2013 legal tweaks

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We on the progressive side of politics do not accept the conservative view that catastrophe is the only legitimate impetus to social change. Rather, we hold that society is improved through a constant process of reform. The reform of the law is an important part of this wider process of societal improvement, and I welcome the contribution ofthe NSW Society of Labor Lawyers to promoting law reform through this year’s edition of Legal Tweaks.A particular strength of Legal Tweaks is that it is about starting a conversation about reform. Or perhaps more accurately, it is about starting dozens of conversations about a range of reform possibilities. And you certainly don’t have to agree with every suggestion in this publication to appreciate its value in encouraging discussion about change in the law.Another strength of Legal Tweaks is that it promotes the ideas of a wide range of practitioners and academics, many of who have long and deepexperience in the particular area of law to which they are suggesting reform. - Mark Dreyfus SC

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  • that would change NSW & the nation

  • EDITED BY

    AMY FOX AND KELLY XIAOPublished by the New South Wales Society of Labor Lawyers

    The New South Wales Society of Labor Lawyers aims, through scholarship and advocacy, to effect positive and equitable change in the substantive and procedural law, the administration of justice, the legal profession, the provision of legal services and legal aid, and legal education.

    Copyright 2013 @New South Wales Society of Labor Lawyers Inc. (INC9896948)

    Our thanks goes to all those who have contributed to this publication, and to the lawyers before them who built the modern labor party and imprinted social justice on our national identity.

    Special thanks to our sponsors: Maurice Blackburn Lawyers, who carry on the great legacy of Maurice McCrae Blackburn, a champion lawyer and a federal labor member.

  • CONTENTS

    Robin Schuck 3

    Kate Washington 4

    Pat Garcia 23

    Ben Slade 24

    Ben Fogarty 10

    Carl Godfrey 16

    Kate Eastman SC 17

    Hannah Quadrio 22

    Anthony Krensel 25

    Tim Stephens 12

    Emmanuel Kerkyasharian 13

    Miiko Kumar 14

    Greg Jones 15

    Kirk McKenzie 5

    George Williams 6

    Joanna Knight 11

    Lauren Fieldus 7

    Melissa Tan 8Elisabeth Peden 9

    Awais Ahmad 26

    Haren Pararajasingham 27Senthorun Raj 28

    Daniel Delimihalis 18

    Lewis Hamilton 19Bilal Rauf 20

    CIVIL LIABILITY LEGISLATION

    REGULATION OF THE LEGAL PROFESSION

    GUARDIANSHIP LAW

    FOOD REGULATIONS

    ANTI-DISCRIMINATION LAW

    PATENT LAW

    PRIVACY LAW

    LEGAL PROCEDURE

    ENVIRONMENTAL LAW

    EVIDENCE LAW

    FINES

    CONSTITUTIONAL LAW

    CRIMINAL LAW

    CONTRACT/COMMERCIAL LAW

    MIGRATION LAW

    INDUSTRIAL RELATIONS/EMPLOYMENT LAW

    Tanvi Mehta 21

  • 1FOREWORDfrom the Shadow Attorney-General, Mark Dreyfus QC MP

    We on the progressive side of politics do not accept the conservative view that catastrophe is the only legitimate impetus to social change. Rather, we hold that society is improved through a constant process of reform. The reform of the law is an important part of this wider process of societal improvement, and I welcome the contribution of the NSW Society of Labor Lawyers to promoting law reform through this years edition of Legal Tweaks.

    A particular strength of Legal Tweaks is that it is about starting a conversation about reform. Or perhaps more accurately, it is about starting dozens of conversations about a range of reform possibilities. And you certainly dont have to agree with every suggestion in this publication to appreciate its value in encouraging discussion about change in the law.

    Another strength of Legal Tweaks is that it promotes the ideas of a wide range of practitioners and academics, many of who have long and deep

    experience in the particular area of law to which they are suggesting reform.

    A particular strength of Legal Tweaks is that it is about starting a conversation about reform.

    We can expect little interest in serious reform from the conservatives now governing in both Canberra and NSW. So I would take this opportunity to encourage all progressive lawyers to keep the conversation about reform alive and flowing. I have no doubt that the ideas in this edition of Legal Tweaks will form a part of this essential conversation.

  • 2EDITORS NOTEfrom the 2013 Legal Tweaks EditorsKelly Xiao & Amy Fox

    The Legal Tweaks publication is designed to facilitate dialogue between lawyers who share progressive values and elected Labor members of parliament.

    ...we recognise that elected members are in the best position to propose and achieve legislative change.

