Message from the Chair

Vale James Crawford
Judge of the International Court of Justice

On 1 June 2021, the Attorney-General Michaelia Cash issued a note expressing sadness at the passing of James Richard Crawford LLD, FBA, AC, SC, Judge of the International Court of Justice – distinguished international lawyer, eminent academic, teacher and mentor.

Judge Crawford's career spanned five decades, in which he demonstrated dedication to the study, teaching and practice of international law and made an unparalleled contribution to the international and Australian legal community.

Minister for Foreign Affairs and Minister for Women, Senator the Hon Marise Payne also acknowledged his service to the international community in the peaceful resolution of disputes and the international rules based order.

Prior to his election as a Judge of the International Court of Justice in 2014, Judge Crawford was an eminent scholar and barrister. The Attorney-General acknowledged that he was an outstanding advocate who appeared regularly as counsel for Australia in international litigation. Judge Crawford also served as Commissioner of the Australian Law Reform Commission and as a Member of the UN's International Law Commission, where he made important and lasting contributions to the development of the law.

Further biographical details are available on the International Court of Justice website.

Privilege against exposure to penalty, legal professional privilege, public interest immunity, and without prejudice privilege cast notes

The following case notes have been provided by Stephen Tully, Barrister, Sixth Floor, St James' Hall Chambers.

State of NSW v Biber [2021] NSWSC 47

The NSW Commissioner of Corrective Services claimed public interest immunity over certain documents. One document was the minutes of a meeting of the High Risk Offenders Assessment Committee (the Committee) which had recommended that no application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) should be made with regard to Mr Biber (the defendant). Read more.

In the matter of Timor Sea Oil & Gas Australia Pty Ltd (in liq) [2020] NSWSC 1832 

The plaintiff sought a decommissioning scoping study report prepared by Woodside for the Commonwealth of Australia in relation to a production storage facility and/or an oil field. The Commonwealth made an application for certain paragraphs of an affidavit made by the First Assistant Secretary, Cabinet Division, be read in support of its claim of public interest immunity. It relied on s 130(1), Evidence Act 1995 (NSW): if the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence. Read more. 

Okewood Pty Ltd v Commissioner of the Australian Federal Police (No 3) [2021] FCA 2 

Okewood Pty Ltd and others (the applicants) sought orders that the Commissioner of the Australian Federal Police (AFP) be prohibited from inspecting any documents seized by the AFP until the applicants had identified those documents which were the subject of legal professional privilege. The applicants also sought orders restraining certain named persons, including current and former AFP officers, from inspecting documents that were not subject to any privilege claim but contained confidential information such that privileged information might be misused. Read more. 

CUB Australia Holding Pty Ltd v Commissioner of Taxation [2021] FCA 43

CUB Australia Holding Pty Ltd (CUB) sought judicial review of a decision of the Commissioner of Taxation (the Commissioner) to issue a notice under s 353-10 of Schedule 1 to the Taxation Administration Act 1953 (Cth). That provision provided that the Commissioner may require information to be provided for the purpose of the administration or operation of a taxation law. CUB had previously claimed legal professional privilege over the titles of the certain documents or the subject lines of emails as well as the names of the authors and recipients. CUB contended that s 353-10 was being improperly exercised because, by issuing the notice, the Commissioner’s purpose was to determine the validity of CUB’s legal professional privilege claims. Read more.

Jess v McNiven, in the matter of McNiven [2021] FCA 53

Communications or documents made in connection with settlement negotiations are not abduced unless a court is likely to be misled by other contradictory or qualified evidence: s 131(2)(g), Evidence Act 1995 (Cth). The broad view of that provision allows ‘without prejudice’ communications to be adduced where other evidence is likely to mislead the court, unless evidence of the communication is adduced so as to contradict or qualify that evidence. The narrow view requires a causal connection between a party’s reliance upon the privilege and the court being misled. In this case, the respondents (the McNivens) asserted ‘without prejudice’ privilege communications between their representatives and the applicant Trustees of the McNivens’ bankrupt estate. The McNivens pled silence and inaction by the Trustees and detrimental reliance as part of an estoppel defence. The disputed documents involved correspondence and incidental internal documents concerning the administration of the estate. Read more. 

Alphington Developments Pty Ltd v Amcor Limited (No 4) [2021] VSC 6

Amcor Limited sought to inspect documents produced upon subpoena by architects and town planners engaged by Glenvill to assist with the development of a site. These consultants did not hold legal professional privilege in those documents. Nevertheless, Glenvill asserted privilege on the basis that they evidenced communications made for the purpose of Glenvill obtaining legal advice from Planning & Property Partners Pty Ltd and Minter Ellison with respect to the development process. Read more. 

