News

Commencement of the Legal Profession (Solicitors’ Conduct) Rules 2020 and Rules of Practice Amendment Rules 2020

On 1 October 2020 the Legal Profession (Solicitors’ Conduct) Rules 2020 will commence. Significant amendments to the Rules of Practice 1994 will also begin.

Following below a memorandum from Law Society President Crystal Garwood, information sheets, copies of the rules and a commentary.

All practitioners should familiarise themselves with the new rules and changes to the Rules of Practice.

Rules of Practice 1994

Tags – Australian Solicitor Conduct Rules, ASCR

Media Statement – Law Council of Australia

Tuesday, 2 March 2021

Resumption of INSLM inquiry a positive move

All comments to be attributed to Law Council President, Dr Jacoba Brasch QC

“Today’s announcement, that an inquiry into certain facets of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act) will continue, is welcomed by the Law Council of Australia.

This inquiry, to be resumed by the Fourth Independent National Security Legislation Monitor (INSLM), Mr Grant Donaldson SC, will focus on aspects of the ‘Alan Johns’ matter, in which the NSI Act was invoked in the prosecution of a Commonwealth official for secrecy offences.

The Law Council believes that the principle of open justice is particularly important in criminal proceedings. It goes to the heart of a person’s right to a fair trial, in that justice according to law must not only be done but must be seen to be done.

The application of the NSI Act in the ‘Alan Johns’ matter led to a person being charged, arraigned, pleading guilty, being sentenced and completing their sentence with minimal-to-no public knowledge of the details of the offending, due to consent orders being made under the NSI Act.

The resumption of this inquiry will allow independent examination of whether the NSI Act should, as a matter of policy, applied in this way, especially in the prosecution of official secrecy offences by current or former Commonwealth officials and others such as their legal advisors.

Such review is particularly important, given that recent expansion of official secrecy offences in Commonwealth legislation could lead to further prosecutions.

The Law Council remains supportive of the reform options that were floated by the third INSLM, Dr James Renwick SC, when he originally initiated this inquiry in March 2020. This included considering a minimum requirement for at least some details of charges and orders to always be publicly disclosed.

The Law Council welcomes the opportunity to participate in the resumption of the INSLM’s important inquiry.”

ENDS

Read Media Statement here.

Tasmania Legal Aid – Changes to Guidelines

  • Witness Intermediary Scheme & Section 8A Cross Examination

    TLA has amended its funding guidelines to provide for circumstances where there is a prescribed witness under the new Intermediaries Scheme and where a court orders TLA to provide representation for an accused for the purposes of cross-examination of a special witness. Correspondence from TLA and details of the amendments can be found here.

Law Council of Australia Media Release: Government must act on Royal Commission recommendations

Monday, 1 March 2021

Government must act on Royal Commission recommendations

The findings and recommendations outlined in the final report of the Royal Commission into Aged Care Quality and Safety released today, indicate there is much to be done to address systemic issues within the aged care sector says the Law Council of Australia.

Law Council President, Dr Jacoba Brasch QC, in agreeing with the Royal Commission that ‘a philosophical shift is required that places the people receiving care at the centre of quality and safety regulation,’ says the rights of older people need to be embedded in the planning, provision and monitoring of aged care services.

“The Law Council is pleased to see that the Royal Commission has signaled the need for a fundamental shift in thinking, towards a human-rights oriented approach as the basis for protecting and promoting the rights of older persons in aged care,” Dr Brasch said.

“This recommendation reflects the Law Council’s key position, as outlined in our detailed submission, in which we called for a move away from ‘consumer-driven, market-based system.

“But as outlined by the Royal Commission, ‘rights are, of course, of little use if they are not enforceable’. That is why they must be legislatively enshrined in a new aged care Act.”

“It is also pleasing to see the Report calls for the introduction of a new serious incident reporting scheme, as proposed by the Law Council.”

“There is now a need to ensure that the legislative instruments implementing this scheme are appropriately clear and defined to ensure that they will work effectively when put into practice,” Dr Brasch said.

The Law Council will spend time considering the 148 recommendations in detail; however, at this stage it is pleased to see the following recommendations in the Report; calls for improving independent oversight, governance and accountability; providing stronger regulation of the use of restrictive practices; urgent and periodic review of the Aged Care Quality Standards; new requirements for minimum staffing levels and minimum qualifications for staff providing care; and better provision for the diverse needs of persons requiring aged care, including culturally safe care for Aboriginal and Torres Strait Islander persons and meeting specific needs of older persons with disability.

“The Law Council recognises that significant work is being undertaken by the Australian Government towards addressing these challenges, including the immediate injection of $452 million,” Dr Brasch said.

“But fundamentally there must be a change in the ethos of the legislative framework, and a new aged care Act, based on the simple concept of respect for the individual.”

Contact: Dr Fiona Wade: P. 0403 810 865, E. Fiona.Wade@lawcouncil.asn.au

See Media Release here.

Statement from the Family Court of Australia and Federal Circuit Court of Australia

The Parliament has now passed the Federal Circuit and Family Court of Australia Act 2020 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2020, which awaits Royal Assent.

The Courts have consistently declined to comment on Government policy. The role of the Courts is to apply the law of Australia by hearing and deciding cases and interpreting legislation created by the Parliament. They must also perform the business of the Courts in a manner that is efficient and fair.

The new Acts will create an amalgamated Federal Circuit and Family Court of Australia (FCFCA) with two Divisions: one which will include judges of the Family Court of Australia dealing with the most complex matters and exercising appellate jurisdiction, the other consisting of judges of the Federal Circuit Court of Australia, which will be the single point of entry for family law and child support cases.

