SPOTLIGHT Archive

AGS welcomes Ian Govey, our new Chief Executive Officer

30 March 2010

 

 

 

 

 

AGS is pleased to announce that Ian Govey commenced as the Chief Executive Officer of AGS on Monday, 29 March 2010.

Ian was previously the Deputy Secretary, Civil Justice and Legal Services, in the Attorney-General's Department. He has held a number of senior positions in AGD and has worked at the Australian Embassy in Washington DC and in the Treasury.

He held various roles at AGD in which he was responsible for law reform in corporate, copyright, trade and other areas of commercial law. As Deputy Secretary Ian had responsibility for administrative law, federal courts and tribunals, native title, human rights, family law, legal assistance, Indigenous justice, Territories, copyright, personal property securities, classification, constitutional policy, international law, legal services to government and the drafting and publication of legislative instruments.

From 1997 to 2000, Ian had a close role with AGS people that ‘confirmed his already high regard for the individuals and the role of AGS. My role was to implement the government's decision to set it up. I was the leader of the team preparing the legislation and covering off the legal issues, including establishing guidelines for purchasing Commonwealth legal services.’

Ian has a Bachelor of Laws (Hons) from the University of Adelaide and Bachelor of Economics from the Australian National University. He was admitted as a legal practitioner in the ACT in 1975.

After completing his law degree, he commenced work with the Crown Solicitor's Office (the forerunner of AGS). After six months, he moved to the central office of the Attorney-General's Department.

After nearly 35 years at AGD — and working for 13 Attorneys-General — he returns to the organisation where he started his career.

AGS warmly welcomes new CEO Ian Govey.

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AGS legal training in 2010: now open to all

11 February 2010

 

 

 

For over a decade now, AGS has been providing high-quality legal education to employees of the Commonwealth and Commonwealth bodies. Our courses are written and presented by some of the most experienced lawyers in their fields, and we have earned an excellent reputation for clear, up-to-date, informative and entertaining presentations.

Our training programs are now available to the public

The great news for those seeking high-quality legal training is that, as a result of recent changes, AGS is now able to provide legal training to members of the private legal profession, students and the broader public as well as to those working in government.

For information about the extensive range of AGS courses that are now more widely available click on the following link: http://www.ags.gov.au/whatweoffer/training/index.htm

Our expanded administrative law program will run in March 2010

In March and September 2009 we ran an intensive administrative law course, ‘Excellence in Government Decision Making’, in conjunction with the University of Sydney. Both sessions were extremely successful, so we are running the course again in March 2010.  

To meet the increased demand that will no doubt result from the expansion of our services and to provide greater flexibility for clients, in 2010 we will introduce a condensed two-day Symposium running alongside our ‘Excellence in Government Decision Making’ course, entitled ‘Administrative Law Symposium: Commonwealth and New South Wales’. Both of these courses are valuable and cost-effective resources for students, lawyers and public servants.

Excellence in Government Decision Making course: 22 to 26 March 2010

This year our Excellence in Government Decision Making course will take place from 22 to 26 March 2010 at the new Sydney Law School building on the campus of the University of Sydney.

The course will be presented by senior AGS solicitors and counsel with extensive experience in the areas of law under discussion and involvement in major administrative law litigation. They will focus on the fundamentals and practicalities of administrative law with an emphasis on decision-making principles and current developments.

Participants will also benefit from the expertise of academics from the University of Sydney and the University of New South Wales, and from the perspective provided by the Public Interest Advocacy Centre. Faculty experts from the University of Sydney Faculty of Law will give lectures on justiciability and remedies, ultra vires and procedural fairness, and the impact of international law on decision making.

Administrative Law Symposium: 25 to 26 March 2010

The Administrative Law Symposium: Commonwealth and New South Wales will be held on Thursday 25 and Friday 26 March 2010. Commonwealth and New South Wales public servants, including decision makers, policy makers and agency legal staff, will find this course invaluable.

As mentioned above, the course is now open to members of the public and those in private legal practice for whom the Symposium will qualify as continuing legal education.

The course has been designed to introduce participants to the principles of administrative law in the Commonwealth and New South Wales. Specific topics such as privacy, freedom of information and national security will also be covered.

The Commonwealth Attorney-General, the Hon. Robert McClelland MP, will open the Symposium on 25 March and the Secretary of the Commonwealth Attorney-General's Department, Mr Roger Wilkins AO, will close the Symposium on 26 March.

Both courses give participants unique access to leaders in administrative law

Judges of the Federal Court and New South Wales Supreme Court (including the Chief Justice of the NSW Supreme Court, The Hon. James Spigelman AC), the Presidents of the Administrative Appeals Tribunal and Administrative Decisions Tribunal, and leading members of the Bar will speak at both courses. Session times are generous, so there will be ample opportunity to ask questions of our eminent guests.

Also, a dinner will be held on Wednesday evening, 24 March 2010, for participants in the Excellence course and Symposium, offering participants a great opportunity to network with others involved in administrative law and be entertained by an after-dinner speech by the Hon. Justice Jeffrey Spender from the Federal Court of Australia.

Contact us for more information

Both the Excellence course and the Symposium will be interesting and enjoyable legal training experiences. Given that these courses are now open to a larger range of people and interest is bound to be high, we recommend that you book your place as soon as possible.

If you would like further information on these two major concurrent events in 2010, including how to enrol, please visit the AGS website on: http://www.ags.gov.au/whatweoffer/training/Uni_of_Sydney_and_AGS.htm

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AGS advice and assistance on national energy market reform

4 December 2009

Jenny Francis, Danielle Chifley, Adam Kirk, Rebecca Eldred

The drive for efficiencies in Australia’s energy markets has been a major focus of the Commonwealth, in partnership with the states and territories, for nearly 20 years.

AGS has been advising the Australian Government over much of that time, as it worked with the other members of the Council of Australian Governments’ Ministerial Council on Energy to develop energy market policies, institutional frameworks and legislation. 

Reforms

Key reforms over the last five years have seen the transfer of regulatory regimes conducted under state and territory laws to a national cooperative framework covering electricity transmission and distribution networks and natural gas pipeline services.

The reforms have occurred via a number of reviews and intergovernmental agreements, most recently in the form of the Australian Energy Market Agreement, which was first executed in 2004 and amended in 2006. From 2004 to 2009, the Ministerial Council on Energy established three new energy market institutions and passed seven legislative packages addressing governance, electricity and gas transmission and distribution services, and electricity and gas markets. Significant efficiencies, and cost savings of some millions of dollars, have been achieved.

The regulation of energy is now carried out under a cooperative Commonwealth, state and territory scheme based on:

• the National Electricity Law, a schedule to the National Electricity (South Australia) Act 1996, and associated rules regulating electricity supply
• the National Gas Law, a schedule to the National Gas (South Australia) Act 2008, and associated rules regulating natural gas pipeline services.

The two laws are ‘templates’ enacted by South Australian law and adopted and applied (as amended from time to time) by South Australia and other participating jurisdictions. A third law covering retail issues is currently under development.

National regulatory authorities

Two of the new national institutions were established following reforms in 2005 to oversee the regulation of energy by the National Electricity Law and the National Gas Law. These are:

• the Australian Energy Regulator, established by the Trade Practices Act 1974, with responsibility for economic regulation of the relevant networks
• the Australian Energy Market Commission, a statutory authority responsible for rule making and market development.

The third national entity has now been established – the Australian Energy Market Operator (AEMO) – to manage operational aspects of Australia’s electricity and gas markets. AEMO commenced operations on 1 July 2009, replacing a number of state-based authorities and the National Electricity Market Management Company, strengthening the national character of energy market governance. AEMO operates under the National Electricity Law and National Gas Law, and is funded by market participants.

