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If proven, violence perpetrated against a spouse during the course of a marriage will usually constitute an important element in the resolution of the matrimonial litigation in relation to parenting orders and sometimes in relation to property orders. Normally violence by one spouse against the other spouse will directly or indirectly involve the children. If children are involved the impact of inter-spousal violence is significantly elevated. For the purposes of this paper I do not propose to canvas the significant issues surrounding allegations of sexual assault on children by a parent. That subject is a matter worthy of separate consideration. In this paper I have in mind, primarily, physical and significant psychological abuse by a spouse on the other spouse including violence directly or indirectly impacting on the children.

I intend to examine some aspects of the management of litigation involving such violence from the perspective of a spouse who is accused of such conduct.

I use the term marriage to include de facto relationships covered by the FLA.

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In a sense, every act of regulation is a response to some perceived conflict.  The content of the regulation reflects a kind of world view of that conflict and promotes a discernible set of interests by proscribing (or prescribing) a set of behaviours. Consider, for example, the objects provision, s.5, of Queensland’s Private Employment Agents’ Act 2005:

 “The purpose of this part is to provide for a code of conduct as the main way of regulating the conduct of private employment agents in their relationships with persons looking for work or for workers.”

The Code, which is contained in regulations, goes on to proscribe certain conduct, such as charging work seekers a fee for finding jobs; and to prescribe certain conduct, such as requiring employment agents to ensure that a work seeker’s right to maximize the work seeker’s potential for career development is preserved.

In many cases the content of a code will reflect the identity of the party who initiates it and upon the identity of any party who controls or contributes to the regulatory agenda.  A code initiated by an industry association might address a very different set of concerns from a code initiated by the ACTU or by the ACCC.  This was illustrated when the Recruitment & Consulting Services Industry Code (the” RCSA Code”) was first put forward for authorization in 2002.

The RCSA Code was an industry association initiated code that sought to address industry issues and provide a framework for regulating conduct by and between association members. The AMWU, as an interested party, sought to modify the content of the code by having included, amongst other things, a specific provision requiring members to provide on-hire workers with no less than the pay and conditions received by workers performing work of equal value directly employed by the host employer. It was an attempt to impose an industrial agenda upon an industry arrangement.  Whatever the merits of the Union’s submission may have been, it was the Association’s code that was put up for authorization; not the Union’s and the public benefit test could only be applied on the basis of what had been put forward.

The ACCC suggested that it might have been a different matter if it had been asked to endorse rather than merely authorize the RCSA Code.  Endorsement was a procedure available at that time by which the ACCC could indicate that a particular code represented “best practice” within an industry.  The closest current procedure would be prescription of a voluntary industry code under s. 51AE of the Competition & Consumer Act 2010.

The RCSA Code was duly authorized in 2003. It was renewed in 2009 and falls due for renewal once more in early 2014.  In the meantime, the debate about industry regulation has continued unabated.  The renewal process is thus likely to stimulate further discussion about why and how the industry could or should be regulated.

In order to engage in that discussion, employment services agencies in Australia and interested stakeholders should be aware of at least eight types of regulation that may be relevant.  Three of those types fall into the category of self regulation. The remaining five types represent forms of statutory regulation.

Type 1 Regulation – Voluntary self-regulation – Industry association members only

Many employment services agencies (and individual employment services professionals) belong to industry associations of one type or another that have codes to govern the professional and ethical conduct of their members.  Some of these are authorized by the ACCC and some are not.  Where the industry association code might contain a cartel provision, an exclusionary provision; or where it might substantially lessen competition or impact on competition in other ways it is advisable to have the Code authorized by the competition regulator or to notify terms that might impact on competition where that may be done.

Although this form of regulation is described as “voluntary”, the only voluntary part about it is that an employment service agency or professional can choose whether to belong to the association or not. Once membership is obtained (and sometimes from the time of application for membership) an express or implied contract will bind the person to the code and it may be enforced against that person.

An additional means of indirect enforcement exists to the extent that a court applying the unconscionable conduct provisions of the Australian Consumer Law may take into account the provisions of various industry codes. Occasionally, industry clients and governments will leverage the provisions of an association code by incorporating their provisions (but not their membership requirements) in their purchasing and tendering arrangements.  They then become enforceable as a matter of contract between client and supplier.

