Understand Your Rights. Solve Your Legal Problems
The CEO of Australia’s largest law firm has departed by “mutual agreement” following a firestorm over an internal email expressing disappointment over the firm’s decision to accept Australian Attorney-General Christian Porter as a client.
Annette Kimmitt resigned as head of MinterEllison on Wednesday, a week after sending an email to staff saying she felt “hurt” to learn that senior partner Peter Bartlett – who was not explicitly named in the message – was advising Porter over a rape allegation. The email was later leaked to news media.
“The acceptance of this matter did not go through the firm’s due consultation or approval processes,” Kimmitt wrote. “Had it done so we would have considered the matter through the lens of our purpose and our values.”
“The nature of this matter is clearly causing hurt to some of you, and it has certainly triggered hurt for me. I know that for many it may be a tough day, and I want to apologise for the pain you may be experiencing.”
Kimmitt’s email drew criticism as it emerged that Porter had a relationship with a firm predating the publication of the rape accusation by four months and that, as the most senior partner at the firm, Bartlett may not have been required to seek approval before giving advice to Porter.
In an email sent to staff at 10:00 PM this Wednesday, MinterEllison chairman David O’Brien said Kimmitt’s immediate departure had been “mutually agreed”.
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"We have thanked Annette for her years of service and dedication and wished her well for the future," O’Brien wrote.
Kimmitt was appointed CEO in July 2018, and by the time of her departure was halfway through a five-year contract.
Facebook has announced that it will restore news content to its users in Australia after a standoff with the country’s government last week.
"Facebook has re-friended Australia,” Australian Treasurer Josh Frydenberg told reports in Canberra on Tuesday, saying that Facebook CEO Mark Zuckerberg had told him that the ban would be lifted “in the coming days”.
Last Thursday, Facebook blocked Australian news sites from posting on the platform, and Australian users were prevented from viewing or sharing content from news outlets of any nationality. Also caught in the ban were various pages run by charitable organisations and government health agencies, disrupting coordination one week ahead of the country’s COVID-19 vaccine rollout.
Facebook claimed that it had been forced to block news in Australia in response to legislation currently being debated in the Senate after passing the lower house last week. The law is intended to create a “fairer” negotiation process between tech giants and news companies and is being observed internationally as a litmus test for further regulation of tech and social media.
Now, Facebook says it has negotiated a change to the proposed media code.
"Going forward, the government has clarified we will retain the ability to decide if news appears on Facebook so that we won't automatically be subject to forced negotiation," said Campbell Brown, Facebook’s Vice President of Global News Partnerships, in a statement online.
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The Australian government will offer four amendments to the media code, including a change to the proposed mandatory arbitration mechanism to be used when tech companies cannot reach a fair payment deal with publishers for displaying news content.
The media code has also been challenged by Google, which threatened to shut down its search engine in Australia if it was instated.
Google threatened on Friday to disable its search function in Australia if the government instates a new media code that would force it and Facebook to share royalties with news publishers.
Should Google make good on its promise, the move would forbid access to the Google search engine for the roughly 19 million Australians who make use of it every day.
“The code’s arbitration model with bias criteria presents unmanageable financial and operational risk for Google,” Mel Silva, Google’s managing director for Australia and New Zealand, told a Senate committee.
“If this version of the code were to become law, it would give us no real choice but to stop making Google Search available in Australia.”
Facebook has threatened similar action, stating that it will remove news from its feed for all Australian users should the code be passed. The social media company currently boasts around 17 million Australian users, none of whom would be able to post news articles on the Facebook platform if the company removed the function.
Prime Minister Scott Morrison fired back on Google’s warning, telling reporters on Friday that lawmakers would not yield to “threats”.
"Let me be clear: Australia makes our rules for things you can do in Australia. That's done in our parliament," he said.
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Though Australia is not the largest market for either Google or Facebook, its world-first media code is being seen by some as a global test case for government regulation of the world’s largest tech firms. The US government this week asked Australia not to go ahead with the proposed law, suggesting that it instead pursue a voluntary code.
"Death benefit" is a term that is associated with life insurance. In Australia, It is a part of every individual’s superannuation policy and comes into effect only when he or she dies before receiving the benefits of this policy. All superannuation funds in Australia are required by law to include this type of insurance. The death of a loved one in the family can be emotionally and also financially draining if he or she was the main breadwinner in the family. This article aims to make clear the concept of the death benefit and who can claim it.
