained in the convention.

Parliament has thus unilaterally purported to alter the terms of an international treaty that has bound Australia since 1951 and which it helped to write.

This also has the effect of abrogating conventions such as the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights and has reversed a long- held Australian position of supporting the rule of law at international level. The effect will force the return of many persons regarded as refugees under the convention to countries where there is a high risk of their torture and death.

This is a direct attack upon the rule of law and calls into question the bona fides of Australia in relation to all other treaties to which it is a party.

Secondly, it reintroduces temporary protection visas originally introduced by the Howard Government, effectively removing the entitlement of refugees to permanently seek asylum in Australia. The reintroduction of these visas is an act of inhumanity that removes the hope of obtaining permanent protection visas from the 30,000 asylum seekers already living in the Australian community together with all refugees who have arrived since 19 July 2013 and removes hopes of family reunion from all of these people and their children.

This strikes yet another blow at the Refugee Convention. Their only hope of obtaining a permanent visa is to obtain a Safe Haven Enterprise Visa, which is illusory for most of them and provides no guarantees that it will produce such a result.

The 30,000 people already here are now subject to a so-called fast-track determination process of their refugee status, which is an arbitrary administrative process with a limited right of review which excludes the courts.

Thirdly, the government will now be able to secretly detain asylum seeker boats on the high seas and deposit them anywhere without court oversight or protection.

Again this contravenes international maritime law and in effect condones acts of kidnapping and piracy by Australian vessels under the Minister’s control. Rules of maritime law and natural justice are specifically excluded.

Overall the legislation confers powers on the Minister to deal with people’s lives for which he is not accountable and the exercise of which is not challengeable in the courts.

The previous Minister for Immigration secured the passage of this legislation just before Christmas 2014 by effectively using the children held in detention on Christmas Island and Australian detention centres as hostages. As the High Court recently held, he was under a duty to either deport these children or grant them visas as genuine refugees that would lead to their permanent residence in Australia (Plaintiff S4/2014 v Minister for Immigration and Border Protection 7 ANOR [2014] HCA 34).

It had always been open to him to release these children into the community. His offer to do so as the price of passing the legislation was a serious abuse and it is a matter of regret that sufficient of the Senate independents gave in to this pressure.

Meanwhile those on Nauru, including families and children and the men in Papua New Guinea, are held in appalling conditions and left in limbo pending being sent to unsuitable destinations such as Cambodia, and the Minister largely responsible for these outrages has been promoted to oversee Australia’s Social Security system.

This legislation must be repealed and a proper system introduced for refugees. The world is facing the greatest displacement of people since WW2 and Australia must return to the honourable position that it once held and play its part in dealing with this issue. Members of Parliament must start examining their consciences rather than information obtained from focus groups or the rabid sections of the media.

The Hon. Alastair Nicholson AO, RFD, QC is the Chair of Children’s Rights International and former Justice of the Supreme Court of Victoria, Justice of the Federal Court of Australia and was Chief Justice of the Family Court of Australia for 16 years.

II. Victims’ rights

By MARI VAGG and LIZ SNELL

It has been 18 months since the NSW Government abolished the Victims Compensation Scheme replacing it with a new Victims Support Scheme that drastically reduced financial support available to victims of sexual assault and domestic violence.

At the time, lawyers working with victims of crime, including Women’s Legal Services NSW, expressed alarm. One of our chief concerns was the retrospective application of the Victims Rights and Support Act 2013.

It is extremely unfair to reduce the amount of compensation payable after an applicant has lodged a claim, especially when the reductions are dramatic and the delays in determining matters have largely been out of the hands of applicants.

Applicants had a legitimate expectation their claims would be determined in accordance with the system under which they were lodged. Indeed, the government’s own review of the old scheme made a clear statement acknowledging that it would be “unfair to change these goal posts midway”.

Sexual assault survivor Katrina Keshishian vividly exposed the effects of the retrospective changes when she created an online petition and gathered more than 120,000 signatures in November 2014. Katrina shared her story of applying for victims compensation after being raped by three men in 2008.

She waited six years for her claim to be processed, during which time the compensation scheme was replaced, slashing her maximum entitlement from $50,000 to $15,000. Katrina is just one of many applicants devastated by the changes, many of whom perceive them as a clear message that society does not care.

For victims of sexual assault or domestic violence, speaking out is usually an enormous step, and applying for compensation is often part of a therapeutic journey.

Many victims say that no amount of money can ever compensate for their experiences. However, in Australia we do put dollar figures on injuries, including pain and suffering.

We do this in an attempt to redress the injustice suffered by victims of violence and show we care about them. We do this to show that society is opposed to violence and supports a safe, healthy community.

When victims compensation was slashed, the message sent to Katrina and so many others was the complete opposite. It was absolutely devastating. Many of our clients ended up requiring significant therapeutic intervention, including hospitalisation, to cope with the crisis.

