By Henry Ea -
A journey through the archives of the Law Society Journal.
The year 2000: as dawn broke on the new millennium the world became more digital
The Y2K bug never came, and civilization didn’t end, leaving some with an excessive amount of non-perishable goods. Prime Minister John Howard introduces a new tax system called the Goods and Services Tax (GST). The Law Society president, John North, oversees the nearly 16,000 practising solicitors in NSW. Cyberspace is becoming the new frontier for solicitors as new technology and regulatory changes increase competition for work. Internationally, the dot-com bubble bursts, impacting the global economy. The Concorde fleet is grounded following the tragic crash of Air France Flight 4590, claiming 113 lives. On the political front, Vladimir Putin is elected President of Russia, and an incredibly close and controversial US presidential election is eventually decided by the Supreme Court in favour of George W. Bush. Back home, Sydney welcomed the world to the “best Olympic Games ever” triggering a wave of national pride and sporting achievements. The year also witnessed the birth of Wotif.com, Australia’s first online travel booking website, a significant milestone in the country’s digital landscape. In entertainment, Powderfinger dominates the music scene, winning multiple ARIA awards and gaining international recognition. The iconic television show Backyard Blitz captured the nation’s attention, sparking a DIY home renovation craze.
Guide to thriving under the new goods and consumption tax regime for solicitors
In February, in preparation for the GST introduction in July 2000, the Law Society’s GST Technical Team publishes a comprehensive guide in the Journal on how to implement it into practices. The guide details the major legal practice issues solicitors need to address to survive and thrive under the new tax regime.
It is a major overhaul of the country’s taxation system: a broad-based 10 per cent consumption tax on most goods, services, and other items sold or consumed in Australia. Its introduction was a complex and controversial process.
Prime Minister John Howard vowed to “never, ever” introduce the GST during the 1996 federal election. But following a High Court ruling that franchise fees charged by the states on cigarettes, alcohol and fuel were unconstitutional, thus removing revenue from the states, Howard changed his stance and proposed that the GST would replace all existing sales taxes, as well as applying to all goods and services in the lead up to the 1998 election.
The government faced significant opposition from some sectors of the community, who argued the tax would be regressive and disproportionately affect low-income earners. However, the government maintained the GST was necessary to simplify the tax system, reduce compliance costs for businesses, and provide a stable and growing source of revenue for the states and territories. For solicitors, the GST required legal practices to review internal administration and management to create systems and records that allowed practices to appropriately track work, expenses, and income.
At the same time, it would provide opportunities for creating better systems and re-establishing relationships with clients, many of whom were perplexed by the GST legislation and were looking to their legal advisers for sound information and advice about their new obligations. Despite the initial challenges, the GST has become a well-established part of Australia’s tax system and continues to play an important role in funding essential public services.
Backlash on ‘misguided’ AVO arguments in Journal feature article
In February, the Journal receives backlash for two articles published in its December 1999 issue about Apprehended Violence Orders (AVOs). The authors of the articles, Michael McMillan and Trevor Nyman, are seen as attempting to discredit the AVO provisions of the Crimes Act 1900 and distorting the debate about AVOs by misusing the language of civil libertarianism, manipulating statistics, and selectively using case studies. McMillan and Nyman claim AVO proceedings unfairly criminalise defendants despite a lack of evidence of a crime. They argue AVOs should be treated differently from other civil proceedings and that the civil standard of proof shouldn’t apply. However, Legal and Policy officer, Natalie Gouda says this argument fails upon scrutiny. She says AVOs can be issued for non-criminal conduct, and their impact on firearm licenses is consistent with other non-criminal grounds for refusal.
The articles also suggest a high incidence of false AVO complaints, citing cases unrelated to domestic violence and misinterpreting withdrawal rates. They also misrepresent data on dismissed breach charges and low police response rates, ignoring the broader context and underreporting of breaches.
Gouda said, “the arguments they present are neither well-informed nor substantiated by other than a bizarre manipulation of statistics.”
“The real abuse is that inflicted on the people – predominantly women and children – who experience domestic violence and who are constantly required to defend their right to protection and safety within their own homes.”
Then NSW Attorney General Jeff Shaw added that it displayed “a failure to understand the nature of AVO proceedings, their effectiveness in protecting people from future violence or abuse and recent developments in this area of the law.”
The articles’ arguments reflect a denial of domestic violence’s prevalence and prioritising defendants’ rights over ensuring the safety of those experiencing abuse: an issue still being fought for today.
New era for expert witnesses to improve impartiality
In June, the NSW Supreme Court overhauls its rules and practices for expert witnesses to improve their impartiality and transparency. An article published in the Journal outlines these changes, particularly relevant to medical negligence claims that often involve complex technical issues. The new rules emphasise the expert witness’s overriding duty to assist the court impartially, rather than acting as a “hired gun” for one party. This is reinforced by a Code of Conduct that experts must adhere to.
The Code of Conduct mandates specific content in expert reports, including qualifications, underlying facts and assumptions, reasons for opinions, and any qualifications or limitations to their conclusions. It also requires disclosure of any changes in opinion. Expert conferences, where experts with conflicting opinions meet to try to reach agreement, are encouraged under the new rules. These conferences aim to streamline the litigation process by clarifying and potentially resolving disputed issues. The Code of Conduct applies to court-appointed experts as well.
Although these changes are promising, there is concern that there is no clear guidance on the materials to be provided to experts during conferences. A working party is established to develop guidelines on this and other matters.