    As a Society committed to progressive law reform, Labor Lawyers recognises that elected members are in the best position to propose and achieve legislative change. We want to enhance elected members practical day to day understanding of how specific legislative clauses and regulations are affecting people in the community.

    Legal Tweaks was launched with this

    goal in mind. In 2012, Labor Lawyers released the first edition of Legal Tweaks where people from across the legal profession were asked the simple question:

    If you could change one particular section or regulation, what would it be, and why?

    In 2013, in the lead-up to the election and in the first days of the new government, we again posed the question. Our second edition of Legal Tweaks showcases a wide range of thought-provoking contributions from members of the legal profession, covering a variety of areas of law. These legal practitioners are not all members of the Labor Party, or of the NSW Society of Labor Lawyers. However, they all share the Societys desire to see sound, progressive law reform. We hope this publication will enable us to share their insights on how the law can be changed - tweaked - simply and effectively, for the benefit of the wider community.

  • 3Proportionate Liability was introduced to civil liability legislation in each Australian jurisdiction in the wake of the insurance crisis that led to the collapse of HIH in the early 2000s. Under Proportionate Liability, each party to a contract is liable for only that share of the loss they were responsible for, instead of each party being jointly and severally liable.

    However, when this legislation was enacted, New South Wales, Western Australia and Tasmania passed legislation explicitly allowing the parties to contract out of Proportionate Liability; Queenslands legislation expressly prohibits contracting out of Proportionate Liability; and the Commonwealth, Victoria, South Australia, Australian Capital Territory and Northern Territory legislation is all silent on the issue.

    A uniform, national position against contracting out of Proportionate Liability should be adopted for the following reasons:

    1. Contracting out of Proportionate Liability defeats the policy intent for which this reform was introduced in 2002;

    2. In some sectors of the economy, Professional

    Indemnity insurance is not readily available for professionals contracting out of Proportionate Liability;

    3. Contracting out assumes that such a position was freely reached between the parties, when in actuality many contracts are not negotiated, but offered on a take it or leave it basis, with unequal bargaining power between the parties;

    4. Proportionate Liability moves the parties away from a deep pockets approach to liability, and towards each party being responsible for the things they can control. In turn this leads to better outcomes arising out of the contract.

    This change has been proposed previously at Standing Committee of Attorneys General and Standing Council of Law and Justice meetings, but discussion has been deferred. Until the reform occurs, the pitfalls Proportionate Liability was designed to overcome risk being repeated.

    Robin Schuck is a Senior Legal Policy Advisor at Consult Australia.

    Remove the ability to contract out of Proportionate Liability under the Civil Liability Act 2002 (NSW).

    Why does this section/regulation need to be changed?

    If you could changeoneparticular section or regulation, what would it be?

    ROBIN SCHUCK Senior Legal Policy Advisor

  • 4Why does this section/regulation need to be changed?

    If you could changeoneparticular section or regulation, what would it be?

    This section unreasonably precludes grandchildren from recovering damages for pure mental harm arising from shock. Only a witness of the victim being killed, injured or put in peril; or a close family member of the victim, may recover damages.

    The problem lies with the definition of close family member which is limited to a victims parent; spouse or partner; child or stepchild; or sibling. Grandchildren are not considered close enough.

    Examples of the impact:

    An Aboriginal womans grandfather died due to neglect in an aged care facility. As a result of his death, she suffered significant psychological injury and yet, she cannot recover damages.

    A granddaughter visits her grandfather in hospital and finds him dead on the floor, next to his bed. Due to the hospitals negligence, she suffers a breakdown but cannot recover damages.

    The definition of close family member is out of step with our community.

    The definition of close family member is out of step with our community. It imposes a traditional Anglo-Saxon model of family and in so doing, discriminates against people of indigenous and multicultural heritage. This paternalistic law should be repealed.

    Kate Washington is a Partner at Catherine Henry Partners.

    From the perspective of a plaintiff personal injury lawyer, I would like to see s 30(2) of the Civil Liability Act 2002 (NSW) repealed.

    KATE WASHINGTON Solicitor and Partner

  • 5Section 44(iv) of the Constitution prevents any person who holds any office of profit under the Crown from standing for Federal Parliament as a Candidate. This prevents federal or state public servants from nominating as a Candidate for Federal Parliament unless such persons resign their employment prior to formally nominating as a Candidate (See Sykes v Cleary (1992) 176 CLR 77).

    This provision prevents many highly experienced public administrators from standing for Parliament without having to give up their employment even though they may later be unsuccessful candidates.

    Section 44 should be amended so as to only affect persons who are actually elected. The amendment could deem successful candidates to have resigned their employment and disclaimed all benefits arising from such employment at and after the declaration of the poll, apart from an