Dr Stephen Tully has made a presentation about recent developments in international criminal law and practice as relevant to Australian legal practitioners. Organised by Nyman Gibson Miralis, the Australian Defence Lawyers Alliance (ADLA) Conference for 2018 was held in Sydney on 23 March and topics included advocacy, Commonwealth sentencing, mental health and the media. Stephen’s presentation is available here.
On 23 January 2018 Dr Stephen Tully, together with Nicholas Poynder of Frederick Jordan Chambers, Laura Free of Victoria Legal Aid, David Burke of Lander and Rogers Lawyers and Nadine Darling from the Refugee Advice & Casework Service (RACS), conducted a workshop on the judicial review of fast track decision-making by the Immigration Assessment Authority. Attended by some 27 solicitors and barristers, the workshop was the final step in an online programme established in Victoria and now made available in NSW. The training complements a current initiative of RACS - Justice for Refugees, or J4R – which engages barristers to advise on refugee matters and undertake judicial review applications before the Federal Circuit Court of Australia.
Dr Christopher Ward SC with junior Philip Santucci has successfully represented European businessman Dr Benoy Berry in landmark fraud and Trade Practices litigation against former Reserve Bank of Australia subsidiary Securency (now known as CCL Secure Pty Ltd).
The Federal Court (Rares J) found that Securency and some of its officers had engaged in a “practiced deception” amounting to a “shabby fraud” as a result of which Dr Berry and his company were deceived into the early termination of an extremely valuable commercial contract involving the sale of polymer banknotes in Nigeria. The judgment, which also describes the conduct of Securency in relation to Nigerian governmental officials, reinforces the serious consequences for Australian companies that engage in deceptive business practices overseas.
Dr Stephen Tully of Chambers and Sally Hunt, Solicitor Director of Supra Legal, successfully overturned a decision of the Administrative Appeals Tribunal which rejected as late a merits review application lodged by their client concerning a decision of a delegate of the Minister for Immigration and Border Protection not to revoke a prior visa cancellation decision.
The Department of Immigration and Border Protection purported to notify the client of this decision in a letter which omitted certain information. The tribunal held that it lacked jurisdiction, and proceedings were commenced before the Federal Court of Australia.
The parties agreed to remit the tribunal’s decision for reconsideration because the client had not been correctly notified of the delegate’s decision as required by the Migration Act 1958 (Cth).
The Full Federal Court has strongly supported the mutual recognition of judgment provisions of the Trans-Tasman Proceedings Act. The Full Court upheld the registration of a significant money judgment obtained in New Zealand. The Appellant had been ‘debarred’ by an 'unless order' from participation in the original New Zealand proceedings. The Full Court rejected the argument that the New Zealand proceedings offended Australian public policy and procedural fairness requirements and upheld the underlying principle of reciprocal recognition of judgments from New Zealand. The Full Court found that New Zealand 'unless orders' were simply a form of peremptory order by which courts were able to control their processes. The Full Court also confirmed the jurisdiction of the Federal Court in relation to the enforcement of New Zealand judgments.
From the Federal Court of Australia:
PRIVATE INTERNATIONAL LAW – appeal from the dismissal by the primary judge of an application under s 72(1) of the Trans-Tasman Proceedings Act 2010 (Cth)to set aside the registration of a judgment of the High Court of New Zealand in relation to proceedings under the Property (Relationships) Act 1976 (NZ) – whether enforcement of judgment would be contrary to public policy in Australia
Mr Cominos acted for the appellant in an application to set aside a decision of the Football Federation of Australia (FFA) to ban the appellant from attending A-League and other FFA-sanctioned matches for a period of five years. The Football Independent Banning Advisory Committee (FIBAC), comprising Soulio J (chair), Ian Lloyd QC and Simon Mitchell, decided to set aside the 5 year ban.
Currently in Australia organ trafficking laws which can be found in Division 271 of the Criminal Code 1995 (Commonwealth) do not have extraterritorial effect. This means there are no provisions in Australian law to protect people from organ trafficking and organ tourism which occur overseas by Australians.
On 23 June 2017 The Human Rights Sub-Committee of the Parliament’s Joint Standing Committee on Foreign Affairs, Defence and Trade commenced an Inquiry into Human Organ Trafficking and Organ Transplant Tourism. The inquiry examines how the Australian legal system deters organ trafficking and what more can be done to prevent this offence from occurring both in Australia and internationally.