But retrospectivity is not the only issue – the scheme also fails to adequately address the trauma suffered by victims of domestic violence.

There are four categories of recognition payments ranging from $1,500 to $15,000 available to victims of certain prescribed acts of violence, but there is no specific category of recognition payment for domestic violence.

It is not clear why there are recognition payments for a series of sexual and physical assaults perpetrated against a child, but no category for an adult victim of repeated other violence. Such ongoing violence against an adult is simply ignored, with repeated violent acts deemed a single assault. Some acts of violence here are very serious, including suffocation and strangulation, which are potentially fatal.

Victims who could have received $30,000 to $50,000 for chronic and severely disabling psychological injuries sustained as a result of domestic violence can now only receive $1,500.

Given that part of the purpose of providing a recognition payment is symbolic, telling a victim of horrendous violence that they are only eligible to receive $1,500 speaks volumes.

Another concern is the introduction of strict documentary evidence requirements, which require a report from police or a government agency, as well as medical evidence and evidence of loss such as receipts or invoices.

It is well established that there can be significant barriers to reporting to such agencies. It should not be necessary for a victim to provide prescribed forms of evidence. If a person is able to establish an act of violence and an injury on the civil standard of proof, that should be sufficient.

The new scheme is a huge step backwards at a time when there seems to be more awareness of the need to address violence against women than ever before. Victims of crime deserve our support, our recognition of their suffering, and our help to live safely.

Mari Vagg is a solicitor at Women’s Legal Services NSW. Liz Snell is the Law Reform and Policy Co-ordinator at Women’s Legal Services NSW, a state-wide community legal centre for women.

III. Mandatory sentencing

By Nicholas Cowdery AM QC

The sentencing of serious criminal offenders is probably the most difficult task judicial officers face. That is because they attempt to do justice – to impose penalties that are appropriate at the time to both the offence and the offender, weighing up all the objective and subjective circumstances bearing on the decision and applying the law. Justice must be done to the offender and the community. That process is frustrated if parliament takes away from the courts part of the role of sentencing – by mandating specific penalties or minimum penalties in legislation – before any offence has been committed and before the relevant circumstances in the case can be foreshadowed. While it may be easier for parliament to confine judicial discretion than it is for judges to exercise it, that is no justification.

In NSW we already have mandatory minimum sentences in:

• section 19B of the Crimes Act 1900 for the murder of a police officer in certain circumstances;
• section 61 of the Crimes (Sentencing Procedure) Act 1999 for murder with certain features and for serious heroin and cocaine trafficking in certain circumstances; and
• (since 2014) section 25B of the Crimes Act 1900 for hitting causing death while intoxicated (the misnamed “one punch” death offence).

Other Australian jurisdictions have ventured into the field in limited ways.

These laws should all be done away with and we should firmly set our faces against the creation of any more such penalties. A bill introducing half a dozen of them that lapsed in the last NSW Parliament should not be resurrected.

No judge sentencing for these offences wishes to be an instrument of injustice. In NSW we had precisely this occur in 1883-84 when mandatory minimum sentences were prescribed for five categories of maximum sentences. The results were unjust and the legislation lasted only one year and three weeks before sense prevailed. As George Santayana famously said, “Those who cannot remember the past are condemned to repeat it”.

One way of testing the justice of these penalties is as follows. Suppose there is a mandatory minimum sentence prescribed? If a judge (having received all relevant information and in accordance with the law) considers that a minimum sentence above that is appropriate, there is no need for it. If a judge considers that a lesser minimum sentence is appropriate, then the judge will be forced to act unjustly. That is already occurring in Australia and judges do not like it. Moves in the mandatory sentencing direction make plain the legislature’s lack of confidence in the judiciary, and that is a serious signal to the community. We are fortunate that in NSW (and Australia generally) there is no basis for such qualms – so parliament must leave it to the judiciary to do its important work according to proper professional standards.

If a single judge gets it wrong, an appeal court is available to correct it. There is no need for parliament to try to second guess, in advance, where justice may lie. The rule of law as we apply it and that we hold dear (and for very good reasons) requires the separation of legislative, executive and judicial powers. Mandatory sentences of any kind weaken that separation – by the legislature taking part of a task that belongs properly to the judiciary.

Former NSW Chief Justice Spigelman has said: “The preservation of a broad sentencing discretion is central to the ability of the criminal courts to ensure justice is done in all the extraordinary variety of circumstances of individual offences and individual offenders.” (R v Jurisic (1998) 45 NSWLR 209 at 221C).

Speaking this time in the context of making discretionary parole decisions, Spigelman CJ also said in an address to the NSW Parole Authorities Conference in 2006: “As is the case with respect to the task judges face when they come to sentence a convicted criminal, what is involved is a process of balancing overlapping, contradictory and incommensurable objectives. The requirements of deterrence, rehabilitation, denunciation, punishment and restorative justice do not point in the same direction. These tasks – whether sentencing or release on parole – involve a difficult process of weighing and balancing such matters.”