There is experience of such codes operating in the employment services industry over many years, both in Australia and overseas. They have generally operated in the competition and consumer field; though there is an example of a recruitment industry privacy code having been proposed under the code provisions of the Privacy Act 1988; but later withdrawn before determination. There may be some renaissance of these under the industry code provisions of the Privacy Act once the amendments proposed by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 take effect in March 2014.

Type 2 Regulation –Voluntary (prescribed) industry codes

There are none of these in Australia at present.  However, in the future they may provide an effective means of industry regulation – especially if those states and territories that have retained employment agent legislation (ACT, NSW,  Qld, SA and WA) repealed their legislation or provided an opt out mechanism in favour of a voluntary (prescribed ) industry code operating federally.

This type of regulation differs from Type 1 (Voluntary self regulation limited to industry association members) in that it reaches beyond the membership of any single industry association and applies, potentially, to all industry participants according to code binding mechanisms set out in the code or regulations. However, they might not be easily obtained.

The ACCC has not yet prescribed a voluntary code; and has suggested that it would only do so in the following circumstances:

• the code would remedy an identified market failure or promote a social policy objective;
• the code would be the most effective means for remedying that market failure or promoting that policy objective;
• the benefits of the code to the community as a whole would outweigh any costs;
• there are significant and irremediable deficiencies in any existing self-regulatory regime—for example, the code scheme has inadequate industry coverage or the code itself fails to address industry problems;
• a systemic enforcement issue exists because there is a history of breaches of any voluntary industry codes;
• a range of self-regulatory options and ‘light-handed’ quasi regulatory options have been examined and demonstrated to be ineffective;
• there is a need for national application as state and territory fair trading authorities in Australia also have the options of making codes mandatory in their own jurisdiction.

Furthermore, the government will only consider prescribing a code of conduct under the Competition & Consumer Act if it is not already underpinned in other federal legislation.

At present, there is no federal legislation underpinning employment services industry legislation and there is perhaps a reasonable argument that a number of the conditions outlined above would prove to be satisfied if the coverage and effectiveness of existing industry association codes were to be examined on an industry wide basis.

As with Type 1 regulatory codes, it would be expected that such codes would operate in the competition and consumer field. Investigation and enforcement procedures for applicable industry codes are contained in IVB of the Competition and Consumer Act. However expansion into the privacy field ought now be contemplated as a possibility as the OAIC will be able to request a code developer to develop a code for a specific industry. Corresponding investigation and enforcement provisions exist under the Privacy Act.

Type 3 Regulation – Mandatory Industry Codes

It is unlikely, at the present time, that a mandatory industry code would be established for the employment services.  That is because there is state and territory legislation operating in Qld, NSW, ACT, SA and WA which wholly or partially regulates the industry in those jurisdictions. Nevertheless, some measure of indirect regulation applies to employment services firms structured as franchises, which are thus subject to the Franchise Industry Code.

At state and territory, something approaching a mandatory industry code could be established in those jurisdictions, such as S.A., which have established small business commissions with powers to mandate industry codes.  The principal difficulty which they would face, however, would be their jurisdictional limits would restrict coverage intend to produce local inconsistencies in what seems to be recognized as a national market.

In the privacy field, the changes taking effect in March 2014 would allow a privacy code of conduct to be mandated for an industry.

Type 4 Regulation – Legislative Regulation Specific to Employment Agents

At one time it was common for governments to require employment agents to be licensed as part of a scheme of industry wide regulation.

Example: New Zealand at one time had a Servants Registry Office Act 1908 (later named the Employment Agents Act 1908 (NZ) and since repealed).

In recent years, many governments either repealed or relaxed their rules. However, licensing rules do remain in some jurisdictions (e.g. SA, WA, ACT); whilst, in others, remnants of earlier regulatory schemes have been preserved in the form of statutory or regulatory codes of conduct (e.g. Qld and ACT) or have passed into Fair Trading Legislation (e.g. NSW), where they have remained despite the harmonization brought about by the passing of Australian Consumer Law and the repeal of much state fair trading legislation.

Type 5 Regulation – Regulation under licensing schemes for other professions undertaking activities similar to those undertaken by employment agents

In some jurisdictions, it has been suggested that, although specific employment agent licensing has been repealed, employment agents continue to be regulated under other licensing regimes.

