The Top 10 Legal Stories for 2020
Throughout 2020 one thing dominated Australian news - whether you were in lockdown, quarantine, or social distancing. In the background to COVID, the legal year still had a mixed bag of news stories - both the relieving and the heart-breaking.
We present the Top 10 Australian Legal Stories of The Dumpster-Fire Year, 2020.
The Vindication of Geoffrey Rush
The saga of allegations against actor Geoffrey Rush proceeded in to its third year. In 2017 the Daily Telegraph published allegations that he had sexually harassed members of the cast of King Lear, performed by the Sydney Theatre Company. Rush sued for defamation and after 18 months, won in the New South Wales Supreme Court after the judge ruled that none of the claims had been proven; the judge described it as "recklessly irresponsible pieces of sensationalist journalism of the very worst kind".
The award to Rush was nearly A$3 million before legal costs. The case itself was hard-fought and resulted in at least 10 reported judgments for disputed hearings at various stages of the case; the costs award in his favour is likely to be huge.
Nationwide News (the Daily Telegraph's parent company) appealed the judgment - and failed in July 2020. The appeal court found that, while the trial judge shouldn't have taken in to account the friendly attitude in media appearances, all of the other testimony was credible - something which the newspaper had not disagreed with. The appeal court upheld the full ruling, and further costs in favour of Rush.
The Little Ink Cartridge That Could
A case that passed with little media interest came very close to killing a common industry - refilled ink cartridges.
Seiko is the manufacturer of Epson printers - and Epson print cartridges. Calidad is one of a number of companies that collect and refill old Epson cartridges and re-sell them on the market (at much cheaper prices).
Seiko sued for breach of its patents, claiming that Calidad have violated its intellectual property by making a "new product" - the refilled cartridges - that used the Epson patented design.
The High Court held off the challenge by Seiko, and that the changes were not a new product but "within the scope of the rights of an owner to prolong the life of a product and make it more useful."
Your refilled cartridges, and many small and large businesses built around this, survive another day. We can't do much about the annoying error messages though.
The Australian Judges working for Hong Kong
In recent years there have been ongoing pro-democracy protests in Hong Kong. A former British colony, Hong Kong still maintains a very Western legal system, unlike China as a whole (with party control at all levels of government and the courts.)
Protestors initially rallied against laws that would allow Hong Kong citizens to be extradited to China (and the likely unfair and highly different treatment they would receive in the Chinese legal system). In 2020, the Chinese Communist Party cracked down hard on Hong Kong, abolishing many of the province's rights and separations from the communist system. Reports of human rights abuses, disappearances and brutality by Hong Kong police and Chinese security officials have been numerous and substantiated.
Part of the Hong Kong legal system is the Court of Final Appeal, which includes both permanent and non-permanent judges. Appointment of Australian High Court Justices to this court as an emeritus position after they retire from the High Court has been a running theme in recent years. Three former Australian High Court judges - (Justice) William Gummow, (Chief Justice) Anthony Gleeson and (Chief Justice) Robert French - now sit on the Court of Final Appeal.
It is difficult to reconcile how the three Australian judges will continue to give the Court their approval in coming months, especially after Beijing has effectively ended Hong Kong's independence and rule of law. All three judges have been under increasing social media pressure to resign their roles; none have done so at the time of writing.
It must be said that one other Australian judge on the Court of Final Appeal - former NSW Chief Justice James Spigelman - did resign his role in September 2020. Spigelman, who has also previously served as ABC Chairman and Lieutenant-Governor of NSW, cited the "national security legislation" as his reason for quitting.
We had to include something about COVID-19. Sorry.
Whatever you may think, the Constitutional references to "free commerce and trade between states", or "freedom of political communication" don't mean you get to spread COVID everywhere.
Two sets of lawsuits appeared in 2020 as individuals tried to claim that the Constitution allows them to travel between states, ignoring state quarantine restrictions and COVID-related border lockdowns.
Mr Gerner is a restaurateur in Melbourne who claimed to have lost $2million in business due to the Melbourne lockdown; and Clive Palmer claimed he had lost business opportunities from not being able to visit work sites, or prospective sites, in Western Australia. Both sued the respective state governments in the High Court to try and overturn border and operating restrictions.
Australia's constitution requires that customs duties, trade, commerce and intercourse between the states be "absolutely free."
It has also been implied for the last 25 years that our constitution includes an "implied freedom of political communication" - while somewhat complicated, laws which prevent our democracy from operating because they create excessive restrictions (beyond good reason and limit) can be overturned.