These are not tasks that can be done effectively by a body of legislators sitting in a factual vacuum.

The laws we have need to change and there must be no more of them. They are contrary to justice and to principle and have considerable undesirable and costly practical effects, including a disproportionate impact on the disadvantaged, on Indigenous persons, and on juveniles.

Nicholas Cowdery AM QC was the NSW Director of Public Prosecutions from 1994 to 2011. He is Adjunct Prof. at the Sydney Institute of Criminology, Visiting Professorial Fellow at UNSW and University of Wollongong, and has been a member of the NSW Sentencing Council since its establishment in 2003.

IV. The Australia tax and geoblocking

By Sarah Agar

In Australia, we pay significantly more for digital products than consumers in comparable markets, such as the USA or the United Kingdom. These high prices are linked to the lack of competitive pressure faced by content delivery businesses in Australia, rather than higher costs such as rent, wages or transport. Price differentials exist for non-digital goods as well. For example, clothing and cosmetics are particularly expensive in Australia.

Geoblocking refers to technological measures used by companies to implement international price discrimination. It restricts the products and websites available to consumers based on their location. A practical example is the iTunes store, where an Australian may be able to purchase an album for $15.45 from the Australian iTunes store but is prevented – based on their Australian credit card billing address – from buying the same products for cheaper in other stores, which are simply a mouse click away.

Section 116AN of the Copyright Act 1968 (Cth) states that a copyright owner whose work is protected by an “access control technological protection measure” can take legal action against a person who circumvents that protection.

The big question is: “Is a geoblock an ‘access control technological protection’ measure under the Act?” Unfortunately, there’s no clear answer.

The government has stated it is not illegal to circumvent geoblocks, but this has never been tested in court. In addition, the terms and conditions of specific websites may be breached if a consumer circumvents a geoblock in order to purchase goods or services. Technological measures that allow suppliers to discriminate against Australian consumers have an anti-competitive effect where they support significant price differences for Australian consumers.

Australia’s legal and policy framework should not support commercial strategies that sustain artificially higher prices. A priority for reform should be the removal of those barriers that restrict Australians’ access to competitively-priced goods and services from overseas.

This can be achieved in part by amending the Act to make it clear that consumers can take steps to circumvent geoblocks without breaching the law. Giving consumers more confidence to circumvent online geoblocks would provide immediate benefits.

About 340,000 Australian households currently access overseas-based subscription service Netflix, despite the presence of geoblocks and the fact the company does not advertise in Australia. A significant number of Australians are going out of their way to pay for Netflix when the service does not officially operate or promote itself here.

Much recent activity in the market for content has been attributed to Netflix’s growth and possible entry – ranging from Foxtel’s pricing changes to the launch of new streaming services seeking to provide consumers with more flexible options for purchasing and viewing content – underlining the benefits that competition from an international market can provide.

Reform in this area has strong public support, with 38 per cent of CHOICE survey respondents of the strong belief that they should not be blocked from accessing TV shows and movies from legitimate overseas websites. This is also not a new idea for reform – it was one of the recommendations arising from the IT Pricing Inquiry in 2013, but the Federal Government has yet to act. Based on the experience of the current market, it is clear that clarifying consumers’ rights to circumvent geoblocks will result in cheaper prices and more access to content for all Australians. Thereare plenty of laws that would benefit from change in 2015, but this is one reform that would provide fast, concrete benefits for Australian consumers.

Sarah Agar is a lawyer and policy and campaigns advisor at CHOICE.

V. Farm debt mediation

By Ian Coleman SC

The object of the Farm Debt Mediation Act 1994 NSW is to “provide for the efficient and equitable resolution of farm debt disputes. Mediation is required before a creditor can take possession of property or other enforcement action under a farm mortgage” (s 3). Disputes covered by the Act are those between farmers and secured or unsecured creditors with respect to farms, farming machinery and water licences (s 4).

In Waller v Hargraves Secured Investments Ltd (2012) HCA 4, Heydon J said the “background to the Act lies in the notorious problems which face Australian farmers. They include harsh climatic conditions, the vulnerability of crops and animals to disease: unpredictable volatility in prices on world markets; the tendency of farmers to be asset-rich but cash-poor: their dependence on loans; the risk of speedy ejection from their land if there is entire freedom for their creditors to enforce their general law rights, despite the possibility of remedying defaults if climatic and market conditions change, and the expense of and often delay in litigation as a means of keeping creditors within their rights” (at [28]).

In Varga v Commonwealth Bank of Australia (1996) NSWSC 86, Young J sagely suggested that the “object and purpose” of the Act was “to protect persons who are now conducting farming operations on land from being ejected by creditors”.

It is to be remembered that farmers produce the food and fibre on which our survival depends. The importance of “food security” is increasingly acknowledged.