Example:  In  NSW  it  was  suggested, at one time, that  employment  agents  were  required  to  hold  licences  under  the Commercial Agents and Private Inquiry Agents Act 2004 (NSW). The suggestion received strong government support until industry objections led to employment services agencies being expressly excluded by amendments to the Commercial Agents and Private Inquiry Agents Regulation 2006 (NSW).

The suggestion that employment agents continue to be regulated under licensing regimes that were developed for other classes of agents is based upon definitions in those licensing regimes that look as though they might apply to employment agents.

Example: N.T. has a Commercial and Private Agents Licensing Act 2000. A “private agent” is defined to include an inquiry agent. “Inquiry agent” includes:

…a person who, for monetary or other consideration, performs the function of obtaining or providing information as to the personal character or actions of any person, or as to the business or occupation of any person on behalf of any other person.

That, of course, is precisely what employment agents do when they conduct candidate screening, reference checks, or validate candidate provided information on behalf of their clients. Unlike the position in NSW, there is no regulatory exemption for employment agents in the N.T.  In those jurisdictions where this type of regulation might apply, it is best to contact the Local State or Territory regulatory authority and ask whether specific business activities bring an employment services agency within the scope of their licensing scheme.  In most cases they should say that it does not.

Type 6 Regulation – Multi-disciplinary regulation

Some employment agencies may also carry on other businesses – either directly or through related entities – that are subject to regulation.

Example: An agency or group might provide immigration advice. Migration agents are subject to separate regulation. Here it is the business of migration agent that is subject to the regulation rather than the business of employment agent.

Type 7 Regulation – Vicarious regulation

Although on-hire (labour-hire) is often excluded from the reach of the rules regarding employment agency regulation, there are some exceptions; and, occasionally, it has been suggested that temping agencies are regulated and licensed under schemes that regulate the industry sectors into which they on-hire staff.

Example: In Qld it was suggested by government, at one time, that employment agencies on-hiring workers into the building sector were required to hold building licences.

Type 8 Regulation – Wide cover regulation

Some laws such as privacy laws, discrimination laws and consumer protection laws have a wide coverage that includes employment agencies as well as other businesses.  There may even be some employment agency specific provisions.

Example: Some anti-discrimination and Equal Opportunity Acts have provisions that expressly apply to the work the employment agencies do.  Other Acts such as the Privacy Act might have a profound impact on the work that employment agencies do and, in a manner of speaking, could be said to regulate employment agencies to that extent.

Employment services agencies and recruitment professionals operate within a broad regulatory environment, where corporations legislation, work health & safety legislation, revenue legislation, competition and consumer legislation, anti-spam legislation, industrial relations legislation, and “clean slate” or offenders rehabilitation laws all affect what employment services agencies and professionals do and how they go about it.

Despite the fact that there is a wide array of regulatory options, many of them already deployed, what is missing, and what seems to be contributing to the ongoing calls for industry regulation, is a coherent scheme of regulation with federal coverage that approaches anything like the regulation of the longer established professions. Whether it is really needed for the employment services industry at this time is a difficult question.  Whether it is desirable might depend upon the degree of flexibility which it leaves to enable business practices to develop, standards to be set and business models to adjust to a rapidly evolving and changing market.

The Australian Competition & Consumer Commission (“ACCC”) recently reviewed standard form consumer contracts in the airline, telecommunications, fitness and vehicle rental industries, as well as some contracts used by online traders and travel agents.

The ACCC identified the following types of terms as being likely to fall foul of the ACL’s  fairness requirement.

• Contract terms that allow the business to change the contract without consent from the consumer.
• Terms that cause confusion about the agency arrangements that apply and that seek to unfairly absolve the agent from liability.
• Terms that unfairly restrict the consumer’s right to terminate the contract.
• Terms that suspend or terminate the services being provided to the consumer under the contract.
• Terms that make the consumer liable for things that would ordinarily be outside of their control.
• Terms that prevent the consumer from relying on representations made by the business or its agents.
• Terms seeking to limit consumer guarantee rights.
• Terms that remove a consumer’s credit card chargeback rights when buying the service through an agent.

At the moment, the unfair terms provisions of the ACL only relate to standard form consumer contracts for the supply to an individual of goods or services wholly or predominately for personal, domestic or household use or consumption.

The federal Coalition has stated that if it is successful at the next election, it will move to extend the unfair terms protections to small business consumers.