Further developments

A Natural Gas Services Bulletin Board has been established, which provides market information about the supply of, and demand for, natural gas. Also, a gas short-term trading market, an enabling framework for smart metering, and a national non-economic regulation package (the National Energy Customer Framework) are all in advanced stages of development.

AGS’s support

AGS has provided advice and assistance to government on all these reforms for a number of years. Several AGS lawyers, including Jenny Francis, Peter Nicholas, Danielle Chifley, Adam Kirk and Rebecca Eldred, have been outposted to the Department of Resources, Energy and Tourism to work side-by-side with policy officers. Their work has been supported and supervised by Guy Aitken, Leo Hardiman and Robert Orr QC.

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Robert Orr PSM QC appointed new AGS Chief General Counsel

6 November 2009

Robert Orr PSM QC

Robert Orr PSM QC was appointed as AGS’s new Chief General Counsel in 2009.

Robert took over from Henry Burmester AO QC, our Chief General Counsel since 1995, who retired in July. 

Working in our Office of General Counsel, Robert has advised and assisted clients at the highest levels of government for some 17 years. He regularly advises on Australia’s constitutional arrangements, the policy development and law making process, parliamentary matters and procedures, machinery of government, environmental and Indigenous law, and administrative decision making. He is also a highly skilled advocate, having acted in many significant matters before the High Court and Federal Court.

His distinguished contribution to Commonwealth legal practice and his legal expertise were recognised by his appointment as Commonwealth Queen’s Counsel in 2000. He also received the Public Service Medal in 1994 for his contribution to native title law and the development of the Native Title Act 1993.

Last year, Robert also completed the requirements for the award of a Master of International Law from the ANU.

Advising the Commonwealth

Robert joined AGS in 1983. In 1992 he became Deputy General Counsel in our Office of General Counsel. Since then he has assisted the Commonwealth in the development of some of its most important policies and legislation.

Native title

As principal legal adviser in the development of the Commonwealth Native Title Act, Robert was closely involved with drafting the legislation, managing its progression through the Parliament and advising on its implementation. He assisted with negotiations with Indigenous groups, industry groups, and the states and territories, and continues to do so as issues arise. He also advises on the interaction of native title with other land laws.

Recently, Robert has been deeply involved in the development and implementation of Commonwealth policy on Northern Territory Aboriginal township leases, which aims to provide for adequate management of these townships and to facilitate home ownership. 

Water

As the key adviser to the Department of the Prime Minister and Cabinet and the Department of the Environment, Water, Heritage and the Arts on recent water reforms, Robert, along with other AGS lawyers, assisted in the development of the Commonwealth’s Water Act 2007 and Water Amendment Act 2008.

Energy

Robert has also played a pivotal role in advising the Commonwealth on energy market reform, particularly in relation to the introduction of a national legislative framework for the Australian energy market involving Commonwealth, state and territory governments.

Advocacy

Robert’s reputation as an experienced and skilled advocate has led to his involvement in many significant matters, including:

• Griffiths v Minister for Lands, Planning and Environment (NT) (2008) concerning the compulsory acquisition of native title
• Clark v Vanstone (2005) concerning the dismissal of a statutory office holder for misbehaviour
• A v Boulton (2004) concerning the powers of the Australian Crime Commission and Commonwealth decision making.

AGS congratulates Robert on this very important appointment.

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AGS welcomes Avinesh Chand, expert in privacy and freedom of information law

12 August 2009

Avinesh Chand

AGS is pleased to announce that we have recently gained the expertise of Avinesh Chand, who joins us as a Senior Lawyer with a strong background in litigation and public law, particularly in relation to privacy and freedom of information issues.

Prior to joining us, Avinesh was a senior associate at Clayton Utz. In this role he provided advice to a wide range of government clients in matters relating to administrative law, statutory interpretation, freedom of information and privacy law.

He also appeared as an advocate in the Federal Magistrates Court and Federal Court on judicial review matters and in the Administrative Appeals Tribunal in merits review matters on behalf of a number of Commonwealth agencies.

Avinesh has broad experience in immigration and refugee law, having previously worked as an Acting Director and Senior Legal Officer in the Legal Services Branch of the Department of Immigration and Citizenship. He managed litigation on behalf of the Minister for Immigration and Citizenship in court and tribunal proceedings relating to decisions made under the Migration Act 1958, the Australian Citizenship Act 1948 and the Freedom of Information Act 1982.

In 2007, as part of AusAID's Australian Youth Ambassadors for Development (AYAD) Program, Avinesh spent a year working with the United Nations High Commissioner for Refugees (UNHCR) in Bangkok, Thailand, interviewing asylum seekers, assessing claims for protection, making refugee status decisions and drafting reasons for decision. He also trained UNHCR staff on refugee law, administrative law and decision-making processes.

AGS has a team of lawyers specialising in privacy and FOI law. For further information on these issues, please contact Avinesh (T 02 6253 7427), Justin Davidson (T 02 6253 7240) or Justin Hyland (T 02 6253 7417).

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Prestigious taxation law award to AGS’s Catherine Leslie

9 April 2009

Catherine Leslie

AGS’s Sydney-based Special Counsel Tax Litigation, Catherine Leslie, has recently been awarded the prestigious Graham Hill Award. The Graham Hill Award, which recognises those who have achieved excellence in the area of taxation law, was founded in memory of the late Justice Graham Hill of the Federal Court.

Presentation of the award

In a ceremony last week, Catherine was presented with her award by Justice Edmonds of the Federal Court in Sydney. Speeches on the occasion were given by Mr Michael D’Ascenzo, Commissioner of Taxation, and Mr John Durack SC. They both spoke of Catherine’s skill, high standards, and ethical and sensible approach to the conduct of taxation matters.

In his speech, Mr D’Ascenzo said:

… the work that Catherine does in ensuring that matters are litigated in a way conducive to the administration of justice underpins a society’s respect for the rights of its citizens and the citizen’s respect for society.

John Durack SC said that her work ‘ensures the integrity of the whole complex organism of which we are part’ and described Catherine as ‘grounded, reasonable and wise’.

Catherine with Mr Michael D’Ascenzo, Commissioner of Taxation.

Catherine looking at her award with Mr Robin Speed, who established this annual award and who was a member of the award committee.

Photos courtesy of Anna Kucera, Paramount Studios

Catherine’s work with AGS

In his speech, Mr Durack mentioned one of AGS’s key strengths, to which Catherine has made a major contribution:

… there is no other body with anything like the knowledge of legal issues affecting government or with a corporate memory anywhere near as profound and wide ranging as that possessed by AGS.

Catherine is the longest-serving member of AGS’s tax practice, having joined the group in the early 1980s. She is now in charge of all AGS’s tax litigation throughout Australia and is based in AGS’s Sydney office. She has been responsible for many notable taxation cases, including John v FC of T, Hart v FC of T, Macquarie Finance v FC of T and Saga Holidays Pty Ltd v FC of T.

AGS congratulates Catherine on her award, which reflects the high level of her achievement in the field of taxation law.

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Working for the public good: AGS and pro bono

12 March 2009

Bronwyn Neroni

Leanne Bowen

AGS announces the appointment of Pro Bono Manager

AGS is pleased to announce the appointment of Senior Lawyer Bronwyn Neroni as AGS's Pro Bono Manager. Bronwyn commenced in the Pro Bono Manager role in March.

Bronwyn's appointment reflects AGS's commitment to pro bono work. While AGS has a long history of supporting pro bono work by our lawyers in their own capacity, over the last two years we have undertaken pro bono activities as a firm.