If you are the spouse, a dependent child, or a parent of the deceased in your family, it will likely be a period of grief full of financial and emotional stress for you. If you were partially or fully dependent upon the deceased for financial support, you are eligible to make a death benefits claim. The fund has to pay death benefits along with the lump sum that was assured to the dependent of the deceased contributing to the super. If you are a family member who was dependent upon the deceased, you are eligible to claim the death benefits. No matter what superannuation policy the deceased was contributing to, you can rest assured that it must have death benefits for their dependents. You can take the help of death benefits lawyers to get this money from the operators of the fund. In most cases, these benefits run into thousands of dollars.
In many cases of the death of the main breadwinner of the family, the government of Australia comes forward to help the bereaved family without even requesting help. This help is provided through Services Australia, an executive agency responsible for looking after the health and welfare of the Australian people. Besides temporary exemptions in many schemes, Services Australia also gives away the death benefits to the bereaved family. The amount of money given is dependent upon the following factors:
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Death benefits under federal laws can only be given to a deceased person’s dependents. In case of no dependent, they are given to a legal personal representative (LPR). A non-dependent can receive death benefits only through an LPR. In such a scenario, it becomes important to know who is considered a dependent in case of deciding who is going to be the recipient of the death benefits:
If you are a dependent of the deceased in your family, you must take timely action to receive death benefits. If you are not approached by services Australia, you need to contact a qualified death benefits lawyer to get some monetary help through the super of the deceased. Claiming an experienced lawyer is the best way of receiving death benefits.
Australia’s antitrust regulator on Tuesday blocked an undertaking from Google parent Alphabet Inc that sought to appease its concerns over Google’s planned $2.1 billion acquisition of Fitbit.
The Australian Competition and Consumer Commission (ACCC) expressed scepticism towards the Fitbit deal in June, warning that Google’s purchase of the wearables and fitness company would give it access to a significant amount of customers’ data, potentially damaging competition in health and online advertising markets.
Under its proposed undertaking, Google offered to not make use of certain user data collected through Fitbit and Google wearables for advertising purposes for 10 years, with the possibility of extension if the ACCC saw fit. It also said it would provide third parties with access to certain user data collected through the devices for 10 years, as well as maintain support for interoperability with Android devices for the same period.
However, the ACCC rejected the undertaking, stating that it continued to have concerns about the potential for Fitbit’s non-Apple rivals to be “squeezed out” of the wearables market due to their devices’ existing reliance on Google services. The regulator also noted that several other competition authorities, such as the US Department of Justice, had not yet made a decision on the viability of the deal.
“While we are aware that the European Commission recently accepted a similar undertaking from Google, we are not satisfied that a long-term behavioural undertaking of this type in such a complex and dynamic industry could be effectively monitored and enforced in Australia,” said ACCC Chair Rod Sims in a statement.
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Google has faced legal challenges from the Australian government on a number of key issues, including a proposed law that would force Google and Facebook to pay for news on their platforms sourced from local media outlets. If the law is adopted, Australia will become the first country in the world to impose such a measure.
The ACCC said it would continue its investigation, setting 25 March 2021 as a new decision date.
Australia’s financial services watchdog on Tuesday filed a civil lawsuit against the country’s largest bank for charging more than 2,200 customers an interest rate that was higher than advertised over a seven-year period.
The Australian Securities and Investments Commission (ASIC) alleged that a systems error at the Commonwealth Bank of Australia caused the bank to charge 34% interest on business overdraft accounts between December 2011 and March 2018, more than double the advertised rate of between 14.55% and 16%.
The difference caused the bank to gain more than $2.9 million, ASIC said in its filing.
Customers continued to face higher rates than stated even after a complaint in 2013 prompted the bank to try (unsuccessfully) to fix the overcharging error, the regulator continued. The average customer lost around $1,500 due to the error, while one customer was overcharged by $17,522.
ASIC asked the Federal Court to find that CBA made false or misleading statements in breach of federal laws, and that the bank broke its obligations under the Corporations Act regarding financial services laws. For these, the regulator seeks a fine “as the court determines to be appropriate” and an order forcing CBA to publicly acknowledge any such fine and determination.
“CBA has cooperated fully with ASIC’s investigation and does not intend to defend the proceedings,” the bank said in a statement on Tuesday, adding that the problems behind the error had been dealt with and the 2,269 affected customers had been refunded a total of $3.74 million.