Both Palmer and Gerner lost their cases in straight sets. The High Court pointed out that nothing in the quarantine restrictions prevents people talking or accessing government facilities, and that the Constitution prevents duties and charges between states - but says nothing about overriding a state's power to govern within its own borders. States get to rule themselves as the Constitution allows, including medical and health restrictions.
Clive Palmer's search for relevance continues.
The Acquittal of Cardinal George Pell
Yes - despite 2020 being the longest year in human history, the matter of Cardinal Pell before the High Court of Australia and his acquittal only happened in April.
Cardinal Pell had been convicted by a jury of a single count of sexual abuse related to the alleged molestation of a boy in the course of his duties at St Patrick's Cathedral, Melbourne in the mid 1990s. A televised judgement of the Victorian Court of Appeal in August 2019 supported the jury's decision.
However, the High Court in April (in a unanimous 7-0 decision) ruled that pieces of evidence that were not in dispute at trial - for instance, that Pell had been outside the church, and then always escorted by others at the times in question - meant that "there is a significant possibility that an innocent person has been convicted." The convictions were quashed.
One week later various media outlets reported that Pell was still under investigation by Victoria Police for connection to further offending in Ballarat. While the cases he was tried for are over, this may not be the end.
Casual Employees get real benefits - for about 5 minutes
Sometimes the courts can both scare and comfort the Coalition federal government.
Mondelez is a huge American based food and drink conglomerate. With revenue of US$26billion per year, they are in 116 countries including Australia, where their main brands are Cadbury chocolate, Toblerone and Oreo. They were taken to Fair Work Australia by the union representing employees at the Cadbury plant in Hobart over the issue of personal leave entitlements.
Legislation gives employees "10 days" leave, and does not talk about hours. The question posed in the case was: how many work hours are there in a day, for leave purposes?
Because the employees worked a 12-hour day (but only 3 days a week) the Federal Court in 2019 ruled that they should be paid 10 days x 12 hours. The Federal Court ruled that personal leave is to compensate an employee for the actual income lost due to medical, injury or unexpected emergencies, and that leave entitlements should compensate what a person would have worked on their work days.
Why was this a big deal? Because of casual workers. Casual workers may only work 2 or 3 days in a week but work long shifts when they do. Suddenly, employers were looking at huge personal leave entitlements for casual employees that had traditionally only been available to full-time or part-time workers.
The High Court reversed this ruling this year in September. By majority, they ruled that a "day" of work should be the average of what a person worked over a fortnight (i.e. 1/10th of the total worked in a fortnight). This has the benefit of not penalising someone who works a 36 hour week over 5 days (7.2hrs a day), who on the Federal Court calculation, would have less leave payments than someone who worked 36 hours over 3 days (12hrs each work day).
The government was attempting to rush through legislation to fix this problem after the 2019 decision but, since the High Court ruling in September, has put the matter on the back burner.
The Death of the Family Court of Australia
The Family Court of Australia was created by Gough Whitlam's government in 1975 with the hope of bringing simpler, no-fault divorce to Australia. To say that the system is now "simpler" is an impossible sentence to speak with a straight face.
As the nature of a "family" has changed over the years, conservative governments have tried to move, tweak and alter the system - and consistently, unfailing cut funding every year - to try and counteract one of the more liberal and progressive courts.
There have been many stages to this; the creation of a different family law court in the early 2000s (now called the Federal Circuit Court), tweaking legislation to be more "father friendly" in 2005, restricting funding, refusing to appoint any new judges to the Family Court, and more government and senate inquiries than any other institution.
The ultimate step has now arrive - the end of the Family Court. Following a rushed senate process the government defeated Labor, the Greens and Centre Alliance parties to pass the legislation on 2 December 2020. The first step in this is that the two family law courts - the Family Court and the Federal Circuit Court - will now be combined in to a single "Federal Circuit and Family Court" or FCFC.
Instead of specialist family law judges continuing to hear appeals, all will now be referred to generalist judges in the Federal Court of Australia (please note: the Federal Court is not the same thing as the Federal Circuit Court, just similarly named.)
This is, regrettably, consistent with the view of some politicians that family law is somehow inferior to "real law".
How this will work in practice, the number of judges/locations the new Court will have, and when this will all come in to effect are yet to be announced. However, the Family Court of Australia has now reached the end of its 45 year lifespan - and what comes next will be revealing for all Australians in 2021.
The Robodebt Fiasco
How much does it cost to check tax records against Centrelink records, and ask people to clarify their information? If this had happened, we could have all expected a reasonable bill.
Instead, after checking records, Centrelink wrote to people not for clarification, but demanding payment of debts that had not been proven or established, based on information that had not been checked by a human. The Robodebts often were based on "averaged" tax and income data - an assumption that what a person earnt last year would be the same this year. In an economy with so much part-time and casual work, that is a dangerous assumption to make.