In 2008, AGS subscribed to the National Pro Bono Resource Centre's aspirational target for pro bono work. Bronwyn, as our Pro Bono Manager, will be instrumental in achieving AGS’s goal of meeting or exceeding this target.

Bronwyn is based in our Brisbane office. With a background in trade practices, administrative law and tax litigation, Bronwyn has for the past three years worked with our national corporate teams on issues of business strategy, corporate governance, corporate planning and risk management.

Bronwyn will support the AGS Pro Bono Committee with its current projects and with identification and development of future pro bono projects in Australia and overseas.

We look forward to further developments in AGS's pro bono program as a result of Bronwyn’s appointment.

 

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AGS and the University of Sydney introduce new intensive administrative law course for 2009

16 December 2008

AGS CEO, Rayne de Gruchy, listening to speakers at the High Court of Australia

The Faculty of Law of the University of Sydney and the Canberra office of AGS recently launched their collaboration to offer a new week-long administrative law intensive course in 2009 called ‘Excellence in Government Decision-making’. The course is a unique, valuable and cost-effective resource for students, lawyers and public servants.

The launch was held at the High Court of Australia on 25 November 2008. The Hon. Justice WMC Gummow AC, who has a long association with the University of Sydney as both a former student and a lecturer, gave the keynote address.

Denise Saunders, AGS Canberra Office Client Training Manager, was one of the speakers at the launch.

Program and presenters

The course will be presented by a team of leading University of Sydney academics and experienced AGS practitioners.

AGS presenters will focus on the fundamentals and practicalities of administrative law. This part of the course will include a survey of administrative law concepts and institutions, with an emphasis on decision-making principles and current developments. AGS solicitors and counsel with involvement in major administrative law litigation will speak during the course.

The Faculty of Law will provide topical lectures and discussions concerning particular administrative law subject areas such as justiciability and remedies, refugees, the environment and the impact of international law on decision making.

The course will provide participants with an excellent understanding of administrative law in the government context including in-depth coverage of fundamental concepts, relevant practices, current developments and topical issues in administrative law.

Participants will receive a certificate of completion jointly issued by the Faculty of Law and AGS. Participants will also have the option of completing an item of assessment through the Faculty of Law which will earn full course credit at Diploma or Masters level.

More information about the ‘Excellence in Government Decision-making’ course can be found in this brochure.

Ask AGS's Canberra Training Team

AGS's Canberra office, through the Canberra Training Team, now offers 30 different legal courses to its government clients in Canberra and across Australia. It provides almost 200 course sessions and trains thousands of public servants each year.

The AGS Canberra Training Team is committed to providing excellent client service and looks forward to meeting the specific training requirements of its many clients.

Full details of our courses can be found on our website at http://www.ags.gov.au/whatweoffer/training/index.htm

For more information about our training courses please contact Di Harvey, Senior Training Administrator, T 02 6253 7126 or cbrtraining@ags.gov.au.

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AGS’s Simon Daley takes on new role with Law Council of Australia

12 November 2008

Simon Daley

Simon Daley, National Practice Leader of the Litigation and Disputes Management Group, has recently been appointed as the Chairman of the Federal Litigation Section of the Law Council of Australia. Simon was formerly the Deputy Chair of the section. Other AGS specialists involved with the Law Council include Tom Howe QC, AGS’s Chief Counsel Litigation, who is a member of the Executive of the Federal Litigation Section.

Federal Litigation Section of the Law Council of Australia

The Law Council is the peak representational body for lawyers in Australia. The council’s specialist Federal Litigation Section has wide-ranging functions, including:

• representing the interests of lawyers through committees and special interest groups in the areas of administrative law, Commonwealth compensation and employment law, federal court practice, and industrial law
• consulting on various issues with bodies such as the Federal Court of Australia, the Australian Industrial Relations Commission, the Australian Law Reform Commission, Comcare, and the Attorney-General's Department
• organising periodic seminars and workshops, and producing a member newsletter.

Committees of the Federal Litigation Section

Much of the section’s work is undertaken through its committees – the Industrial Law Committee, the Administrative Law Committee, the Commonwealth Compensation and Employment Law Committee, the Federal Court Liaison Committee and the Administrative Appeals Tribunal Liaison Committee. These Committees are regularly involved in providing input to Law Council submissions to government and running practitioner forums.

Committee work: seminars and workshops

In the past year the Federal Court Liaison Committee co-hosted the Joint Law Council / Federal Court Workshop in Adelaide on Case Management and the Docket System. This was a particularly significant event which has led to several new Notices to Practitioners, including:

• a Notice to Practitioners in relation to the conduct of the Tax List, with some features similar to the so-called ‘Rocket Docket’ (a fast track list) in Victoria
• a Notice to Practitioners which reinforces the importance of the docket system and the Court’s expectations regarding case management
• a revised set of expert evidence guidelines.

These new notices give effect to the approaches to more effective case management that were identified at the Adelaide Workshop. A clear focus for the committee remains working closely with the Court to maintain the impetus created by the Adelaide workshop and continue to promote more effective case management (by the Court and practitioners).

The Industrial Law Committee ran a successful seminar series on occupational health and safety (OH&S) laws, as well as contributing to the reviews of Comcare and the OH&S laws.

The Administrative Law Committee and the Administrative Appeals Tribunal Liaison Committee are currently working with the Tribunal to host a joint Law Council / Administrative Appeal Tribunal Seminar in the new year.

The section is also active in the area of client legal privilege and hosts a website containing updates on new cases and links to topical material. It is expected that the section will run a series of client legal privilege seminars in the new year.     

If you have any questions regarding the Federal Litigation Section or the Law Council, please contact Simon Daley.

Resources

Click here for more on the Law Council of Australia and here for more on the Federal Litigation Section.

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AGS experts providing high-quality training to clients

13 October 2008

Justin Davidson

Virginia Masters

Cathy Dowsett

"AGS training is presented by experts in the relevant field. Presenters are there to empower participants, to guide them to an understanding of the underlying principles and show them how to find the right answers for themselves. Training sessions are full of exercises, examples and challenging discussion, and we always draw on the valuable experience that participants bring with them. You leave an AGS course with new knowledge, valuable insight and a fresh perspective." Justin Davidson, AGS Senior Lawyer and specialist trainer.

Our presenters are experts in their fields

Justin Davidson is one of the many skilled lawyers in AGS’s Canberra office who also have a talent for writing and presenting high-quality, practical training to clients drawing on many years of experience in legal practice. Among his strongest attributes are his outstanding statutory interpretation skills, supreme technical know-how in relation to information access legislation, and excellent negotiation and litigation management abilities. Justin regularly advises on principles of decision making and statutory interpretation in administrative law contexts, including freedom of information, privacy and records management. He also presents freedom of information and administrative law training modules along with colleagues Justin Hyland, Kirsty Windeyer and Tim Moe.

From the outset of her 11-year career with AGS, Cathy Dowsett, AGS Senior Executive Lawyer, has focused on public sector employment law. Cathy now routinely appears as Counsel for the Commonwealth in cases involving allegations of unlawful discrimination and unfair dismissal. She has advised on and assisted with the successful resolution of a number of complex employment law matters involving work performance, review of actions, public service discipline, occupational health and safety, and compensation. Cathy has drawn upon her experience to write and present training seminars addressing a range of employment law issues.

Senior Executive Lawyer Virginia Masters, in the course of her nine years at AGS, has advised and acted for many government departments and agencies on employment-related matters. She has undertaken numerous investigations into employee misconduct, and acted in unfair dismissal litigation and discrimination complaints. Virginia regularly delivers training to clients about the legal aspects of the employer–employee relationship, assisting clients to develop the skills to deal with situations where employer or employee obligations have not been met.