The vast disparity of bargaining power between farmers and banks is not ameliorated by the Act, and often exacerbates its impact. The catalyst for mediation being the farmer’s default, the bank holds the “whip hand” at mediation. To suggest that the farmer goes to mediation “cap in hand” is to capture the spirit of the exercise. If granted, the price of an indulgence from the bank is often on more onerous terms than those that gave rise to the dispute.

The Act is silent as to how the costs of mediation are borne by the parties. The terms of bank “all monies” mortgages mean that farmers may well be meeting the whole of the cost of the mediation, whether there is agreement that each party pay half the costs, or, as sometimes occurs, the bank agrees to fund the mediation. The practice of some banks of retaining large Sydney law firms to represent them at relatively simple farm mediations adds to the farmer’s burden.

The Act should mandate that banks pay for the mediation, and be restrained from directly or indirectly seeking to recover any part of such cost from the farmer.

Without suggesting that banks never negotiate in good faith, or that farmers always do, the dynamics of disputes, and the fact banks generally will not negotiate on any basis other than sale or re-financing elsewhere, farmers’ options at mediation are constrained. The farmer’s difficulty is compounded by the reality that, irrespective of the viability of the farming enterprise, attempts to re-finance with another bank will be difficult, or impossible, as a consequence of the adverse credit rating that arises from the farmer’s default.

The Act, and other legislation with respect to credit ratings, should be amended to require banks and other financial institutions to reinstate the farmer’s pre-default credit rating within seven days of a successful mediation, during which period the time in which the farmer is required to re-finance does not run.

Section 11 of the Act provides that the Rural Assistance Authority (RAA), which administers the Act, must issue a certificate on the application of a creditor (the effect of which is to remove the stay on enforcement action with respect to the default created by s 10 of the Act), if, inter alia, it is satisfied that “satisfactory mediation has taken place” (s 11(1)(c)(i)).

The only basis on which such “satisfaction” could be based appears to be the mediator’s “summary of mediation” form provided for by s 18A of the Act. Properly, the mediator’s statutory obligation of confidentiality (s 14) and the sanctions provided for “disclosure of information” obtained at or in the course of mediation (s 16) mean the mediator can say little with respect to the “good faith” of the parties to the mediation. Even when the farmer seriously disputes that “satisfactory mediation” has occurred, for reasons such as lack of authority of a bare trustee to negotiate, the RAA, without further investigation or reference to submissions by the farmer, issues the s 11 certificate. In such circumstances, the farmer’s only choice is to challenge the validity of the certificate in the Supreme Court.

Section 11 of the Act should be amended to read “may” in lieu of “must” and, where the farmer disputes that satisfactory mediation has occurred, the RAA provide reasons for issuing, or refusing to issue, the certificate. Drafting legislative amendments to reflect the procedural nature of the suggested change, whilst preserving the necessary confidentiality of the subject matter of the dispute, would be unlikely to challenge the parliamentary draftsperson’s skills.

For many defaulting farmers, an orderly exit while some equity remains will be the best – and often the only realistic – option. Conversely, many farming enterprises could be sustainably viable if re-financed or re-structured in accordance with appropriate financial advice. The cost of publicly-funded accredited rural financial counsellors participating in mediations under the Act would have economic and social benefits for farmers and creditors far exceeding the cost of their involvement, particularly when compared with the public cost of bail-outs and hand-outs to defaulting farmers who could never be commercially viable. Only minimal legislative change to the Act would be required to facilitate such involvement.

Ian Coleman SC is a barrister at Culwulla Chambers, a Mediator with the Rural Assistance Authority of NSW, Adjunct Professor, School of Law UWS, former Commissioner of the Australian Law Reform Commission and former Judge of the Family Court of Australia.

VI. Medical marijuana

By Dr Alex Wodak and Peggy Dwyer

In NSW, possession, use and supply of cannabis are criminalised by the Drug Misuse and Trafficking Act 1985. There is no defence for the medicinal use of the drug, although it is reasonable to assume that proof of a genuine medical condition alleviated by cannabis would be taken into account as a mitigating factor on sentence.

In a number of jurisdictions overseas including 23 states and the District of Columbia in the USA, the Czech Republic, Israel, the Netherlands, Uruguay, Spain and Canada, the medicinal supply of cannabis is lawful, appears to have been unproblematic and provides a useful precedent. In the Netherlands, for example, there is an Office for Medicinal Cannabis, growers are licensed to produce certain quantities, the drug is prescribed by doctors and dispensed by pharmacists.

There are compelling arguments in favour of legalising the medicinal use of cannabis, but the two main ones are: firstly, the evidence is overwhelming that cannabis is very effective in relieving distressing symptoms in some conditions, especially when the conventional medicines have proved ineffective or had unacceptable side effects. To deny the drug to patients with these distressing symptoms is an unnecessary cruelty.

