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Opinion
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The legacy of the asylum seeker phone ban
19th Nov 2020The proposed Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, which would have banned refugees, asylum seekers and non-citizens who are held in immigration detention from having mobile phones, failed to pass the Senate by the narrowest of margins.
Dr Sangeetha Pillai analyses the scope and impact of the proposed law and argues that it will have broad and long-lasting ramifications on conversations around detention search powers, access to legal representation, and government accountability.
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Rethinking access to racial justice
12th Nov 2020Despite initial expectations, race discrimination laws have not made as strong a contribution as they might have to First Nations peoples, partly due to problems relating to access to justice and, in particular, the under-utilisation of anti-discrimination legal remedies.
Dr Fiona Allison and Jodie Luck discuss potential solutions which include reform of the mainstream legal system informed by First Nations peoples’ needs and perspectives, and support of community-led responses to racism, including those likely to increase awareness of legal rights.
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Australia’s Religious Discrimination Bill: Hard cases make bad law
5th Nov 2020The Religious Discrimination Bill has received a mixed reaction from the Australian public, and it is evident that not everyone will be satisfied with the final version of the legislation.
Emily Wittig from Stacks Collins Thompson and Geoff Baldwin from Stacks Champion discuss the Bill’s repercussions for workplaces, and the difficulty of defining ‘religion’ and identifying the line between vilification and merely offending someone.
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ADL definitions in TPD insurance: Is the default at fault? (part two)
28th Oct 2020In TPD policies, the ADL definition reports a much higher rate of decline compared to claims made under the any occupation definition.
In the second part of this two-part series, Matthew Lo argues that the fact that a definition has a higher rate of decline is not proof of its ‘unfairness’, and that the ADL definition cannot be ‘unfair’ as it enlivens rather than restricts a claimant’s ability to claim.
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ADL definitions in TPD insurance: Is the default at fault? (part one)
22nd Oct 2020The any occupation definition of total and permanent disablement (TPD) insurance is often referred to as the ‘standard form’ definition due to its ubiquity. However, a quick canvas of legislative instruments, such as the Life Insurance Act 1995 (Cth) or Insurance Contracts Act 1984 (Cth), reveals no required specifications for TPD insurance.
In the first part of this two-part series, Matthew Lo discusses the various definitions and inconsistencies associated with TPD insurance.
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The ‘constellation of circumstances’ that work against women applying for bail in Victoria
14th Oct 2020Advocates in the legal and community sectors have expressed concerns that Victoria’s tough bail system is having a particularly detrimental impact on women.
As part of a 12-month study investigating the drivers of women’s remand growth in Victoria, Dr Emma Russell from La Trobe University outlines the study’s key findings and recommendations. She discusses the ‘constellation of circumstances’ that contribute to women’s criminalisation, in particular, experiences of homelessness, poverty, family violence, and untreated mental and physical health problems.
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Employers held responsible for domestic violence when staff WFH
8th Oct 2020In Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54, it was found that employers can be held responsible for domestic violence when employees work from home.
Emily Wittig from Stacks Collins Thompson discusses how this case demonstrates that employers must ensure that there are no safety risks involved with WFH, including the threat of domestic violence. This requires the implementation of informed and proactive policies that will protect workers, particularly relevant in current times with more employees WFH due to COVID-19.
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Elder abuse, conflict and change
1st Oct 2020It’s no secret that Australia has an ageing population and that many intelligent minds around the country are attempting to find ways to effectively combat the growing prevalence of elder abuse. One particular area of focus has been the laws regarding alternative decision-makers, particularly powers of attorney.
On the International Day of Older Persons, Michele Davis highlights issues relating to conflicts when it comes to attorneys, and provides an overview of the new legislative changes soon to commence in Queensland.
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Does the pandemic have us working longer hours?
24th Sep 2020The new normal of remote working during the COVID-19 pandemic has brought with it the luxury of plasticity in how and when work is done. However, there are also downsides to working from home.