The new rules signal a shift in how expert evidence is presented and considered in court. They are expected to lead to more efficient and cost-effective resolution of medical negligence cases, while ensuring the impartiality and transparency of expert witnesses. Similar rules would be adopted in other jurisdictions in the future.
Law in the digital age
In July, the increased availability of legal software products, or ‘eServices’, is changing the legal landscape. While some fear these tools could replace lawyers, others see them as an opportunity to enhance client relationships and tap into new markets.
An article appears in the Journal analysing eServices such as virtual advisors and online deal rooms, which are designed to streamline or even replace tasks traditionally done by lawyers. While some argue these services cannot replicate the judgment and skill of experienced lawyers, others believe they offer a cost-effective solution for repetitive or “process” tasks.
The rise of eServices also presents opportunities for the legal profession. They can free up lawyers to focus on more complex legal work, generate new revenue streams, and even tap into the “latent legal market,” which consists of individuals and businesses who would benefit from legal advice but find traditional methods too expensive or inconvenient. Legal expert systems, like Blake Dawson Waldron’s Virtual Lawyer Advertising, ask the user questions about the proposed advertising copy and indicate whether the copy would breach trade practices or other relevant legislation. The system’s conclusions and the advertising copy are then emailed to a nominated person, who might be an in-house counsel or an external lawyer.
It’s just one example of how eServices can provide accessible and cost-effective legal guidance. However, not all legal work can be replaced by technology. Fast forward to today, and even with the advancements of technology such as AI, human interaction and judgment are still necessary for legal practice.
Genetic testing outpaces law
By October, advancements in genetic testing, which allow for the identification of potential diseases, are outpacing the law’s ability to address the resulting ethical and legal concerns. An article published in the October issue of the Journal highlights these concerns.
Genetic discrimination, particularly in insurance and employment, is a major issue. People who undergo genetic testing and are found to have a predisposition to certain diseases are often denied insurance coverage or employment opportunities. This discrimination can deter individuals from getting tested, even though early detection can improve health outcomes.
Privacy is another concern, as genetic information reveals details not only about the individual but also their family members. While the Privacy Amendment (Private Sector) Bill 2000 aims to protect genetic information, its effectiveness remains to be seen. Further, the possibility of genetic testing impacting criminal liability and sentencing raises questions about the concept of mens rea, or guilty mind. If certain genes are linked to anti-social behaviour, how should the law account for genetic predispositions?
The patenting of human genes by companies and governments also raises concerns about intellectual property rights and access to genetic information, particularly for developing countries. This has been likened to a new form of imperialism, where wealthier nations control genetic data.
The rapid pace of genetic technology poses a challenge for lawmakers to keep up and create appropriate regulations. Justice Michael Kirby questions whether democracy can effectively address the issues arising from these advancements in a timely manner.
The dawn of international criminal justice
The 1990s saw significant advancements in the international community’s efforts to hold war criminals accountable, including the establishment of tribunals for the former Yugoslavia and Rwanda, and discussions on establishing tribunals for Cambodia and Sierra Leone. National efforts have also seen progress, such as the indictment of Chad’s former dictator and the legal proceedings against Chile’s former military dictator Augusto Pinochet.
However, these efforts were ad hoc and lacked a permanent international forum.
The establishment of the International Criminal Court (ICC), adopted in 1998, seeks to fill this gap. The ICC will have jurisdiction over genocide, crimes against humanity, war crimes, and aggression committed after it becomes operational.
Its unique features include jurisdiction over the most serious international crimes, an independent prosecutor with the power to initiate investigations, and the principle of complementarity, meaning the ICC will only intervene when national authorities are unable or unwilling to prosecute. It would also include extensive definitions of crimes and procedural safeguards for the accused, and provisions to ensure cooperation from state parties.
While the ICC, which was formally established in July 2002, faces challenges in implementation and will require ongoing support from the international community, it holds great promise for combating impunity for perpetrators of the most serious crimes.
Its establishment represents a crucial milestone in the evolution of international criminal justice, marking a significant step towards greater accountability, and deterrence for those who commit heinous crimes.
The Hot Topics:
- Australian law firms’ websites become more sophisticated: By the year 2000, Australian law firms have increasingly developed sophisticated websites to deliver legal information to clients. Freehills’ website stands out with its intelligent list-serve agent that sends personalised email newsletters to users based on their chosen areas of interest. This ensures that clients receive relevant and timely information. However, the website has some readability issues with its colour scheme. In contrast Middletons Moore and Bevins’ website addresses the issue of liability by displaying a disclaimer before users access their publications. This disclaimer emphasises that the information provided is general in nature and should not be considered a substitute for tailored legal advice.
- A smoke-free environment: The Smoke-Free Environment Act (NSW), effective from September 2000, aims to ban smoking in enclosed public places. Occupiers of these spaces, like shopping centres and restaurants, must prevent smoking on their premises and stop smoke from spreading from designated smoking areas. Non-compliance can result in penalties. Individuals caught smoking will receive a warning in the first year of implementation, followed by potential fines thereafter. Environmental health officers enforce the Act. Exemptions exist for specific areas in hotels, clubs, and casinos, but smoke cannot permeate smoke-free zones. The Act mandates clear “No Smoking” signage, except where smoking is universally understood to be prohibited (like in libraries). It aims to safeguard public health by reducing exposure to second-hand smoke and promoting healthier environments.