1. Australian Consumer Law is changed in 2010 to include unfair consumer contract provisions.
2. Coalition promises to extend unfair contract provisions to small business consumers.
3. ACCC reviews standard form contracts used in target industries and identifies 8 categories of unfair terms for removal.
4. Recruitment industry participants call for industry regulation.

These are not likely to remain as disconnected developments indefinitely. So it might be worthwhile, before too long,  to have a good look at the ACCC’s review and to check to see if there are any unfair terms in standard form recruitment contract.  If so, decisions will have to be made about what to do with them them? And by whom?

In the face of the most recent call, this time from industry insiders, to regulate the Australian recruitment industry I am left asking two questions: Why? How?

It’s not that the industry might not be in need of regulation.  The furore about the alleged (mis)use of 457 visas; questions about candidate “ownership”; the charging of “candidate fees” to job seekers; the impediment to workforce mobility and labour market competition created by temp-to-perm fees and agency switching fees; the “sham contracting” debate; misleading job ads; privacy management and discrimination concerns are all reasons why there needs to be a coherent approach to ensuring that professional standards are maintained  in an industry that is increasingly conducted by e-commerce, across state and national borders, by members of an emerging profession, with very low entry barriers and in a rampantly competitive market.

Call it “regulation” if you want; but there seems little point in constructing another layer of bureaucratic interference when we still don’t know whether what we want “regulated” is an immigration; human rights; fair trading; industrial; revenue; consumer protection; privacy or discrimination issue – or perhaps something else. The truth is that a coherent approach to the industry needs to deal with all of these.  But there is already regulation in each of those areas.  What is missing is the coherent approach.

Is a licensing scheme really going to provide it? Probably not.

How well are the parochial licensing schemes working in the ACT; South Australia and Western Australia? Not very well .  How effective are they when the conduct which they attempt to regulate takes place across state and national borders from within un-regulated or de-regulated jurisdictions? Not at all.  How effective is the overly sophisticated Queensland statutory code of conduct supported by court powers to injunct an errant agency from engaging in specific conduct or even from continuing to operate in the industry? The provisions, enacted in 2005, when that State dismantled its licencing scheme, have never been used.

At this time, the only signs of any genuine effort at establishing professional standards are coming from within the industry itself – from the voluntary industry associations and from participants who are embracing a culture of professionalism, who are defining standards and who are making an individual and corporate commitment to ethical practice. And there are plenty of them.

But the cry goes up, “They have no teeth”. Spare us the gnashing of worn dentures! What is the need for any more teeth than are already provided to the statutory authorities that are charged with enforcing regulatory compliance in each of the fields in which recruiters engage? The regulation is already there. The teeth are already there.

Try explaining that to someone who thinks that you can actually “own” a candidate, or that a contract to supply recruitment services is somehow magically formed by winning a race to get a resume to a reluctant client more quickly than any one else – and that it will still be in place twelve months later, when the candidate on his or her own initiative succeeds in getting a job with that “client” – and that this somehow entitles the recruiter to a fee!

The good recruiters, the professional ones, already know that this is nonsense and they have rejected business models that are based on deeply entrenched and dangerous misconceptions. But for the ones who don’t, a licence is not going to fix it.

What is needed is a clearer understanding, on the part of industry participants and their clients, of the nature and value of the services that recruiters provide; and of why those services are still regarded as important elements in a flexible and well functioning labour market. What is also needed is an understanding of how regulation might improve the contribution that recruitment agencies make.

It is not until we reach those understandings that any sensible discussion about regulation of the recruitment industry can take place.  Without them, calls for industry regulation are at risk of being perceived as little more than the pursuit of a small agenda of self interest.

In the meantime, the law is there. It is effective and it does its work when called upon to do so. But I won’t be calling it “industry regulation” just yet.

The following is the unofficial headnote to the decision

From 2008, the appellant employed the respondent as a mining technician at an underground coal mine in the Hunter Valley. The respondent alleged that from mid-2010 he could no longer work due to a psychological or psychiatric disorder which was an injury suffered during his employment. The respondent claimed that his incapacity was total and sought compensation under the Workplace Injury Management and Workers Compensation Act 1998 (NSW). On 11 November 2011, Truss DCJ upheld the claim and ordered payment of compensation.

The issues in the appeal were whether the trial judge had erred by:

(i) constructively failing to exercise the jurisdiction of the Court by failing to consider “material and uncontested” evidence, and

(ii) failing to give any or any proper reasons.