Travis Schultz explores the difficulties that have accompanied the loss of demarcation between our work and personal lives, with employees working longer hours than ever before.
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Should employers go to gaol for underpayment of wages?
17th Sep 2020Many instances of systemic underpayment of wages originate from the reckless indifference of employers towards correct pay practices.
While supporters of tougher laws believe that criminal penalties would act as a better deterrent to employers than the issuing of fines, Geoff Baldwin reminds us that there is insufficient evidence of the correlation between harsh penalties and reduced offending. He suggests that putting additional resources into compliance auditing may be more successful in reducing wage underpayment.
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Happiness is an inside job
10th Sep 2020Clarissa Rayward reflects on the significance of R U OK?Day and explores the foundational ingredients of any happy and successful legal career.
She interviews ALA member Dean Spanner in her podcast Happy Lawyer Happy Life on prioritising the things that matter: health and relationships. They discuss mindset, perspective and spirituality, and how with hard work and clarity around what brings joy you can live a successful life in and outside of the law.
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ASIC’s loss to Westpac is terrible for everyone
3rd Sep 2020Despite its Federal Court loss in Australian Securities and Investments Commission v Westpac Banking Corporation [2020] FCAFC 111, ASIC was right to appeal the dismissal of its responsible lending case, says Andy Schmulow. He discusses how this case has exposed the deficiencies of the purported remedy for reckless lending and advocates for urgent legislative reform.
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Developments in institutional liability for sexual assault: SMA v John XXIII College (No.2) [2020] ACTSC 211
27th Aug 2020Angela Sdrinis discusses the recent case of SMA v John XXIII College (No.2) [2020] ACTSC 211, which explored the liability of a university residential college for a sexual assault. The case shows that in some circumstances the common law is evolving to recognise that institutions should be held liable for the intentional torts of another person (even if they are not an employee) against vulnerable adults.
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COVID-19 shows the cracks in our aged care system
20th Aug 2020Catherine Henry questions why we are seeing so many COVID-19 deaths in aged care, and suggests that it's not just that older Australians are more vulnerable to the infectious disease. She believes that COVID-19 is, in many ways, just the next thing to expose the systemic problems in an aged care system that demands a major overhaul.
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Call for NSW workers’ compensation scheme to be scrapped
13th Aug 2020In light of concerns raised in the recent media investigation of the NSW workers' compensation scheme, Jeremy Roche compares NSW’s scheme with that of Queensland. He claims that NSW should copy the Queensland workers’ compensation scheme as it is more profitable, fair, efficient and sustainable and injured claimants, along with insurers and employers, are far better off.
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Sentencing, over-policing, STMP and crime reduction in NSW
6th Aug 2020Mark Warren analyses statistics to determine the effectiveness of NSW sentencing reforms on prison population, police and crime reduction, and STMP technology.
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Character test in s501 of the Migration Act 1958 (Cth) DOES apply to Temporary Protection Visas
30th Jul 2020George Newhouse provides an update on the overruling of BAL19, a decision that constrained the Minister for Home Affairs’ power to refuse a visa for refugees and asylum seekers under the s501 character test of the Migration Act 1958 (Cth).
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Do defamation laws need to be updated in the digital age? (part 2)
23rd Jul 2020In the second part of this two-part series, Richard Bradshaw and Caitlin Walkington cover the common distinct features of online publications and what changes should be made to defamation laws.
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Do defamation laws need to be updated in the digital age? (part 1)
16th Jul 2020Social media and the use of the internet have evolved in a manner that neither the legislators nor the courts could have foreseen, allowing defamatory material to be published and accessed in unprecedented ways.
In the first part of this two-part series, Richard Bradshaw and Caitlin Walkington cover who is a 'publisher' in the digital age and the differences between primary and secondary publishers.
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New workplace manslaughter laws in Victoria
2nd Jul 2020Sam Vasaiwalla explains the new Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Act 2019 (Vic), effective from 1 July 2020. This new law makes workplace manslaughter a criminal offence in Victoria, with penalties of up to $16.5 million and 20 years’ jail.
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