Welcome to Robodebt, which has just cost more than $112 million in settlements, as agreed in November 2020 to bring an end to the class action against Centrelink.
The overall settlement is actually $1.2billion but most of this involves Centrelink refunding the "debts" it previously claimed of 373 000 people.
The remaining $112 million will be paid to 400 000 Australians who were members of the class action against Centrelink, to be paid as compensation or repayment to them for funds they did not need to pay.
The Investigation of Lawyer X
Nicola Gobbo is the gift that keeps on giving - to the criminal underworld of Melbourne. She has now been referred for criminal investigation and possible prosecution; the majority of the legal profession has responded "It's about time."
"...32 people were convicted for their part in the Barbaro drug syndicate. Remarkably, Ms Gobbo acted for at least 10 of these people, after having provided police with information that may have led to them being charged."
A recap: Nicola Gobbo was a Victorian criminal law barrister who was recruited as an informer by Victoria Police in 1993. She commenced practice as a lawyer in 1997 and continued to practice while giving private information about her clients to the cops, and remained an informer until at least 2010.
Gobbo has claimed she was doing this out of a sense of doing right and helping police to prosecute crime. Her detractors point out that it violated many basic rights in Australia - such as the right to talk to a lawyer, and the right for that information to be kept confidential - that are at the heart of our justice system.
The High Court condemned the behaviour of Victoria Police in 2018 as "atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law..." but at that time, we still were not clear on how far this matter spread.
We now know. The Victorian Royal Commission in to the Lawyer X saga handed down its 1000 page report after two years of investigation. Former President of the Queensland Supreme Court of Appeal, Margaret McMurdo AC, found that a total of 1,011 people were "impacted persons" - where their cases were affected by Gobbo. Of those, 887 had had Gobbo as a lawyer where she had not told them about her status as an informer.
Of the remaining 124, they were affected in specific ways - including where Gobbo gave confidential information to the police. Quoting sections of the Royal Commission Summary, Gobbo's "duplicitous and improper conduct spanned a period of more than 15 years" where she gave police information about where to find drug laboratories, encouraging clients to confess to police, revealed defence tactics to police, encouraged people to give evidence against her own clients, and helped Victoria Police to obtain warrants and gather evidence.
"As these brief case studies show, Ms Gobbo’s conduct as a human source for Victoria Police, while practising as a criminal defence lawyer, was extensive and sustained. It was also inexcusable. Her breach of her obligations as a lawyer has undermined the administration of justice, compromised criminal convictions, damaged the standing of Victoria Police and the legal profession, and shaken public trust and confidence in Victoria’s criminal justice system.
Already, two people, Mr Orman and Mr Cvetanovski, have successfully appealed their convictions based on Ms Gobbo’s conduct. There are many more appeals in progress."
The last point is true - and likely to be the topic of civil actions for compensation in 2021. This matter is, regrettably, far from over.
The Brereton Report
"He found that there to be credible information to substantiate 23 incidents of alleged unlawful killing of 39 people by 25 Australian special forces personnel, predominantly from the Special Air Service Regiment. Those alleged to be killed were... prisoners, farmers or other civilians." - General Angus Campbell, Chief of the ADF
When the outcome of the report by Justice Major General Brereton was released in November 2020 the public reaction was understandable and horrified. The announcements and public commentary - that Australian special forces had murdered civilians - could not be tempered by the idea that it was "in the heat of combat" or one of those things that just happen in war. The murders were of civilians, or of those who had already surrendered and were no longer an active threat.
What we do not know (yet) is the redacted portions of the Report. "Credible information" does not mean that there is evidence that will meet the criminal standard "beyond reasonable doubt". Criminal prosecutions have been referred for investigation by the Australian Federal Police and will, no doubt, be covered in depth in 2021 - as will the defamation action by Victoria Cross recipient Ben Roberts-Smith against three newspapers, already described as "the defamation trial of the century" over whether or not he committed misconduct whilst serving in Afghanistan.
The criminal investigation and prosecution process is likely to take years, and includes not just the murders, but the use of unauthorised hollow-point ammunitions, lying to investigators and senior officers, and allegations of cruel treatment beyond just the killings.
However, Chapter 2.50 of the Report lets us know that the worst is yet to come. After a large body of blacked-out text concerning a 2012 event, it says:
"what is described in this Chapter is possibly the most disgraceful episode in Australia’s military history, and the commanders at troop, squadron and task group level bear moral command responsibility for what happened under their command, regardless of personal fault."