Our courses are developed to meet clients' needs

During 2008 Virginia and Cathy have been involved in delivering the two-day workshop 'How to run a Code of Conduct Investigation'. The workshop, authored by Virginia and Cathy, is supported by detailed reference materials and provides participants with knowledge, information and practical skills necessary to undertake a Code of Conduct investigation. It also equips them to recommend an appropriate sanction when a breach is found to have occurred. Code of Conduct issues are extremely complex, but Virginia’s and Cathy’s considerable legal and practical expertise in this area combined with their outstanding communication skills make the concepts far easier to grasp. Over the last year, Virginia and Cathy have presented the workshop to the Australian Taxation Office four times, and have received excellent feedback.

They have also presented training in every state and territory of Australia on issues involved in bullying and harassment in the workplace.

AGS's Canberra office, through the Canberra Training Team, now offers 30 different legal courses to its government clients in Canberra and across Australia. It provides almost 200 course sessions and trains thousands of public servants each year.

AGS now has Quality Assurance Provider status in WA

Recently, at the instigation of the alert and entrepreneurial Graeme Windsor (Director of AGS’s Perth office), the Canberra Training Team applied for QA Provider status for the purposes of the WA Legal Practice Board's new policy on continuing professional development. The AGS application was favourably commented on and was successful, and AGS is now listed on the LPB website as a QA Provider.

AGS can also provide agency specific tailored courses

Half of the courses run by AGS are especially designed for our clients at their request. For example, in October, Justin Davidson is presenting freedom of information training for departments in the ACT Government and also travelled to South Australia to deliver a number of agency-specific modules for a SA Government department. In addition to this, he is developing specialised training for some of our Commonwealth Government agencies.

Ask AGS's Canberra Training Team

The AGS Canberra Training Team is committed to providing excellent client service and looks forward to meeting the specific training requirements of its many clients.

Full details of our courses can be found on our website at http://www.ags.gov.au/whatweoffer/training/index.htm

For more information about our training courses please contact Di Harvey, Senior Training Administrator, T 02 6253 7126 or cbrtraining@ags.gov.au.

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AGS welcomes Warren Scott, expert in financial and corporate law

19 September 2008

Warren Scott

AGS is pleased to announce that its Commercial practice has recently gained the expertise of Mr Warren Scott, who joins us as a Senior Executive Lawyer. Warren strengthens our already considerable national group of specialist commercial Senior Executive Lawyers.

Warren has extensive experience in commercial law, with a focus on financial and corporations law. He has considerable international consultancy expertise and has worked in New York, London and throughout the Asia Pacific region.

Prior to joining us, he was General Counsel and Managing Director of Citigroup Australia. He managed litigation, regulatory investigations and advice on all public and private equity and debt offerings underwritten or placed by Citigroup.

Warren also spent more than 10 years as managing partner at Coudert Brothers, Sydney office, where he provided strategic advice on complex financial matters to clients including the Australian Government, investment and commercial banks, major corporates and private equity and hedge funds. He regularly provided high-level advice on significant funds management and compliance matters, including international transactions, the offer of securities and complex banking transactions.

Warren’s background in corporate law includes advising on corporate compliance, acquisitions of corporations, negotiation of joint ventures and distribution agreements. His considerable experience in organisational management and as in-house legal counsel provides him with a thorough understanding of legal and regulatory requirements as well as business imperatives.

AGS has a team of lawyers specialising in commercial, financial and corporate law. For further information on these issues, or on other commercial matters, please contact John Scala, Chief Counsel Commercial T 03 9242 1321, or Linda Richardson, National Practice Leader T 02 6253 7207.

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AGS welcomes Louise Rafferty to our administrative review team

12 September 2008

Louise Rafferty, AGS’s new Senior Executive Lawyer

AGS is pleased to announce that Louise Rafferty has joined us in our Canberra office. A highly experienced litigator, Louise will add further depth to our administrative review practice, where she will focus on conducting and supervising administrative review claims for government agencies and departments.

With over 14 years experience, Louise has an extensive background in alternative dispute resolution. She has a proven ability to deal skilfully with disputes, providing strategic advice in relation to resolution prospects or settlement negotiations and conducting numerous settlement conferences on behalf of clients.

Louise also has exceptional experience and depth of knowledge in workers compensation claims and insurance law, having been involved in a number of significant compensation and liability claims in various courts within most Australian jurisdictions, including the Federal Court and High Court. She previously supervised litigated public liability insurance claims and workers compensation claims with Mallesons Stephen Jaques.

AGS has a team of lawyers specialising in administrative review. For further information on these issues, or on other litigation matters, please contact Jenny Anderson, Litigation Practice Manager, T 02 6253 7401.

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Tom Howe QC appointed to National Alternative Dispute Resolution Advisory Council

Tom Howe QC

AGS Chief Counsel Litigation, Tom Howe QC, has been appointed one of four new members of the National Alternative Dispute Resolution Advisory Council (NADRAC), an independent, non-statutory body providing policy advice to the Attorney-General about alternative dispute resolution. The Attorney-General, Robert McClelland, announced the three-year appointments on 4 June 2008.

For the last 22 years at AGS, Tom has concentrated on litigation and advocacy work. He was appointed Chief Counsel Litigation in 2002. He has appeared as counsel for the Commonwealth in many key cases before various courts and tribunals, including the High Court, the Federal Court, the Supreme Courts of the states and territories and the Administrative Appeals Tribunal. He has advised and appeared for the Commonwealth in various inquiries and commissions.

Tom was a fellow speaker with the Attorney-General at last week's ADR in Government Forum held in Canberra and jointly organised by NADRAC and the Office of Legal Services Coordination. The paper he presented at the forum can be accessed here.

The Attorney-General has stated that the new members 'will make a valuable and broad ranging contribution to NADRAC's work, including through promoting the use and profile of alternative dispute resolution'.

Tom will make a great contribution to NADRAC's important work in developing ADR in Australia.

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AGS's assistance to the inquiry into equine influenza

Catherine Kelso, Andras Markus, Rebecca Reid, Sharon Hanstein and Simon Daley

During 2007 AGS was appointed to act as Solicitors Assisting the Commission of Inquiry into the August 2007 Outbreak of Equine Influenza.

AGS's team for the inquiry comprised Andras Markus (Team Leader), Sharon Hanstein, Catherine Kelso and Rebecca Reid. AGS Special Counsel Litigation, Simon Daley, was a consultant to the team.

The equine influenza outbreak

In late August and early September 2007 the exotic disease equine influenza spread across parts of New South Wales and Queensland. The outbreak threatened to have a significant economic impact on the Australian horse industry if it were to become widespread in Australia.

A national response effort involving the federal government, state governments and a number of industry organisations was launched to contain and eradicate the virus.

The last case of the equine influenza virus was detected on 22 December 2007.

Announcement of inquiry and terms of reference

On 2 September 2007, then Prime Minister, the Hon. John Howard, and then Minister for Agriculture, Fisheries and Forestry, The Hon. Peter McGauran MP, announced a full, independent inquiry into the outbreak.

The terms of reference for the inquiry were to inquire into and report on:

1. the circumstances that contributed to the outbreak of equine influenza in Australia
2. the need for any strengthened biosecurity procedures for quarantine management of imported horses.

The Commission

On 25 September 2007, the Hon. Mr Ian Callinan AC was appointed Commissioner by the then Minister for Agriculture, Fisheries and Forestry under section 66AY of the Quarantine Act 1908. Tony Meagher SC, Alister Henskens and Rob Anderson were appointed as counsel assisting.

Hearings formally opened on 3 October 2007 and were completed on 3 April 2008. The report of the inquiry has been presented to the Hon. Tony Burke MP, Minister for Agriculture, Fisheries and Forestry.