In the exercise of its jurisdiction the FCFCA will continue to have a statutory obligation to have regard to the need to protect the rights of children and to promote their welfare, and protect them from family violence.

The first Core Principle of the Courts is:

The prioritisation of the safety of children, vulnerable parties and litigants, as well as the early and ongoing identification and appropriate handling of issues of risk, including allegations of family violence, are essential elements of all case management.

The Courts will continue to provide specialisation in family law. Both Courts already have specialist family law judges, with 33 family law judges in the Family Court of Australia and 40 specialist judges that deal exclusively with family law cases in the Federal Circuit Court of Australia (FCC). The public may not be aware that the FCC currently hears approximately 90% of all family law cases and 92% of all parenting cases. The FCC family law judges have an average of 25 years of family law experience between them, and many are former Registrars of the Family Court, experienced family law solicitors, barristers, senior counsel and senior academics. All of the specialist judges of both Courts will continue to sit in the new FCFCA, hearing family law cases only. 

The number of specialist judges under the new structure will increase, and by August it is intended that there be 35 specialist judges in what the new legislation designates as Division 1 and 43 in Division 2. The legislation also prescribes that the number of judges in the Family Court or Division 1 cannot be below 25. The Attorney-General has assured the Courts that any retiring judge will be replaced.

The Courts will continue to focus on implementing key case management improvements and family violence-related reforms such as rules harmonisation, the Lighthouse Project and the national COVID-19 List.

The Courts will also continue to seek further resources from Government to carry out these important reforms and other measures to reduce delays and chronic backlogs. 

To improve the system we need a streamlined single point of entry, as well as harmonised rules, forms and case management approaches. 

With change comes opportunity. I ask that we work together to create a world-leading family law system—one that we can all be proud of and one that the people of Australia and future generations of Australians deserve.

-ends-

The Hon. Justice William Alstergren

Chief Justice – Family Court of Australia                 
Chief Judge – Federal Circuit Court of Australia



Read Statement here.

University of Tasmania Law Review – Call for Submissions

Dear​​​ Law Society Members

Call for the submission of articles for Volume 40 

We are pleased to announce that the University of Tasmania Law Review is now calling for the submission of articles for Volume 40. Please find attached a flyer about this matter – we would greatly appreciate you bringing it to the attention of your staff. Articles will receive priority for publication in Volume 40(1) if received by 30 April 2021. No articles will be considered for Volume 40(1) after 28 May 2021.  

The University of Tasmania Law Review has a particular focus on law relating to Australia and the Asia-Pacific region, as well as international and comparative law. We would be delighted to receive articles from members of your faculty for possible inclusion in the next volume. All articles appearing in the University of Tasmania Law Review are refereed by suitably qualified academics using a double-blind process. 

If you have any questions about submitting to the Review then please contact the Editors, Chun Yu, Ella Hilder and Nick Bartlett at Law.Review@utas.edu.au.​

Further information about the University of Tasmania Law Review and prior issues can be found here.

UTAS Volume 40 Flyer

Law Society of Tasmania calls for much needed appointment of second Federal Circuit Court Judge in Tasmania

Until 27 November 2020 Tasmania had the benefit of two Federal Circuit Court Judges hearing Family Law Cases. One sitting in Hobart and the other based in Launceston and undertaking circuits to the North West of the State.

On 27 November 2020 Hobart’s resident Federal Circuit Court judge retired.

The Federal Government had been aware since mid-2020 the Hobart resident Federal Circuit Court would retire in November. Law Society of Tasmania President Trevor McKenna said “unfortunately, despite this, there has been no announcement of a much-needed replacement for the Hobart registry of the Federal Circuit Court”.

The lack of a replacement Judge means the State is left with one hard working specialist Judge doing the work of two Judges tackling difficult issues including family violence, child abuse and mental health.

“It is a concern not only to the legal profession but to the many Tasmanian families coming before the Court that there has been no announcement”.

Mr McKenna said “the failure to appoint a replacement Judge in Hobart will lead to delays not only in Hobart but across the entire state”. He observed matters were being adjourned because of insufficient judicial resources.

“There is a single Judge working tirelessly to assist families in resolving their complex disputes. That Judge so with impeccable decision making and in a timely and efficient manner, but it is unreasonable and unacceptable to expect a single Judge should have undertake the work of two Judges”.

The Law Society of Tasmania urges the Commonwealth Attorney General to announce a replacement Judge noting there are many talented family law lawyers and barristers worthy of being appointed to the Court.

ends….

For more information or requests for media interviews with Mr McKenna phone 0414 721 696.

11 February 2021

View Media Release here.

Tasmanian Bar – Financial Support Fund

The Tasmanian Bar is pleased to announce the inaugural recipient of the Financial Support Fund.

It is with pleasure that the Bar Council announces the outcome of its Expression of Interest process conducted late last year for its Financial Support Fund.

The inaugural recipient of a loan from the Financial Support Fund, is Alex Darcey.  Congratulations to Alex who has commenced practice as a Barrister at Derwent and Tamar Chambers.

The Bar Council acknowledges the grant from the Solicitors Guarantee Fund made by the Minister for Justice, Elise Archer MP, which made this important initiative for promoting diversity at the Bar possible.

A further call for Expressions of Interest in the Financial Support Fund will be conducted during the year and notice of the process is likely to be given in April/May of 2021.

Sandra Taglieri SC, President.

See announcement here.