Ceremonial Sitting of the Court in Canberra to mark the swearing-in of The Hon. Jayne Margaret Jagot

On Monday, 17 October 2022 the Hon Jayne Margaret Jagot was sworn as a Justice of the High Court of Australia, becoming the 56^th Justice appointed to the Court and the seventh female, since 1903. Her Honour’s elevation continues a remarkable career as a distinguished and respected jurist. Her Honour’s appointment also signifies that for the first time since Federation, the majority of Justices on the High Court will be women.

The Hon. Mark Dreyfus KC MP, Mr Tass Liveris, President of the Law Council, Dr Matt Collins AM KC, President of the Australian Bar Association and Ms Gabrielle Bashir SC, President of the New South Wales Bar Association, addressed the Court at the ceremonial sitting to welcome her Honour’s appointment.

Mr Liveris noted in his speech that:

On October 6th, 1903, the first three justices of this Court took their oaths under a relatively new sovereign, King Edward VII, witnessed by what was described as a sea of distinguished personages, in a brimming Melbourne courtroom. 119 years on, on another October day – this time in the Bush Capital – you are the first Justice of this Court to take the Oath of Allegiance under that monarch’s great-great-grandchild. In doing so, you have pledged yourself to the same enduring commitments.

Mr Liveris also acknowledged her Honour’s brilliance of mind, retentive memory and remarkable ability to cut swiftly to the heart of issues and concluded by observing:

Your Honour will indeed bring life and spirit to the law, bringing to bear the entire scope of your substantial legal talents, and shaping it with reason, wisdom and compassion.

Just as the names of Griffith, Barton and O’Connor resound throughout the pages of our nation’s history, your Honour now joins in the great task, as they did, of composing the future.

Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022

On 14 October 2022, the Law Council made a submission to the Senate Legal and Constitutional Affairs Legislation Committee in response to its inquiry into the Anti‑Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Cth). The Law Council also attended the hearing for this inquiry (transcript).

The Law Council strongly supports the bill, which would implement the second tranche of amendments – to the Sex Discrimination Act 1984 (Cth) (SDA) and the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) – arising from recommendations of the Sex Discrimination Commissioner's Respect@Work report.

(The Law Council previously supported the implementation of a first tranche of amendments effected by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth).)

In its submission, the Law Council particularly welcomed the amendments proposed in the current bill to:

• introduce a positive duty on employers to prevent sex discrimination and harassment, supported by appropriate compliance powers being given to the Australian Human Rights Commission; and
• provide the Commission with a broad inquiry function to inquire into systemic unlawful discrimination, including systemic sexual harassment.

The Law Council also made recommendations to improve the operation of some of the proposed amendments.

In relation to the proposed new prohibition on the creation of a hostile work environment to be inserted into the SDA by Schedule 1 to the bill, the Law Council submitted that while it supported addressing uncertainty in the case law on this issue, the proposed provision is not clear and is therefore uncertain in its operation. The Law Council recommended amendments to bring the provision closer to its intended ambit.

The Law Council also raised a number of potential issues arising from a scheme inserted by Schedule 4 to the bill into the AHRC Act to allow unions and other representative bodies to bring representative actions in the Federal Court, following the termination of a complaint to the Commission President. In the hearing, the Law Council expanded on its suggestion that consideration be given to permitting representative actions to commence without first being required to seek conciliation, noting that the particular conciliation process under the AHRC Act may inadvertently limit the scope of subsequent court proceedings.

The Law Council also addressed Schedule 5 to the bill, which would introduce a bespoke scheme dealing with costs orders in applications to the Federal Court made under the AHRC Act. The bill would provide for ‘cost neutrality’ approach whereby the default position is that parties bear their own costs, but the court may make a costs order where it considers this would be ‘just’, having regard to statutory criteria.

While the Law Council received a range of views on this provision, it suggested that consideration be given to including a carve out to provide plaintiffs with greater certainty regarding recovering costs in representative actions. The Law Council noted that class actions are expensive to run, and complainants may find it difficult to secure legal representation for class actions if there is no certainty of recovering party/party costs. 

Read more here.

Australia must protect its troops from death penalty

Military personnel who serve Australia as members of its Defence Forces should not face the risk of being sentenced to death when training or conducting operations overseas.

Appearing before the Joint Standing Committee on Treaties today, the Law Council called for urgent amendment of the Australia-Japan Reciprocal Access Agreement to guarantee that Australian military personnel would not be subject to the death penalty if convicted of crimes while in Japan pursuant to the Agreement.

Read more here.

Temporary Exclusion Orders must be necessary and proportionate

Preventing an Australian citizen from returning home from abroad is a serious action that requires fair and transparent oversight and ongoing evidence of its effectiveness, the Law Council said today.

A Temporary Exclusion Order (TEO) prevents the return to Australia of any person deemed a security risk without a return permit imposing pre-entry and post-entry conditions.

Speaking at a public hearing of the Parliamentary Joint Committee on Intelligence and Security, the Law Council raised concerns about the lack of evidence on the public record regarding the operation of the Temporary Exclusion Orders regime to demonstrate its necessity and effectiveness.

Read more here.

Ending violence against women and children

Following the release earlier this week of the National Plan to End Violence Against Women and Children 2022-2032, the Law Council of Australi welcomed the collaboration and commitment of all governments to take action to end the epidemic of violence against women and children.

The Law Council commends the Plan’s focus on prevention and early intervention and delivery of targeted and tailored services to support diverse groups, including the identified need to improve capacity building within legal assistance services supporting women and children experiencing family violence.  The Plan’s commitment to the development of measurable targets to track progress through a supporting Outcomes Framework is also welcomed.

The Plan recognises that we need to substantially improve criminal justice responses to domestic, family and sexual violence crimes. The Law Council noted that access to appropriate survivor-centred responses that encourages reporting must be a priority and the vision of the Plan must be backed up by funding for the legal assistance sector.

Read more here.