AGS's role in the inquiry

During the inquiry, the AGS team assisted the commission by:

• helping to set up the commission
• managing and reviewing material produced under the commission's compulsory powers, which primarily consisted of material produced by the Department of Agriculture, Fisheries and Forestry (which was represented by another law firm)
• dealing with the parties and witnesses and their legal representatives
• preparing evidence for tender
• instructing counsel assisting in the hearings.

AGS also provided legal advice to the Commissioner as necessary.

We were very pleased to have been chosen to assist the commission. Our appointment reflects the Attorney-General's Department's recognition and appreciation of our in-depth experience with royal commissions and inquiries, including the 2001–03 HIH Royal Commission and the 2005–06 Oil for Food Inquiry.

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AGS experts to present seminars on indemnities

Linda Richardson

In May and June 2008, AGS experts will present seminars in several Australian capital cities on the use of indemnities in commercial transactions.

Port Phillip Bay Dredging Decision

Emily Nance

David Brown

Larson Landes

AGS successfully represented the Commonwealth in the recent Blue Wedges litigation in the Federal Court in Melbourne.

AGS welcomes Darryl Wookey, expert in freedom of information

Darryl Wookey

We are pleased to announce that our Canberra Information Access Team, led by Justin Hyland, has recently expanded to include Ms Darryl Wookey, who joins us as a senior executive lawyer.

AGS lawyer experiences pro bono work with ACT Pro Bono Clearing House

Karina Harvey

Karina Harvey, a litigation lawyer in AGS’s Canberra office, spent some of last year working part time at the ACT Pro Bono Clearing House. This work was supported by AGS, as an AGS-sponsored pro bono project under our national Pro Bono Policy.

• a public interest legal issue that affects a significant number of people or is of broad public concern; or
• a private interest law matter (i.e. a litigious matter with reasonable prospects of success or a non-litigious matter with reasonable prospects of achieving the outcome the applicant seeks).

The High Court and the Constitution

David Bennett QC, Deputy Government Solicitor, and Senior Executive Lawyer Andrew Buckland work in the Constitutional Litigation Unit and lead AGS's constitutional litigation practice.

AGS has an unmatched High Court practice and has acted in many landmark matters for the Australian Government. The following are some of the significant constitutional cases in the High Court in which we acted during 2006–07. Issues ranged from national security and acquisition of property to judicial power.

Attorney-General (Vic) v Andrews

The High Court held that provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) under which a private corporation may be licensed as a self-insurer and thereby taken out of the Victorian WorkCover scheme were supported by the corporations power (section 51(xx) of the Constitution) and did not infringe the ‘State insurance’ proviso in the insurance power (section 51(xiv) of the Constitution).

Thomas v Mowbray

The High Court upheld the validity of Subdivision B of Division 104 of the Criminal Code (Cth), which deals with the making of interim control orders to protect the public from a terrorist act. The court held that the provisions were supported by the defence power (section 51(vi) of the Constitution), supplemented for some justices by the external affairs power (section 51(xxix)) where necessary, and did not infringe Chapter III of the Constitution.

Bennett v Commonwealth

The High Court upheld the validity of the Norfolk Island Amendment Act 2004 (Cth), which prescribes Australian citizenship as a qualification to vote or stand for election for the Norfolk Island Legislative Assembly, under the territories power (section 122 of the Constitution).

Attorney-General (Cth) v Alinta Ltd

The High Court allowed the Attorney-General’s appeal from a decision of the Full Court of the Federal Court and upheld the validity of section 657A(2)(b) of the Corporations Act 2001 (Cth). The High Court decided that s 657A(2)(b) was not invalid on the ground that it purported to confer the judicial power of the Commonwealth on the Takeovers Panel.

Bodruddaza v Minister for Immigration and Multicultural Affairs

The High Court held invalid section 486A of the Migration Act 1958 (Cth), which imposed a definite time limit on applications to the High Court for judicial review by way of the constitutional writs under section 75(v) of the Constitution.

Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board

The High Court upheld the disciplinary powers of the Companies Auditors and Liquidators Disciplinary Board under section 1292 of the Corporations Act 2001 (Cth). The court held that the board was not exercising judicial power contrary to Chapter III of the Constitution.

Visnic v Australian Securities and Investments Commission

The High Court upheld the validity of section 206F of the Corporations Act 2001 (Cth), which confers power on ASIC to disqualify a person from managing a corporation. The court held that ASIC was not exercising judicial power contrary to Chapter III of the Constitution.

White v Director of Military Prosecutions

The High Court upheld the validity of sections 115 and 129 of the Defence Force Discipline Act 1982 (Cth). The sections conferred jurisdiction on courts martial and Defence Force magistrates respectively to try defence members charged with service offences, including those based on offences against the laws of the Australian Capital Territory. The court held that such trials did not involve the exercise of the judicial power of the Commonwealth within the meaning of Chapter III of the Constitution.

Santos Ltd v Chaffey

The High Court upheld the validity of retrospective amendments to statutory entitlements to workers compensation under the Work Health Act (NT) as not involving an acquisition of property requiring ‘just terms’.

Roach v Electoral Commissioner

The High Court held invalid amendments made in 2006 to the Commonwealth Electoral Act 1918 (Cth) that precluded prisoners who were serving any sentence of imprisonment from voting in a federal election. However, the High Court also held that the pre-2006 legislation, which prevented prisoners who were serving a sentence of imprisonment of three years or longer from voting, continued in force and was valid.

 

For further information please contact:

Andrew Buckland
Senior Executive Lawyer
Constitutional Litigation Unit
T 02 6253 7024 F 02 6253 7303
andrew.buckland@ags.gov.au

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‘A High Watermark in the Enforcement of Competition Law in Australia’¹

Susan Pryde

Martin Lockett

The Australian Competition and Consumer Commission (ACCC), assisted by AGS, secured a major victory in November 2007 when a record $36 million penalty was ordered against Visy Board Pty Ltd (Visy) and the Visy Group’s director and owner, Richard Pratt, for serious cartel conduct. Separate penalties, totalling $2 million, were ordered against Harry Debney, the Visy Group's former CEO, and Rod Carroll, Visy's former general manager.

These groundbreaking penalties followed eleventh-hour admissions by Visy that it had participated in a long-running price-fixing cartel with industry rival Amcor Ltd (Amcor). The cartel had operated over a four-year period in Australia's $2 billion corrugated fibreboard packaging (CFP) market, 90% of which was supplied by Visy or Amcor.

This settlement was successfully negotiated with Visy only weeks from the commencement of trial. Significantly, the resulting Agreed Statement of Facts and consent orders, which were emphatically adopted by Justice Heerey in his judgment of 2 November 2007, mirrored, for the most part, the ACCC's pleadings against Visy.²

This extraordinary outcome for the ACCC was preceded by several years of exhaustive investigation and case preparation by the ACCC, AGS and counsel.

Background

In late 2004, senior executives from Amcor approached the ACCC and admitted to having engaged in the cartel with Visy. As Amcor was 'first in the door' with this information, it was granted conditional immunity from penalty proceedings under the ACCC’s Immunity Policy.³

Amcor admitted that it had entered into an agreement with Visy to increase prices and retain respective market shares in the CFP market. In support of these allegations, Amcor provided the ACCC with a unique arsenal of evidence. This included taped covert recordings of discussions between senior Amcor executives, and Mr Debney of Visy, about the cartel. ACCC interviews with senior Amcor executives also provided compelling evidence of cartel conduct.