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The suit stems from a case study from a Royal Commission into the Australian banking industry two years ago. ASIC said in its statement that, between December 2014 and March 2018, CBA breached financial services laws 12,119 times.
Previously, Blackstonian notions of dominion and control had dominated legal thinking about how to make claims to property. The Crown in right of the State of Queensland had difficulty establishing to the satisfaction of their Honours a legal relationship or right to the property it claimed it had vested in a crocodile under the Fauna Act. That relationship to property in the crocodile was said to ground the Crown’s right to prosecute an indigenous man who took that crocodile in accordance with his traditional laws and customs. The Court held that the Crown could not establish that legal relationship sufficient to overturn the man’s honest claim of right to take the crocodile by exercising his native title right to hunt the crocodile.
Likewise, the history of land law in Australia is one of difficulty in establishing exactly how the Crown in right of the States establishes a legal relationship to land such that it exercises lawfully its right to grant, demise or dispose of land. The Mabo judgment has done much to put those claims onto a more secure foundation, but as one author has put it, the ‘radical title fiction’ has simply replaced the ‘feudal fiction.’1
And of course, Mabo could say nothing about the acquisition of sovereignty over Australia’s land mass and territorial seas. It was not a question justiciable in a court deriving its power from the Commonwealth Constitution, whose authority derives from that very sovereignty.2
So claims of a legal relationship to land by the States remain compromised. After the Uluru Statement of the Heart, the Commonwealth’s recognition of Aboriginal sovereignty is also now under the spotlight. This paper seeks briefly to survey some of the voluminous literature on these related topics. It asserts that treaty-making between the Commonwealth, the States and indigenous Australians has a legal justification. This paper seeks to articulate that justification for a general legal readership.
It is divided into two parts: the first part examines the difficulties of the natural law arguments in Mabo to deal with the sovereignty and land management issues that will not go away, and explores the origin and role of terra nullius in creating those difficulties. The second part sets out the legal argument for a compact/Makkerata or recognition of prior sovereignty in Indigenous Australians, based both on part 1 and the New Zealand precedent.
Several propositions derived from the literature can be baldly stated, and then examined more closely.
Andrew Fitzmaurice has very usefully explained the origins of terra nullius in the Roman law idea of the first taker. That which is captured by the first taker becomes his or her property. If applied to territory inhabited by indigenous peoples, the original law of nations provided that ‘’goods which belong to no owner [that is, no sovereign] pass to the occupier.’”3 On this view, a mainly Continental European one, dispossession of first nation peoples was wrong. The English, citing Locke, inverted it:
those who mixed their labour with the soil and with things available in nature were entitled to a first claim to property rights in those things, a sort of first taker as first fashioner.4
These two results from the different understandings of terra nullius fought for supremacy in the 19th century. Eventually the scramble for Africa in the late 19th century saw the English formulation temporarily win out.5 But by 1975, in international law, the anti-dispossession view of terra nullius was re-established: “‘Occupation’ being legally an original means of peaceably acquiring sovereignty over territory otherwise than by cession or succession, it was a cardinal condition of a valid ‘occupation’ that the territory should be terra nullius - a territory belonging to no-one - at the time of the act alleged to constitute ‘occupation.’” Those “territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius”.6 Thus we can state proposition 6.
As Connor has pointed out, it was the Advisory Opinion on Western Sahara in 1975 which led directly to the idea of terra nullius taking hold of the historical and legal imagination in Australia. Paul Coe’s statement of claim in Coe v the Commonwealth used the concept expressly, and it was taken up by historians such as Reynolds and others.7 Thus it is now necessary to put proposition 4:
There is no reference to terra nullius being the basis for settlement in 19th century historical sources relating to the settlement of Australia. The second part of this essay will address the basis as it appears in the archive.
At law, commencing with Attorney-General v Brown8 and then by assertion in subsequent cases (see proposition 7), occupancy of the Crown by settlement of British subjects in the new colony of New South Wales grounded absolute beneficial ownership. To use the Roman law concepts here, the occupancy of the Aboriginal people was not considered sufficient to make them first taker and thus property owner of the land in the new colony. The Crown’s title, through settlement (or to put it another way, through the occupancy of British settlers) gave them the status of first taker in the eyes of the Supreme Court of NSW: “…in a newly-discovered country, settled by British subjects, the occupancy of the Crown is no fiction… Here is a property, depending for its support on no feudal notions or principle.”