Federal Court Case Management Handbook

The Federal Court Case Management Handbook is a handy reference tool for practitioners. It is available here.

Selection of Judicial speeches and other publications

March - June 2021

4 March 2021: Justice Banks-Smith: "Courts, Confidences and Change in Challenging Circumstances" presenting the Quayside Chambers Oration, at Perth Concert Hall. Read more.

10 March 2021: Justice Lee: "Washington Diaries of Owen Dixon" published at the Southern Highlands Newsletter #241. Here Justice Lee reviews a new book "The Washington Diaries of Owen Dixon 1942-1944", which is edited and annotated by Philip Ayers (Federation Press, 2020). Read more.

19 March 2021: Chief Justice Kiefel AC: "Shaping Legal Minds - the ethical mind", Queensland Law Society Symposium, Customs House, Brisbane. Read more.

27 March 2021: Chief Justice Kiefel AC: "Judicial independence – from what and to what end?", Austin Asche Oration, Australian Academy of Law and Charles Darwin University, Hilton Hotel, Darwin. Read more.

20 April 2021: Ceremonial sitting of the Full Court to welcome the Honourable Justice Halley: Read more.

Appointments to the Federal Circuit Court of Australia

On 1 April 2021, the Attorney-General announced that Senior Registrar Colin Campbell, Ms Jennifer Howe and Mr Jonathan Davis QC were appointed as judges of the Federal Circuit Court of Australia (FCC), commencing 6 April 2021. Read more.  

On 13 May 2021, the Attorney-General announced that Ms Sandra Taglieri SC and Mr Marcus Turnbull SC had been appointed as judges of the Federal Circuit Court of Australia (FCC).  Read more.  

Appointment - Judicial Registrar

On 19 March 2021, the FCA announced the appointment of Peter Schmidt as National Judicial Registrar and District Registrar at the Federal Court of Australia.

Mr Schmidt has over 30 years’ experience practising in litigation and commercial disputes, specialising in insolvency and restructuring. Since September 2020, Mr Schmidt was a Senior Consultant at Norton Rose Fulbright, Brisbane and prior to this position, Mr Schmidt was a Partner for over 20 years at Norton Rose Fulbright Australia, Brisbane and was Head of Office from 2012 until 2017. Mr Schmidt will undertake a diverse range of high level legal work across the Court’s national practice areas, including conducting complex mediations and case management in support of judges.

Mr Schmidt commenced at the Court on 15 March 2021 in Brisbane.

Appointments to the Fair Work Commission

On 1 April 2021, the Attorney-General announced the appointment of five new Fair Work Commission members.

• Mr Michael Easton
• Ms Bernadette O'Neill
• Mrs Sophie Mirabella
• Mr Phillip Ryan
• Ms Alana Matheson

Read more.

Attorney-General reappoints Commonwealth Director of Public Prosecutions

On 13 May 2021, Attorney-General Michaelia Cash announced the reappointment of Ms Sarah McNaughton SC as Commonwealth Director of Public Prosecutions for a period of two years.

The Attorney-General said the retention of Ms McNaughton’s expertise will ensure the Office of the Commonwealth Director of Public Prosecutions continues to provide an independent prosecution service to the highest possible standard.

“Since her appointment in 2016, Ms McNaughton has provided skillful leadership of the Office of the CDPP and demonstrated strategic vision during a period of significant change in the prosecution environment".

Australian Law Reform Commission News

International Perspectives on Financial Services Regulation Examined

On 24 May 2021, the ALRC hosted a webinar featuring a panel of international experts who compared approaches to the design of financial services regulation across different jurisdictions.

Justice Sarah Derrington, President of the ALRC, chaired a panel discussion that covered panellists’ views on the strengths and weaknesses of corporate and financial services law in their jurisdiction, the use of definitions to define the boundaries of regulation, and the role and format of regulator-made rules and guidance.

Key areas of discussion included:

• Challenges posed by emerging technologies like cryptocurrency that do not fit neatly within existing regulatory perimeters.
• Divergences in the structure and functions of regulators in different jurisdictions.
• Dynamics between regulators and the regulated population and the importance of robust consultation.
• The role of principles and prescription in regulatory frameworks, including the role of the Financial Conduct Authority’s 11 Principles for Business in the UK.
• Questions from webinar participants were also discussed, including:
• The challenges in reaching global agreement on regulation of cross-border products, and the potential role of IOSCO in facilitating cooperation between jurisdictions with respect to new products.
• How consumers standards and outcomes like ‘fairness’ can be measured, and the potential gap between the expectations of retail clients and the reality of what can be appropriately achieved through regulation.

A link to view the webinar is available here.

ALRC Scrutinises the Complexity of the Australian Financial Services Regulatory Ecosystem

On 17 May 2021, the ALRC hosted a webinar exploring the initial findings of the Financial Services Legislation Inquiry.