The ACCC soon instructed AGS to act in the matter. Almost a year later, after months of witness interviews and further investigation, the Statement of Claim was filed. Three Visy companies were initially named as Respondents (although, ultimately, orders were only sought against Visy), along with Mr Pratt, Mr Debney and Mr Carroll.

The cartel conduct

‘One of the most serious, blatant cartels that the ACCC has litigated’⁴

The five-year cartel in the CFP industry was underpinned by an 'overarching understanding' arrived at in early 2000, when Mr Debney met with Peter Brown, the then managing director of Amcor Australasia, at Mr Brown's home in the leafy Melbourne suburb of Glen Iris.

This understanding included an agreement to collude on tenders for major contracts, in order to ensure that Amcor and Visy each retained their major customers. If any major customer was 'stolen' by one company then that company would be required to provide 'compensation' to the other company by ensuring that an account, or accounts, of similar value changed hands in the opposite direction.

Many of Australia's major companies, and in turn their customers, were affected by the understanding. This included Cadbury Schweppes, Nestlé, Goodman Fielder, George Weston Foods, and Foster's. As Justice Heerey stated:

Every day every man, woman and child in Australia would use or consume something that at some stage has been transported in a cardboard box. The cartel in this case therefore had the potential for the widest possible effect.⁵

The cartel also included agreements by Visy and Amcor to collude in imposing annual price increases on CFP products purchased by (typically smaller) non-contract customers, such as fruit and vegetable growers, between 2000 and 2003.

These various understandings came about in particularly surreptitious ways, with Amcor and Visy executives meeting in motel rooms, pubs, public parks and the Crown casino to discuss the cartel. Discussions would also be held using prepaid mobile phones and public telephones, sometimes with the use of a code name.

The Visy defence

Aside from denying that much of the conduct alleged by the ACCC ever occurred, Visy also maintained that its communications with Amcor executives were for the purpose of ’camouflage’ and to gain market intelligence. In effect, Visy sought to argue that, if it had sought to engage Amcor in cartel conduct, it had only done so with a view to taking market share from Amcor.

Justice Heerey gave short shrift to this line of argument, referring to it in his judgment as Visy’s ‘John le Carre defence’, an obvious allusion to Visy’s claims of double-crossing and dirty deals.

Privilege fight

A significant challenge in the case came in early 2007, when Visy filed a motion contesting the ACCC’s claim to legal professional privilege in hundreds of documents created prior to the institution of proceedings in December 2005.

Visy’s case, in summary, was that litigation could not have been reasonably anticipated by the ACCC from 15 December 2004 (as claimed by the ACCC), but, rather, that litigation was only reasonably anticipated when the ACCC commissioners formally decided to institute proceedings in December 2005.

At first instance, Justice Heerey found for the ACCC on the following bases:

• Although only ACCC commissioners have the power to institute proceedings, anticipation of litigation must logically precede institution of proceedings. Accordingly, it does not follow that only ACCC commissioners may anticipate legal proceedings.
• The state of mind of senior, responsible supervisors on the case could be imputed as the state of mind of the ACCC for the purposes of anticipating litigation. That is, where litigation is reasonably anticipated by the person or persons within the ACCC who have been given primary responsibility for the running of the matter (including the creation of documents containing privileged communications), that will suffice to demonstrate that proceedings were reasonably anticipated for the purposes of maintaining a claim to legal professional privilege.

This decision was upheld on appeal to the Full Court of the Federal Court. Although leave to bring the appeal was not granted, Justices Moore, Weinberg and Lander provided detailed reasons which were substantially supportive of Justice Heerey’s decision.

Case preparation

With the ACCC’s claim for privilege upheld, the very substantial task of case preparation continued, including:

• interviewing scores of witnesses in every state of Australia
• preparing and filing 1,000 pages of detailed witness outlines in respect of 111 witnesses
• comprehensively reviewing the ACCC’s files for discovery purposes
• reviewing the nearly 130,000 documents produced for inspection by the respondents
• managing a one-million-page database of material
• dealing with complex confidentiality claims and stringent undertakings to the court
• briefing expert witnesses on four continents
• briefing a total of 22 barristers, including a team of 14 retained for the purposes of reviewing in detail the voluminous documentary and witness evidence in respect of every aspect of the pleadings.

Settlement negotiations and judgment

With a six-month trial set to begin in October 2007, and the possibility of viva voce evidence being led from over 120 witnesses, the parties entered into several weeks of delicate (and often frantic) settlement negotiations.

Following resolution of the Agreed Statement of Facts and consent orders, and the hearing of the parties on penalties, Justice Heerey ordered:

• a penalty of $36 million against Visy—the single largest penalty to date for a contravention of the Trade Practices Act 1974
• an additional $2 million in penalties, in total, against Mr Debney and Mr Carroll for their part in the conduct, bringing the total to a record $38 million—more than twice the amount ever imposed by the Federal Court in a single proceeding brought by the ACCC
• approximately 50 pages of declarations and injunctions against Visy, Mr Pratt, Mr Debney and Mr Carroll
• an order that Visy pay the ACCC’s costs (which are likely to exceed $5 million) and undertake a trade practices compliance program.

In his judgment, Justice Heerey noted that this cartel was run deliberately at the highest level in Visy, and that senior executives did not hesitate before engaging in this unlawful conduct. His Honour also noted that this conduct occurred despite the existence of a trade practices compliance manual, which ‘might as well have been written in Sanskrit’⁶ for all the notice that was taken of it.

Justice Heerey was sceptical as to the remorse of Mr Pratt, who admitted his knowledge of the cartel in the Agreed Statement of Facts yet attempted to revive Visy’s defence publicly by stating that the Visy did not appreciate the complexities of the Trade Practices Act and was in fact seeking to take advantage of Amcor. His Honour found that there was no doubt that Mr Pratt knew that the cartel, to which he gave his approval, was seriously unlawful.

As stated by Chairman Graeme Samuel at the press conference following the handing down of Justice Heerey’s judgment:

Visy knew what the Trade Practices Act was about.

The law against price fixing is not 'complex'. It is simple – don't do it.⁷

AGS lawyers, including Susan Pryde, Martin Lockett, David Ablett, Alice Crowe, Jessica Cleaver, Annamie Hale, Stefany Goldring, Emma O’Neill, James Forsaith and Roland Dillon provided advice and assisted in gathering evidence, document management, discovery, and all aspects of case management and trial preparation over the course of nearly three years.

The ACCC’s counsel included Peter Jopling QC, Chris Caleo SC, Simon Marks SC, Peter Gray, Jonathon Moore and Peter Wallis.

AGS’s Litigation Technology Solutions team, led by Matthew Eaton and Julian Lambert, provided seamless document management and information sharing solutions for a million-page database accessible from various locations in Australia.

 

For further information please contact:

Susan Pryde
Senior Executive Lawyer
T 03 9242 1426 F 03 9242 1496
susan.pryde@ags.gov.au

Martin Lockett
Senior Executive Lawyer
T 03 9242 1214 F 03 9242 1496
martin.lockett@ags.gov.au

 

Notes

1. Australian Competition and Consumer Commission Chairman, Mr Graeme Samuel, ‘Visy News Conference—Opening Statement’, 2 November 2007.
2. Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No. 3) [2007] FCA 1617 (2 November 2007).
3. At that time known as the ACCC Leniency Policy.
4. Australian Competition and Consumer Commission, 'ACCC welcomes record penalties against Visy: Calls for stronger cartel law', news release, 2 November 2007.
5. At [312].
6. At [320].
7. Australian Competition and Consumer Commission Chairman, Mr Graeme Samuel, ‘Visy News Conference—Opening Statement’, 2 November 2007.

Important: The material in Spotlight is provided as an early, interim view for general information only, and further analysis on the matter may be prepared by AGS. The material should not be relied upon for the purpose of a particular matter. Please contact AGS before any action or decision is taken on the basis of any of the material.