But this case must not be wrenched from its historical context. In Attorney-General v Brown, a landowner tried to take coal from his granted land where a reservation clause in the grant provided for Crown ownership of the coal. The case took the form of a Crown information against the defendant landholder Brown for intruding into the coal seams and trespassing on the Crown’s rights to the coal in the soil. Brown’s intrusion was a direct attack on the Crown’s albeit fictional feudal right as ultimate holder of the title to the waste lands. The attack went further: “The defendant’s counsel maintained that there was a material difference between dominion, or the right of sovereignty over the soil and country, which were unquestionably in the Crown, and the possession or the title to the possession in or of that soils, with power to grant the same at her discretion, which title be broadly denied.”9
In Cooper v Stuart,10 a landholder sought to prevent the Crown from resuming 10 acres reserved in the original grant in 1823 of the Waterloo estate for a public park. In passing their Lordships referred to NSW as “a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions.” In this sense the comment was more akin to obiter than a ratio. The case was about the reception of English law into the new colony and only en passant does it address the issue of indigenous rights to land. As we shall see, that was a right of occupancy readily acknowledged by successive Governors of NSW. Where the indigenous people were in “actual occupation”, however, was a question to which the facts on the ground did not readily admit an answer.
But, we shall see in part 2, these cases were all to attack or defend the Crown’s prerogative against settlers “pushing the envelope” to narrow that prerogative so as to enlarge individual rights in a colony far from the centre of British metropolitical power. They did not mention indigenous rights at all, except to appear to argue, interesting in hindsight, that such Aboriginal rights were allodial in nature.11 This legal statement can only be reconciled to the historical record using the propositions discussed in part 2.
Each of the cases (Attorney-General v Brown, Cooper v Stuart) in the 19th century were designed to guard the Crown against the unwarranted overreach of powerful and wealthy colonists intent on challenging the skeleton of principle underpinning English land law and the exercise of the Crown’s prerogative through Governors in granting land before any representative assembly was established. Attorney-General v Brown must, as we shall see, be viewed in light of the battle Governor Gipps ultimately lost in exercise of the Crown’s prerogative to protect the lands beyond the limits of location from the unlawful encroachment by squatters. The Crown in London gave up the fight to stop leases being given to those who had simply spread out beyond the limits of location, and passed the 1846 waste lands legislation providing for leases of Crown land. This was not because necessarily indigenous rights were ignored. They were simply not relevant to the parties to the proceedings in the two cases. But nevertheless Cooper v Stuart mandates the statement of proposition 6 because in 1971 Justice Blackburn still considered himself bound by it:
291) was heavily influenced by this reversal of argument previously used to protect indigenous rights in the face of colonial acquisition of territory. Importantly, Cooper v Stuart, through the doctrine of stare decisis, prevented Justice Blackburn in Milirrpum v Nabalco ((1971) 17 FLR 141 at 242) from recognising indigenous rights to land in the Northern Territory.
And proposition 7 can be stated because it demonstrates just how flimsy the legal basis established in Cooper v Stuart was to justify the denial of indigenous rights to land.
So terra nullius was never part of the law of the land, and Mabo no 2 did not overturn it. Brennan J’s decision recognised the indigenous right to occupancy of the land, sovereignty over which was acquired by the British Crown.14 The occupancy of the Aboriginal people, in the absence of any claim to sovereignty, gave them ownership as first taker. At least that is what the law now says.