Secondly, making the drug illegal often compels patients or their families or friends, to commit a crime to relieve their suffering, and thus criminalises the compassionate and reasonable actions of those affected.

Until a few decades ago, medicinal cannabis was lawful in Australia. It was then withdrawn and replaced by medicines considered at the time to be more modern. Medicinal use of cannabis also became more difficult to reconcile with an approach to illicit drugs increasingly dominated by the criminal justice system.

From the 1970s, increasing evidence began to emerge that cannabis could be a useful medicine. Initially there were only anecdotal reports, but the number of published scientific papers began increasing despite major obstacles placed in the way of researchers. From the early 1990s the number of published scientific papers on medicinal cannabis began doubling every decade.

There are now more than 100 published randomised controlled trials (RCTs) of medicinal cannabis. Though criticised by some, RCTs remain the gold standard for medical research.
A recent review of the medical literature identified 82 favourable and nine unfavourable trials. Several major reviews by reputable bodies supported medicinal cannabis including a review commissioned by the NSW Government in 2000. The evidence is strongest for persistent nausea and vomiting following cancer chemotherapy, spasticity (stiffness) in multiple sclerosis, chronic non-cancer pain (especially if due to nerve rather than tissue damage) and wasting in advanced cancer or HIV. Medicinal cannabis is not regarded as a first-line drug for symptom relief and at present is not considered to cure any conditions.

The side effects of medicinal cannabis are well within acceptable limits and are much less than the untreated symptoms of these conditions or the side effects of conventional medicines. The side effects of recreational cannabis are often referred to by opponents of medicinal cannabis but are an inappropriate comparator.

The older pharmaceutical cannabinoid agents failed to gain a significant market because of poor and unpredictable absorption. A recently introduced pharmaceutical cannabinoid (nabiximols, Sativex®) has many attractive aspects but is virtually unavailable in Australia.

The likely cost ($500/month) is excessive for most patients with a severe chronic illness. High quality botanical cannabis is therefore the best option for medicinal use at present but is only available from illegal and unregulated supply sources. The least-worst form of administration is inhalation of cannabis vapour. Inexpensive and convenient devices for vapourising cannabis are now readily available.

In 2003, the NSW Carr Government proposed a four-year trial of medicinal cannabis, but the initiative stalled and for many years the issue fell off the political agenda. In recent times the debate has been reinvigorated and there seems little doubt that support for medical use is growing, both among the general population and politicians.

In May 2013, a NSW parliamentary committee reported on its inquiry into “the use of cannabis for medical purposes, if and how cannabis should be supplied for medical use and the legal implications of such use”. It unanimously recommended the use of medically-prescribed cannabis for terminally ill patients although not for those with chronic pain.

With varying degrees of enthusiasm, the push for legalisation of medical use has received support from unlikely bedfellows, including National MP for Tamworth, Kevin Anderson, Greens MP, John Kaye, Premier Mike Baird and Prime Minister Tony Abbott.

In mid-2014, Premier Baird expressed his sympathy for the use of medicinal cannabis after meeting the Haslam family, campaigning on behalf of their son, Daniel, who is battling bowel cancer and used cannabis to provide relief from the debilitating side effects of chemotherapy. However, Mr Baird later told the ABC that although compassion remained his “key focus in this debate”, any solution must address concerns in relation to supply and regulation.

In September 2014, Tony Abbott backed the medicinal use of cannabis in an email to the talkback host Alan Jones, who had publicised a petition signed by nearly 200,000 people calling on the NSW Parliament to allow cannabis use for the terminally ill and chronic pain sufferers. The same month, Premier Baird announced that a clinical trial would report to Parliament by the end of the year and the government would move forward with guidelines to ensure that police can exercise discretion not to charge terminally ill adults who use cannabis.

While there will be some benefits from conducting clinical trials in Australia, the urgent priority should be finding ways for suitable patients to have lawful and regulated supplies of medicinal cannabis. Any perceived risks of misuse can be managed by reasonable regulations over the sale, use and distribution of cannabis for medicinal purposes.

The reform will require an amendment to the Drug Misuse and Trafficking Act and the Poisons and Therapeutic Goods Act and consideration will need to be given to appropriate reforms at a national level.

If, as Premier Baird has claimed, compassion remains the key focus of any reform, then urgent action is required to allow for the supply, possession and use of cannabis for medicinal purposes for those whose chronic distressing symptoms can be alleviated by cannabis.

Dr Alex Wodak is President, Australian Drug Law Reform Foundation. Peggy Dwyer is a Sydney barrister at Forbes Chambers.

VII. Class actions

By Associate Professor Michael Legg

Class actions have become a source of great interest due to their facilitation of a range of claims arising from bushfires to financial products to pharmaceuticals. Some lead to major payouts such as the $500 million settlement of a Victorian bushfire claim and $200 million for the Centro shareholder class action. Others, such as the Great Southern class action, create enormous cost but achieve little.