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Our Client Counsel practice

Simon Blake, Practice Manager, Client Counsel group

Our clients appreciate close contact with our lawyers, and at times feel a need to integrate them into their own office context. In response, we have arrangements in place for AGS outposted lawyers to work from a number of our clients’ premises.

Meeting differing client needs

These outposting arrangements vary widely. Clients sometimes require a single lawyer to work with them, or they may need an entire AGS team.

In other cases, clients seek a ‘trusted adviser’ to support them in-house for varying lengths of time, to provide advice on high-level projects, often those relating to new government initiatives that fall within their portfolios. In such instances, some of our most senior lawyers may be outposted, either singly or as a small expert team, to work on a discrete project or in a general counsel capacity.

Benefits for our clients

AGS has a long and successful history of providing lawyers to work with our clients in-house to manage their legal needs. With the depth of expertise in government law that these lawyers bring to the role, they rapidly gain an intimate understanding of the client’s particular organisational needs, culture, legislation and regulatory regimes while retaining the ability to provide objective legal advice.

All of our outposted lawyers also have direct access to the full range of legal knowledge, resources and IT support of AGS. This means they can contact some of Australia’s most experienced government lawyers at any time, providing further peace of mind for our clients.

What our clients say

‘We have had various AGS lawyers outposted to our organisation for the past three years. The outposted AGS lawyers have, without fail, understood the context in which we are working and provided extremely useful advice to assist us in achieving our outcomes.

Having AGS lawyers located with us meant that they were devoted to our work, always accessible and across the problems we were confronting on a day to day basis. Indeed, at times we have relied heavily on the outposted AGS lawyers to be key drivers in achieving outcomes.

We are also particularly impressed with the fact that the outposted AGS lawyers work as a team with their colleagues in central office to provide a comprehensive and highly reliable service. They have enabled us to do our business more easily.’

Drew Clarke, Head of Division, Energy and Environment Division, Department of Industry, Tourism and Resources

‘We have had AGS lawyers outposted to our Group for over two years. This has been invaluable in the process of developing, drafting, defending and interpreting the Work Choices legislation and, more recently, the Independent Contractors legislation.

Having AGS lawyers dedicated to our work and located with us means that they are always accessible, understand our day to day working environment, and the context of the policy issues and problems we are confronting. But they also have access to other lawyers in AGS whenever the need arises. Outposted AGS lawyers are able to quickly accommodate changing priorities and it is especially useful to have them on hand to help us frame responses to urgent matters.’

Natalie James, Chief Counsel, Workplace Relations Legal Group, Department of Employment and Workplace Relations

 

For further information about AGS’s Client Counsel practice, please see pages 27–29 of our 2006–2007 Annual Report.

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Water resources

Robert Orr PSM QC

Dr Genevieve Ebbeck

Robyn Briese

Water was a key legal and political issue at the time of Federation, and has re-emerged in recent years as a major policy issue for the Commonwealth.

AGS has been advising the Australian Government as it has developed its policies, institutional framework and legislation over the past few years aimed at achieving sustainable management of Australia’s water resources.

The Commonwealth Water Bill

Following a national water summit in February 2007, the Commonwealth, in consultation with states and territories, prepared a draft comprehensive Water Bill, which provided in particular for new, unified arrangements for the sustainable management of water resources in the Murray-Darling Basin, based on a referral of powers by the Basin states, and for national management of water information.

However, with only three of the four Basin states agreeing to the referral of powers, the Prime Minister announced on 24 July 2007 that the Australian Government would proceed with a Water Bill based on the Commonwealth’s existing constitutional powers. This Water Bill was introduced into the Australian Parliament on 8 August 2007.

AGS has provided advice and assistance to the Department of the Environment and Water Resources in relation to the Water Bill. In particular, AGS lawyers Robyn Briese and Genevieve Ebbeck worked in the department on this project, under the supervision of Robert Orr QC, providing assistance with understanding the relevant legal environment, including existing Australian water law and international and constitutional law principles, and with the development of the new legislative and intergovernmental regime.

 

For further information please contact:

Robert Orr PSM QC
Deputy General Counsel
T: 02 6253 7129 F: 02 6253 7304
robert.orr@ags.gov.au

Dr Genevieve Ebbeck
Senior General Counsel
T: 02 6274 1451 F: 02 6253 7304
genevieve.ebbeck@ags.gov.au

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AGS team helps with energy efficiency goals

Josephine Ziino, Senior Executive Lawyer and Team Leader of AGS’s Property and Leasing group, was responsible for the AGS input to this innovative project.

For the last three years an AGS team has been assisting the Australian Greenhouse Office to develop innovative Green Lease Schedules for inclusion in Commonwealth building leases.

These schedules, which are additional to the standard government building lease contract clauses, are aimed at increasing energy efficiency by creating mutual obligations for tenants and building owners.

Josephine Ziino, leader of the AGS team, played a prime role in creating this unique, cutting-edge suite of documents comprising the lease schedules, comprehensive guidance notes and a supporting handbook.

These Green Lease Schedules are an important component of the Australian Government’s Minimum Energy Performance Standards, which form part of the 2006 Energy Efficiency In Government Operations Policy. They emphasise mutual contractual lease obligations to achieve energy efficiency targets in Commonwealth-leased buildings, and focus on remedial action rather than litigation to achieve outcomes. They provide greater consistency across government, with flexibility to include other sustainability outcomes such as water conservation and waste reduction.

Australian Government agencies occupy almost 2.6 million square metres of office accommodation around Australia, and government leadership in this area is expected to encourage market acceptance of this approach. Increased energy efficiency in buildings will reduce Australia’s total energy consumption and greenhouse gas emissions. Energy management will also lead to significant savings and improvements in the cost-effectiveness of government operations.

Australia is gaining recognition as a world leader in this area, with this energy policy and associated lease documents generating significant overseas interest.

 

For further information please contact:

Josephine Ziino
Senior Executive Lawyer
T 03 9242 1312 F 03 9242 1481
josephine.ziino@ags.gov.au

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AGS expert on ATO panel

Gordon Brysland

AGS is proud to announce that Gordon Brysland was recently appointed as an external member of the ATO Public Rulings Panel.

It is expected that Gordon will provide technical input on GST issues within the rulings program, particularly as they affect government.

Based in Canberra, Gordon joined AGS in 2003 as a Senior General Counsel after many years in private practice specialising in indirect taxes. He is now an eminent adviser to government agencies on GST questions, and has a strong reputation for fast turnaround on complex matters.

Gordon has published extensively in tax-related matters over a long period. He produces a comprehensive article each year for the Australian GST Journal dealing with all the GST cases over the preceding 12 months (obligatory reading for all GST practitioners). His latest one is called 'Brown to Tenvoc and beyond – the next 30 odd GST cases! – Part 2' (2006) 6 AGSTJ 69.

Gordon is a regular speaker at high-level GST conferences. He also founded and convenes a GST discussion group, active in Canberra since 2001, called the Reverse Charge Club.

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Damages claim for negligent advice given 34 years previously not statute-barred

Sarah Wright

Kim Bennett

The High Court, by a majority of 6:1, held that a damages claim for negligent advice on eligibility to join a Commonwealth defined benefit superannuation scheme, given some 34 years previously, was, in the circumstances, brought within time.

Background

The respondent, John Cornwell, commenced employment as a temporary employee in the Commonwealth’s Department of the Interior in 1962, as a spray painter at the Canberra bus depot. Mr Cornwell claimed that in July 1965 his (deceased) manager negligently advised him that he was not eligible to join the Commonwealth Superannuation Fund established under the Superannuation Act 1922 (the Fund).