Madeleine Bridgett, Co-Chair of the Business and Human Rights Committee for the Australian Lawyers For Human Rights (ALHR), and Kerry Weste, Vice-President of the ALHR, made submissions to the Inquiry which can be read here.
Madeleine Bridgett was featured in today's Lawyers Weekly.
After almost four years and eight separate proceedings, the NSW Civil and Administrative Tribunal (NCAT) awarded sums of $260,000 and $240,000 for two women who were being evicted from their residential park due to a redevelopment of the land. In the initial proceedings, NCAT determined their compensation to be $85,000 & $62,000 respectively.
A significant issue in dispute involved the statutory construction of the compensatory regime and the elements to be included for valuation, which took the matter to the Supreme Court and the Court of Appeal. Whilst this issue was being resolved, the relevant legislation was amended to broaden and clarify the compensation scheme. The Residents went back to NCAT and successfully argued that they fell within the transitional arrangements for the new law. This set the scene for a test case on how the new provisions would apply in practice.
In the final proceedings NCAT agreed that compensation should be based on a valuation of the residents dwelling under the "Point Gourde" principle being that the dwellings were to be valued as if the park were to continue in operation, was in reasonable condition and had reasonable amenities.
Michelle McMahon appeared for the residents.
From ANU College of Law:
The ANU Centre for Commercial Law and Centre for International and Public Law are proud to announce a conference to mark the 40th anniversary of the establishment of the Federal Court of Australia. Current and former Federal Court Justices, and leading academics and practitioners will consider the Federal Court’s contribution to the development of Australian law.
Dr James Stellios will be co-presenting on the Friday morning with Justice John Griffiths on the Federal Court's contribution to Australian constitutional law. Dr Stellios will also chair a session on the Saturday, before delivering the closing remarks of the conference.
Dr Stephen Tully contributed a report on international legal developments within Australia over the past year for the American Bar Association’s Section of International Law annual publication Year in Review. Their report can be found in (2017) 51 International Legal Developments Year in Review: 2016 at 579-82.
Dr Stephen Tully worked pro bono with Liz Simpson, Ali Mojtahedi and Olivia Todhunter of the Immigration Advice and Rights Centre in FTYC v Minister for Immigration and Border Protection.
In December 2016, the Administrative Appeals Tribunal affirmed a decision to refuse to grant a protection visa to an applicant on character grounds, because she had a substantial criminal record and visa refusal was considered to be the preferable decision. The applicant was arrested upon her arrival into Australia in 2010, was convicted and sentenced, and was being held in immigration detention pending deportation.
However, Australia owed non-refoulement obligations to her under international law and she faced the prospect of indefinite detention. Following a hearing before the Federal Court of Australia in June, the parties agreed to remit this matter to the tribunal for reconsideration.
Truly a team effort by all involved with a fantastic outcome for a very deserving client.
New article by Dr Stephen Tully for the ANU Asia and the Pacific Policy Society Policy Forum:
Western countries like Australia face particular challenges when seeking to extradite individuals to China. Many countries are party to the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty. Under this treaty, it is unnecessary to prove that individuals “will” be sentenced to death; it is sufficient that there is “real risk” that an individual would face the death penalty. The United Nations (UN) Human Rights Committee requested Australia to protect individuals from removal to China without adequate assurances that they would not be executed. To enforce an individual’s return would constitute violations by Australia of that individual’s human rights.
Robert Angyal SC is the author of Chapter 13 in LexisNexis’ new book, Resolving Civil Disputes (ed. Michael Legg 2016). The chapter’s title is Advocacy at Mediation: An Oxymoron or an Essential Skill for the Modern Lawyer?
The book is available to purchase from LexisNexis here.
On 17 February 2017, Robert Angyal SC gave a presentation to the South Australian Law Society’s annual Forum, entitled Alternative Dispute Resolution is Dead. Long Live Alternative Dispute Resolution. The presentation discussed the profound implications of the fact that mediation has become the dominant means of resolution of civil disputes and suggested that, perhaps, going to Court should now be called “alternative dispute resolution”.
Mr Angyal is preparing a paper based on the presentation for publication.
6 St James Hall Senior Counsel Dr Christopher Ward SC recently advised the Philippines Commission for Human Rights on the legality of Philippines legislative proposals to reintroduce the death penalty in that country.
The collaborative results of that project, which was assisted by the Australian National University, are now available in the document: In Defense of the Right to Life: International Law and the Death Penalty in the Philippines.