The class action is a procedural device that combines the claims of numerous persons or entities and then allows a representative to litigate those claims on behalf of the group. For the aggregation and representation to be permitted, there needs to be a certain level of cohesion to the claims. The legislation seeks to achieve cohesion by requiring “same, similar or related circumstances” and “a substantial common issue of law or fact”. However, these provisions tend to allow for fairly loose groupings subject to the court determining that it is in the interests of justice to discontinue the proceeding as a class action, including because it is not an efficient and effective means of dealing with the claims.

Consequently, reforms have been put forward seeking tighter cohesion through lifting the bar on the level of common issues required. For example by reinterpreting “substantial” to mean large or significant rather than “real or of substance” (Wong v Silkfield Pty Ltd (1999) 199 CLR 255, 267) or by requiring a predominance of common issues as is the case in the United States. This would then limit the claims that could be combined. It would also mean fewer differences between group members that could give rise to conflicts of interest or the need to resolve individual issues. Before legislative change is sought, the courts should be given the opportunity to seek to maximise cohesion through case management powers. This may include ensuring clarity around common issues, testing whether the representative party has a claim that is suitable for resolving those issues, devising sub-groups or requiring the commencement of separate proceedings.

Part VAA of the Federal Court of Australia Act 1976 (Cth) governs suppression and non-publication orders. Such orders are to be made only if the order is “necessary to prevent prejudice to the administration of justice”. The High Court has observed that it is insufficient that the making of an order appears to be “convenient, reasonable or sensible, or to serve some notion of the public interest”. Rather, “necessary” sets a high standard (Hogan v Australian Crime Commission (2010) 240 CLR 651, 664).

The global settlement sum and the operation of the settlement distribution scheme should not be kept confidential. As Jessup J recognised in the Vitamins Cartel class action, fairness and reasonableness of a settlement requires consideration of not just the overall settlement sum “but also the structure and workings of the scheme by which that sum is proposed to be distributed among group members” (Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322, [41]).

Are all group members treated the same? Or do some group members have stronger claims or greater injuries so that they should receive more than other group members?

The class action settlement cannot be treated like other litigation where the people affected are present and wish to have the resolution of their dispute kept confidential. Class actions resolve numerous persons’ claims, primarily the claims of group members who are not before the court. Class actions also frequently perform a public function by being employed to vindicate broader statutory policies such as disclosure to the securities market or fostering safe pharmaceuticals.

Suppression orders undermine protection of absent group members and community confidence in the operation of class actions. To ensure that class actions primarily benefit group members and not lawyers or litigation funders when they are successful, oversight of lawyers’ and funders’ fees is a necessity.

In a class action settlement the court will review the lawyer’s fees as part of ensuring the settlement is fair and reasonable. However, the review relies heavily on a costs consultant appointed by the lawyers.

To ensure greater independence in the assessment of costs the person conducting the review should be a court-appointed expert (See Federal Court Rules 2011 (Cth) rr 23.01, 1.40). Greater independence of the costs expert would mean that both the court and group members could have greater confidence in the opinion provided.

The fees charged by litigation funders have rarely been examined when a settlement is approved.

A funder who facilitates the bringing of a class action by paying legal fees and accepting the risk of an adverse costs order clearly should be able to charge a fee. However, the funder’s fee like that of the lawyer, should be subject to review to ensure it is reasonable.

Michael Legg is Associate Professor, UNSW Law

VIII. Constitutional recognition of indigenous Australians

By Professor Larissa Behrendt

The inclusion or recognition of Aboriginal and Torres Strait Islander people in the Constitution is something that continues to be a part of law reform discussions. What that recognition would look like, however, is a source of much contention – especially within the Indigenous community.

Some recognition in the Constitution’s preamble would be the most minimal and symbolic option. As the 1999 referendum showed, the first trick would be the wording, and consensus on that is no small thing.

It was wrong that our nation’s first people were not included in the drafting of the Constitution, particularly at such a critical moment of nation building. This should be corrected by acknowledging in the preamble the special role and place Indigenous people have in Australia.

The Indigenous community is not united about constitutional recognition, and it is fair to say that the more a proposal is purely symbolic, the less support it garners. Arguments against purely symbolic recognition come most strongly from the sectors of the Indigenous community feeling the impact of cuts to essential services – family violence centres, community legal centres, educational support, and cultural activities that promote health and wellbeing for children.

For this most disadvantaged group, it is easy to sympathise with a view that asks, “What is the point of constitutional reform if I can’t afford to feed my family, I can’t afford to send my children to university, and my medical care is more expensive?”

In other words, the campaign for constitutional reform must mean more than just pretty words in a preamble.

A range of proposals for constitutional reform look at changing the text. A constant proposal is the removal of section 25, which permits states to make laws that prevent people of certain races from voting in elections. It isn’t used and it is unthinkable that it would be, but it sits in the Constitution to this day as a reminder of bigotry that we would no longer tolerate.