The Court held, dismissing the appeal:

In relation to (i):

(per Basten JA, Beazley JA agreeing)

1. It is an error of law for a trial court to fail to exercise its constitutional function, which is to resolve a dispute presented to it by applying the law in accordance with proper procedure. The trial court must properly consider the merits of the case. However, an appeal court must take care not to overreach its statutory mandate by applying a value-laden standard: [9].

2. In the present case, the trial court fulfilled its constitutional function by resolving disputed factual issues. The trial judge’s reasons demonstrated that her Honour was cognizant of all the issues raised by the appellant in its grounds. In setting out the claimant’s evidence in respect of the various incidents, the trial judge noted the challenges raised by the defendant and, where relevant, their nature: [9], [29].

Minister for immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; Kahn v Minister for immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 considered.

In relation to (ii):

(per Basten JA, Beazley JA agreeing)

3. The requirement to give reasons is an incident of the judicial process. However, the requirement is neither universal in application nor consistent in nature. The function of an appellate court is to determine, not the optimal level of detail required in reasons for judgment, but rather the minimum acceptable standard: [47] – [48]

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 considered.

4. The trial judge identified the significant challenges to the claimant’s evidence and implicitly made the necessary factual findings. Only limited reasons were given for the assessment of the cross-examination of the claimant. Nonetheless, the reasons satisfied the undemanding standard applicable to credibility findings: [60], [71].

5. The trial judge accepted the evidence of the expert called by the claimant as to the causes of the claimant’s injuries. Where an expert provides a detailed history, accepted by the trial judge as established on the evidence, little justification is required for accepting unchallenged opinions based on that history: [61], [72].

(per Macfarlan JA, in dissent)

6. Where a right of appeal exists only in respect of a question of law, reasons for a finding of fact can be less elaborate. However, the principle that justice must not only be done but must be seen to be done nonetheless requires that a judge provide reasons on any critical issue. The crucial question in the present case was the impact of the work-related incidents on the claimant. Her Honour failed to provide reasons for her finding on this critical issue and, accordingly, the process of decision-making miscarried: [78] – [80], [83] – [84].

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329 considered.

READ THE FULL DECISION HERE

To give you a glimpse of the blindingly obvious, I will commence by saying that a lawyer’s ethical responsibilities in the practice of advocacy spring from his or her “paramount” and “overriding” duty to the court, as an officer of the court.

The best-known exposition of this duty is in Rondel v Worsley [1969] 1 AC 191 at 227. It was there said that every counsel has a duty to his or her client to fearlessly raise every issue, advance every argument, and ask every question, however distasteful, which he or she thinks will help the client’s case. However, it was also said that  all of that notwithstanding, the overarching principle is that counsel must not mislead the court.

These two simple propositions break down into a subset of what are all of the well-known ethical guidelines in advocacy. I will deal with some of the more important of these. You no doubt know all of these rules but I sometimes think that first, recognizing them and second, observing them in practice, can prove to be difficult for counsel. It is the nuances that are problematic.

For example, the duty to fearlessly represent does not extend to slavishly following a client’s every wish in advancing evidence or presenting argument. Counsel is independent in presenting a client’s case and must not misuse court time. This means that counsel must refrain from irrelevant cross – examination and from pursuing submissions that are really unarguable, even though the client may wish to chase every rabbit down its burrow, as Mason CJ put it in Giannarelli v Wraith (1988) 165 CLR 543 at 556.

READ FULL PAPER HERE

READ THE DECISION HERE

You may lose a case in the short term. You then move
on to the next one. Time should heal any pain of losing a case. But if
you lose your reputation and your integrity then you have probably lost
your career.

At the recent week long Advanced Trial Advocacy Course I co-ordinated for the Australian Bar Association in Brisbane, each day’s work was preceded by a related afternoon lecture and demonstration by some of Australia’s most experienced and talented advocacy coaches.

The first such lecture was presented by Justice Ken Martin of the West Australian Supreme Court. He dealt with the theory and practice of case analysis, an essential prelude to the first step in any trial, the  preparing of the final address and from there to the preparation of  evidentiary objections, legal submissions, cross-examination and lastly, the opening address.

Justice Martin’s paper is republished here with his Honour’s kind permission and should be of interest to every member of the Bar.

READ PAPER HERE