The problem is how to explain how that ownership appeared to be ignored when the law was based on mere assertion and could hardly ground a reasonable justification for Crown absolute beneficial ownership of land, and when that common law was promulgated in the context of battles over the extent of the Crown prerogative in the new colony of NSW without reference to indigenous interests. Part 2 will address this question, and explain how the assertion of the law was contextualised as part of the colonial project to ignore indigenous claims to ownership as first taker. It will examine these further three propositions:
1 Ulla Secher “The doctrine of tenure in Australia post-Mabo: Replacing the ‘feudal fiction’ with the mere radical title fiction - Part 2 (2006) 13 Australian Property Law Journal 140
2 Coe v Commonwealth (1979) 53 ALJR 403; Mabo v State of Queensland (no 2) (1992) 175 CLR 1 at 31
3 A Fitzmaurice “The Genealogy of Terra Nullius” (2007) 129 Australian Historical Studies at 7 quoting Francesco de Vitoria
4 Ibid, 8
5 In re Southern Rhodesia, [1919] AC at 232
6 Advisory Opinion on Western Sahara, [1975] ICJR at 39
7 M Connor, The Invention of Terra Nullius: historical and legal fictions on the foundations of Australia Sydney: Maclaey Press 2005. This is a very interesting and well researched book marred by its sometimes hectoring tone and enthusiastic embracement of the revisionist side of the History Wars; Coe v Commonwealth (1979) 53 ALJR 403; (1993) 118 ALJR 110; H Reynolds The Law of the Land 2nd ed Melbourne: Penguin Books 1992. See also footnote 2 in Fitzmaurice, “The Genealogy…”
8 (1847) 1 Legge 312 at 316
9 At 316
10 (1889) 14 App Cas 286 at 291; (1886) NSWR 1; Evening News, Sydney, Monday 17 August 1885 at 5; Darling Downs Gazette Saturday 6 April 1889; The Daily Northern Argus Rockhampton Monday 28 January 1889
11 Attorney-General v Brown at 324
12 (1913) 16 CLR 404
13 (1959) 102 CLR 54
14 Exactly what the defendant’s counsel in Attorney-General v Brown had argued, see footnote 9
New South Wales Attorney-General Mark Speakman on Monday announced sweeping changes to Australia’s defamation laws, intended to “reset” laws that have resulted in “crippling damages payouts, chilling public interest journalism and clogging courts with minor claims”.
Federal Attorney-General Christian Porter discussed the planned reforms with the council of attorneys general via video conference on Monday. The council signed off on the proposed reforms, which had been the subject of an 18-month review spearheaded by New South Wales.
According to the council’s memorandum, the new laws will come into place “as soon as possible” and will include a new public interest defence based on UK legislation. By UK law, publishers accused of defamation are required to prove both that their statements were a matter of public interest and that they believed it was a matter of public interest to publish them.
Other significant additions to be made to Australia’s legislation include:
Speakman has historically argued for the need to update Australia’s defamation laws, which were “enacted before social media and online news coverage” and insufficient by modern standards.
“These reforms will bring defamation laws into the modern era, improving the balance between protecting reputations and free speech,” he said.
The case was filed in the federal court on Wednesday by Katta O’Donnell, a fifth-year law student at La Trobe University in Melbourne, who owns Australian government bonds.
The suit argues that Australia’s economy will be severely impacted by its government’s response to climate change, and that it has failed to disclose these risks to investors. The court filing claims that, as a promoter of its bonds, the Australian government “owes a duty of utmost candour and honesty” to its investors regarding the material risks posed by climate change.
“The Commonwealth breached its duty as a promoter by ... failing to disclose any information about Australia’s climate change risks,” the filing continues.
The action seeks a declaration from the government that it breached its duty of disclosure and an injunction to prevent the further promotion of the government’s bonds until it complies with this duty.
David Barnden of Equity Generation Lawyers, who is backing O’Donnell’s case, said that he believed it to be the first to deal with climate change as a material risk to the global sovereign bond market.
“Australia is on the frontline of sovereign climate risk,” he said. “We confront the harrowing physical impacts of drought and bushfires and we also face the financial risks of an economy over-exposed to fossil fuels being left behind as the world shifts to clean energy.”
The Australian government is aware of the legal challenge.
“Legal representatives are considering the matter. As it concerns current court proceedings the government will not make any comment,” a spokesperson for the Australian government told Reuters.
National law firm Slater and Gordon has announced its intention to institute remote working policies on a permanent basis, and will not be renewing the lease on its London office when it ends in September.
Slater and Gordon will carry out a review of all of its nationwide properties, also due to finish by September. The intention for the firm’s 200 London employees is to either move to a smaller office that is more suitable for hosting meetings or continue to work remotely for the indefinite future.
Speaking with The Law Society Gazette, chief executive David Whitmore said that the move towards a smart working model has been prompted by its observed success during the COVID-19 pandemic.
“We are not doing this to be different, we want as much as possible to be business as usual,” he said. “A lot of people have liked the way they have been able to operate and we have been listening to them.”
Slater and Gordon employs 2,000 staff worldwide. There is no definitive answer yet on how staff in other locations may be affected by wider adoption of remote working policies, but Whitmore stated that offices are likely to run at 35% capacity while social distancing measures remain in place.
To assist those working from home, staff will be supplied with multiple monitors and comfortable office equipment if required.