Other proposals often consider options that would strengthen the protection of Indigenous rights.

While there is an argument that rights such as non-discrimination are already protected by legislation, such as the Racial Discrimination Act 1975 (RDA), the argument for constitutional change stems from the way in which legislation such as the RDA has failed to protect basic rights at crucial moments.

Those protections have been suspended three times in the Act’s history: in relation to the Hindmarsh Island bridge dispute where the rights of Aboriginal people under heritage protection laws were suspended so they couldn’t challenge proposed developments over their traditional land; in relation to native title legislation that extinguished the rights of traditional owners without compensation; and in relation to aspects of the Northern Territory Intervention.

Suspending the RDA doesn’t just suspend the principle of non-discrimination: it also suspends the mechanisms for review and complaint should the impact of the laws be unfair or yield contrary results. In other words, it takes away a very important check on the exercise of executive power that assists in ensuring due process and equality before the law.

These instances were all arguably times when the creation of laws and policies would have been enriched by ensuring the goals were met in a way that was consistent with the fundamental principles of non-discrimination, due process before the law, and equality before the law.

I’m not for entrenchment of very specific rights in the Constitution.

They run the danger of becoming anachronistic, like the right to bear arms in the United States constitution. But you can imbue a document with principles.

In 1982, a section was inserted into the Canadian constitution that simply says: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed”. It didn’t list those rights, and the Supreme Court of Canada has interpreted it in a way that seeks to balance those rights with the rights of all other Canadians. Canada shows us what is possible as a high watermark and is certainly something that should be considered.

I support the removal of racist anachronisms in section 25 as a symbolic removal of the racist assumptions that dominated at the time of Australian Federation. I also support the inclusion of protection from racial discrimination.

For me, this is a reflection that our understandings of human rights have changed profoundly since the time our Constitution was drafted, and the most fundamental way to do that is the rejection of the notions of discrimination that were dominant at the time it was drafted.

Tony Abbott has indicated he will take a proposal for constitutional change to the electorate during his next term. At this stage, the details are a mystery, but there are possibilities to consider.

A simple prohibition on racial discrimination or a right to due process before the law and/or a right to equality before the law would reflect the more contemporary notions we have about inclusion and equality in Australia today, and would also embody the notions we have for a “fair go for all Australians” – Aboriginal and Torres Strait Islander people included.

Larissa Behrendt is a Eualeyai/Kamillaroi woman and Professor of Law and Director of Research at the Jumbunna Indigenous House of Learning at the University of Technology, Sydney.

IX. Consorting and organised crime

By David Porter

The new consorting provisions, introduced into the Crimes Act in 2012, allow police to label otherwise lawful associations a crime and to prosecute on that simple basis. The consorting provisions lack appropriate definitions, restrictions, and standards.

They were touted as a necessary tool in the fight against organised crime, but are serving as a convenient method of punishing unpopular people who have already served their sentences. Police officers can now issue warnings to anyone consorting with a person who has a conviction for an indictable offence. Consort with two offenders after being warned about each of them, and you can be charged.

Defences exist for consorting with family, for employment, training, health or legal services and importantly, consorting in custody, but the court must find the defence was “reasonable in the circumstances”.

The lack of a broader “reasonable excuse” defence drastically increases the likelihood of technically correct, but unjust prosecutions.

Before even reaching the stage of a charge, the consorting warnings themselves have the weight of extra-judicial punishment. Based on figures available to the Ombudsman, approximately 5,000 warnings have been made since the introduction of the legislation in 2012.

That number is likely to spike now that the High Court has ruled on the legality of the legislation (see Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [2014] HCA 35).

The disruption caused to organised crime is likely, however, to be minimal in comparison to the disruption caused to the rehabilitation prospects of those subject to/of official warnings who have no connection with organised crime.

Rehabilitation and reintegration into society are necessary parts of the criminal justice system, and yet the consorting provisions threaten the efforts of anyone who attempts to support a person re-entering society.

If the law was actually being aimed at hardened organised crime figures, then rehabilitation might be a less-relevant consideration, but that is not where the consorting warnings have been aimed. In the first 12 months of the legislation, only 11 per cent of the warnings issued were made by Strike Force Raptor and other specialist police.

The remainder were made by general duties police, and contrary to the racial profiling that the NSW Police Force has engaged in on organised crime, 40 per cent of the warnings were issued to Aboriginal or Torres Strait Islander people. These figures suggest that consorting was immediately seized on by general duties police to do their usual work.

The figures also support the contention that the primary tool in the eyes of police is the coercive and punitive power of the warning.

In 2012, there were more than 1,000 warnings. These resulted in only 14 charges. Even if that is presumed to demonstrate the deterrent power of the warnings, it remains true that these were warnings to stop engaging in lawful activity. That is little more than the arbitrary exercise of power. If the legislation had been drafted with consideration of its misuse, we would not have seen the disproportionate targeting of Aboriginal people – especially women and children.