Amongst the speakers, Justice Middleton (part-time Commissioner of the ALRC), provided an overview, outlining the three topics which the ALRC has been directed to review:

• A first interim report focusing on the appropriate use of definitions in corporations and financial services legislation is due by 30 November 2021;
• A second interim report focusing on regulatory design and the hierarchy of primary law provisions, regulations, class orders, and standards, is due by 30 September 2022; and
• A third interim report focusing on potential reframing or restructuring of Chapter 7 of the Corporations Act is due by 25 August 2023.

Following the release of each interim report, the ALRC will seek formal submissions and feedback from stakeholders and the public, along with conducting consultations with key stakeholders and hosting webinars to engage a broad audience. A consolidated final report is due by 30 November 2023.

A link to view the webinar is available here. 

Administrative Appeals Tribunal News

On 13 May 2021, the Attorney-General announced the following thirteen reappointments to the Administrative Appeals Tribunal.

One part-time Deputy President: The Honourable Dennis Cowdroy AO QC

Seven full-time members:

• Mr Theodore Tavoularis
• Dr Louise Bygrave
• Mr Kent Chapman
• Mr Jeffrey Thomson
• Ms Justine Clarke
• Ms Jennifer Cripps Watts
• Mr Justin Meyer

Five part-time members:

• Professor David Ben-Tovim
• Ms Angela Cranston
• Mr Michael Manetta
• Ms Jane Marquard
• Mr James Silva

AAT Bulletin

The AAT Bulletin is a weekly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions. The current and past Bulletins can be accessed here. 

Federal Court of Australia Update

Special Measures Note in Response to COVID-19 (SMIN-5): FCA Appeals and Full Court hearings

On 29 April 2019, the Federal Court issued Special Measures Information Note (SMIN-5) to sets out the current arrangements for the conduct and management of appeals and Full Court hearings from 29 April 2021. 

Subject to the prevailing medical advice and travel conditions, Full Court hearings may now be conducted in person, online or by some hybrid combination having regard to the circumstances of the matter, court resources and any other relevant factor that may impact upon the appropriateness of conducting a hearing in person or electronically.  Regardless of the mode of hearing, the Court requires the co-operation of all parties and their legal representatives to conduct themselves in a manner that is consistent with the overarching purpose: s 37M of the Federal Court of Australia Act 1976 (Cth).

Arrangements may be made for litigants, their instructing lawyers and counsel (if any) to attend a hearing via separate connections or for some persons to attend in person whilst others participate online.  Any proposed arrangements or concerns regarding the conduct of a Full Court hearing should be directed to the National Listings Coordinator or the chambers of the judges of the Full Court at the earliest opportunity, in order that a safe and workable solution may be reached.

Federal Circuit Court Update

On 14 May 2021, the FCCA updated Practice Direction No. 3 of 2020 - Lighthouse Project and Evatt List which sets out the procedure for Lighthouse Project related family law proceedings in the FCCA. 

Due to the current COVID-19 situation in Sydney, this event will now be a fully virtual event. Those who have registered for an in-person ticket will automatically be converted to an online ticket. Tickets are still available, register before 13 July 2021.

The Federal Litigation and Dispute Resolution Section will be hosting another exciting ‘Hot Topics’ seminar. This event will be hosted online. The seminar will be chaired by the Hon Justice David Thomas, President of the Administrative Appeals Tribunal. Register here.

The International Law Section and Federal Litigation and Dispute Resolution Section of the Law Council of Australia, and the New South Wales Bar Association invite you to attend a new webinar series titled The Authors' Series. The next upcoming event, A Theory of Mediators’ Ethics: Foundations, Rationale and Application, will feature guest speaker, Dr Omer Shapira and Ms Mary Walker OAM, Chair of the International Law Section. Register here.

• February 2021, the submission to the Department of Home Affairs in response to Australia’s 2021-22 Migration Program was prepared by the Migration Law Committee of the Federal Litigation and Dispute Resolution Section.

• March 2021, the submission to the Joint Standing Committee on Migration in relation to its inquiry into Australia’s skilled migration program was prepared by Migration Law Committee of the Federal Litigation and Dispute Resolution Section.

• April 2021, the submission to the Department of Home Affairs in response to reforms to Partner Visa Program was prepared by the Migration Law Committee of the Federal Litigation and Dispute Resolution Section.

• May 2021, the submission to the Senate Legal and Constitutional Affairs Committee regarding its inquiry into the efficacy, fairness, timeliness and costs of the processing and granting of visa classes which provide for or allow for family and partner reunions (the Inquiry) was prepared by the Migration Law Committee (the Committee) of the Federal Litigation and Dispute Resolution Section.