The ACT courts below ruled in Mr Cornwell’s favour, holding that the negligent advice caused him to refrain from commencing contributions to the Fund in 1965 or 1966.

Mr Cornwell only became a member of the Commonwealth Superannuation Scheme (the CSS) established under the Superannuation Act 1976 (Cth) in 1987, when his employment was reclassified as permanent. He retired from Commonwealth employment on 31 December 1994.

Mr Cornwell commenced proceedings against the Commonwealth on 16 November 1999, some 34 years after the negligent advice.

The Commonwealth pleaded that Mr Cornwell’s claim was barred by section 11 of the Limitations Act 1985 (ACT), as the action was commenced more than six years after the date on which the cause of action first accrued. The ACT courts rejected this defence.

The Commonwealth was granted special leave to appeal to the High Court on the question of the point at which loss was first sustained, such that time began to run for the purposes of the Limitation Act defence.

Summary of decision

An appeal by the Commonwealth to the High Court was dismissed by a 6:1 majority.

The majority agreed with the courts below that Mr Cornwell suffered no actual loss until his retirement. He had no entitlement to benefits under the Superannuation Act 1976 until he had satisfied any applicable statutory criteria for the payment of benefits in the CSS, such as ceasing to be an employee on or after attaining the specified ages of 55, 60 or 65 years. Entitlements under the Commonwealth’s defined benefit schemes are prospective only until the occurrence of a contingency. It is only then that an actual loss is sustained.

The majority rejected the proposition that Mr Cornwell had suffered either an actual loss prior to retirement, or the loss of a chance. Consequently, Mr Cornwell had six years from the date of his retirement to commence proceedings, and he had commenced proceedings within time.

The majority considered speculative the question of whether in 1976 Mr Cornwell would have been better or worse off had he invested the money he would otherwise have paid in contributions to the superannuation schemes. Their Honours considered that it would not have been possible to calculate Mr Cornwell’s loss at any time prior to retirement (or the happening of some other trigger for the payment of benefits).

Mr Cornwell’s damages remain to be assessed.

Dissenting judgment

In a strong dissent, Callinan J was of the view that Mr Cornwell had as at 1977, at the latest, suffered both an actual loss and the loss of a chance, stating that the Commonwealth had proved its case ‘beyond contradiction’. His Honour noted that it has never been the law that damage occurs only when the loss is ascertained or ascertainable. Courts regularly estimate damages on the basis of likelihood or probability. It was not only upon retirement, or the happening of the other relevant triggers (or contingencies) that Mr Cornwell became entitled to an ascertainable interest in the scheme. It was always open to Mr Cornwell from at least 1977 to prove the likelihood or otherwise of each of the relevant statutory contingencies, and the statute of limitations (the predecessor of section 11 of the Limitations Act 1985) ran from then, expiring well before the commencement of the current claim.

Implications

The precedent value of the High Court decision is that similar claims involving negligent advice by management about entitlements under the Commonwealth’s defined benefit superannuation schemes may be instituted within six years of the date of retirement (or other relevant statutory trigger), regardless of when the alleged advice was given. There remains, however, no positive general duty on the Commonwealth to advise employees of superannuation entitlements (as opposed to an obligation not to misadvise), and each individual claimant must prove all the elements of the cause of action in his or her particular circumstances.

The Department of Finance and Administration is currently considering how to process other claims and will provide further information to potential claimants in due course.

Text of the decision is available at:
http://www.austlii.edu.au/au/cases/cth/high_ct/2007/16.html

AGS lawyers acted for the Commonwealth in all stages of the litigation. The Commonwealth’s counsel included Kim Bennett, Special Counsel Litigation.

For further information please contact:

Sarah Wright
Senior Lawyer
T 02 6253 7285 F 02 6253 7381
sarah.wright@ags.gov.au

Kim Bennett
Special Counsel Litigation
T 02 6253 7404 F 02 6253 7381
kim.bennett@ags.gov.au

Important: The material in this note is provided to clients as an early, interim view for general information only, and further analysis on the matter may be prepared by AGS. The material should not be relied upon for the purpose of a particular matter. Please contact AGS before any action or decision is taken on the basis of any of the material.

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Appointment of two Commonwealth Queen’s Counsel

David Bennett QC

Tom Howe QC

Attorney-General Philip Ruddock has announced the appointment of AGS Deputy Government Solicitor David Bennett and Chief Counsel Litigation Tom Howe as Commonwealth Queen’s Counsel.

In announcing the appointments, Mr Ruddock drew attention to ‘their outstanding abilities and expertise in their respective fields of Commonwealth law’. CEO of the Australian Government Solicitor, Rayne de Gruchy, has congratulated David and Tom on behalf of all of their AGS colleagues. ‘It is wonderful to see this significant recognition of their professionalism and expertise,’ she said.

David Bennett QC

David Bennett has been involved in Commonwealth advising work for 26 years, and has led AGS’s Constitutional Litigation practice for the last 15 years. Since 1992 he has been directly involved in over 300 constitutional cases for the Commonwealth, including nearly all major constitutional cases in the High Court of Australia in that period and a number of significant cases in other superior courts around Australia. Among these were New South Wales v Commonwealth (Work Choices), Western Australia v Commonwealth (Native Title Act case) and Lange v Australian Broadcasting Corporation (implied freedom of political communication). As a result he has made a significant and enduring contribution to the development of Australian constitutional law, helping to ensure that the Commonwealth’s submissions present a coherent and principled view of the Constitution. He provides expert counsel to people across government who need access to constitutional law expertise, as well as to AGS lawyers.

Tom Howe QC

For the last 20 years at AGS, Tom Howe has concentrated on litigation and advocacy work. He was appointed AGS’s Chief Counsel Litigation in 2002. He has appeared as counsel for the Commonwealth in many key cases before the High Court and other Australian courts and tribunals including the Federal Court, the Supreme Courts of the states and territories, and the Administrative Appeals Tribunal. He has also advised and appeared for the Commonwealth in various inquiries and commissions. Tom has made an extraordinary contribution to the delivery of a principled and cohesive litigation service to the Commonwealth. He assists relevant departments and agencies in consultations on the broader implications for them, and the Commonwealth as a whole, of available options and arguments.

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North Head legal title transfer to the Commonwealth

Mark Sheridan – legal adviser

In January 2007 the Commonwealth and subsequently the Sydney Harbour Federation Trust secured legal title to the 72-hectare former School of Artillery site at North Head from the State of New South Wales. The site on the headland at the entrance to Sydney Harbour is a significant landmark with a unique ecology and a rich cultural and military past.

Mark Sheridan, a senior lawyer with the AGS Sydney office, advised the Sydney Harbour Federation Trust on the arrangements leading up to the transfer and was instrumental in negotiating and documenting the terms of the transfer and a tripartite agreement between the Sydney Harbour Federation Trust, the Commonwealth and the State of New South Wales for the future management of North Head.

The former School of Artillery at North Head

The successful completion of this matter required a high degree of cooperation between the NSW Government, the Commonwealth and the Sydney Harbour Federation Trust. It required the identification of each party’s concerns and the development and documentation of contractual arrangements that addressed these concerns.

Click on the link to read the ministerial media statement entitled 'Wildlife sanctuary planned for Sydney's North Head'.

Cliffs at North Head	The handover: (left to right) NSW Environment Minister, Bob Debus, Minister for Health and Ageing and Member for Warringah,Tony Abbott, and Chairman of the Sydney Harbour Federation Trust, Kevin McCann.

Photos by permission of the Sydney Harbour Federation Trust

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Part two of the Spotlight archive

 

© Australian Government Solicitor