Despite the government’s claims that the legislation was designed to target organised crime, the closest that the legislation gets to targeting a particular type of offender is to specify that they must have committed an indictable offence.

The lack of stringency in the legislation creates the ideal circumstances for the prosecution of “low-hanging fruit” – cases that are easily made, not the cases worth making. The first consorting prosecution of Charlie Forster is a perfect example of this.

Forster, a 21-year-old man from Inverell, who was born with an intellectual disability and cannot read or write, was convicted in 2012 and sentenced to 12 months imprisonment for a series of shopping trips and walks with three friends who have prior convictions. His matter is awaiting rehearing.

To find a sense of proportionality, procedural fairness, or anything resembling a suggestion to target those suspected of involvement in organised crime, we are forced to look beyond the consorting legislation to the NSW Police Force’s Consorting Standard Operating Procedures, but this document is not public. This is a sorry state of affairs for a statute, especially a criminal offence.

The consorting legislation is too arbitrary, the warnings too punitive.

The section is too broad and the misuse too pervasive. It is not targeting organised crime.
By finding a crime where before there was none, the legislation functions less as a mechanism of crime prevention and more as a means of crime creation. It should be repealed to remove the temptation of this particular variety of low-hanging fruit from the NSW Police Force.

David Porter is a senior solicitor at the Redfern Legal Centre and head of its specialised state-wide police complaints legal advice service. These are his personal views.

X. Driving and mobile phone use

By Professor Alex Steel

Research suggests driver distraction could be the cause of more than 20 per cent of all car accidents. Distractions include pets, children, applying make-up, drinking coffee, distracting advertising, changing CDs, reaching for moving objects and using electronic devices. Yet of all of these, only a subset of uses of a mobile phone is the subject of specific prohibition in the Road Rules 2014. Fixation on phone use ignores other driver dangers.

It is no more harmful to hold a phone than a hotdog or a coffee. It is not clearly more harmful to speak to a phone than a passenger. It is not clearly more harmful to glance at an incoming text on a phone cradled on a windscreen than to change CDs or look at a street map. It is not clearly more harmful to compose a text than to enter a driving destination into a GPS device. However, increasingly studies are demonstrating that serious risks can arise when drivers take their eyes off the road – for whatever reason – for more than a few moments whilst driving. Dialling a phone number is dangerous, but not driving with one hand and gesturing with the other. Writing a text while driving is very dangerous – but not while stopped at the lights. A large range of functions that in-car driver consoles can perform can be very dangerous if done while driving.

The “use mobile phone” offence should go. Instead we should have an offence of “failing to watch the road while driving”. Such an offence can be simply worded, makes clear what is the behaviour causing the harm to be prevented and is not bound to any form of technology.

Of course, writing a text while driving would be clear evidence of a breach of such an offence.

Because the Road Rules constrain otherwise lawful activity, such offences also should be defined in a way that is simple to understand, based on a fundamental type of behaviour by the driver and based on evidence that that behaviour causes an unacceptable risk of harm. Exceeding the speed limit (rule 20) and not wearing a seat belt (rule 264) are two good examples of such offences.

However, the “use mobile phone” offence in rule 300 fails to be simply expressed and fails to prohibit behaviour that clearly causes harm or prohibit a clear form of driver behaviour.

Far from being a simple summary offence, rule 300 runs to 481 words plus additional definitions of terms elsewhere in the rules. The definitions of terms often are either unhelpful or turn ordinary meanings into terms of art. For example, the driver must not use a phone while “stationary, but not parked”. Park is defined as “includes stop and allow the driver’s vehicle to stay (whether or not the driver leaves the vehicle)”. When coupled with rule 300, the meaning becomes entirely circular. There is also no clarity on whether the engine can be running or the handbrake on etc.

The “use” of the mobile phone is defined to include a range of defined actions and then a counter-intuitive prohibition on holding the phone. Use of a phone in a cradle or via Bluetooth was finally exempted from the offence in 2012 but only for “mak[ing] or receiv[ing] a phone call (other than a text message, video message, email or similar communication) or to perform an audio playing function” or “as a driver’s aid”.

Confusingly, rule 300(4)(b) also deems any entering or placing anything by the use of voice into the phone as not amounting to a use – which suggests that using voice-activated Siri or Google Now services to read emails is a permitted use. Bizarrely, despite all the verbiage, “mobile phone” itself remains undefined. It is unclear whether an iPad, a Samsung Galaxy Gear watch or Google Glass is a phone.

There is no need for these complexities. Instead of tying the offence to a rapidly changing technology, the offence should prohibit the underlying behaviour of the driver that causes harm.

Alex Steel is Professor, Associate Dean (Academic), UNSW Law.