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  • Free speech denied in the High Court of Australia in Bernard Gaynor case

    Bernard Gaynor case - Free speech denied in the High Court of Australia

    Last month, Australia’s highest court refused to hear an appeal brought by conservative activist Bernard Gaynor. The reservist had his commission with the army terminated in 2013 for provocative public comments, and has since been engaged in a legal battle with the Australian Defence Force. Gaynor won in the Federal Court, lost in the Full Federal Court, and with the High Court declining special leave to appeal, the one-time Senate candidate’s litigious crusade is now over.

    Some might view this latest development in a positive light – Gaynor’s political views are deeply offensive to certain sectors of society. Prior to his termination, he tweeted: “I wouldn’t let a gay person teach my children and I am not afraid to say it”; published a press release on “Defence’s gender-bending preoccupation” and issued another entitled “Government and Defence blinded on Islam”. More recently, Gaynor lobbied to remove an ADF imam and campaigned against halal certification. His comments often evoke One Nation senator Pauline Hanson, whose position on immigration he has endorsed.

    But the High Court’s refusal to even consider an appeal from Gaynor should be deeply troubling, regardless of your political persuasion. The Full Federal Court finding that the ADF did not impermissibly encroach on Gaynor’s constitutionally protected free speech has broader ramifications. They may be well-worn to the point of cliché, but the words of English writer Evelyn Beatrice Hall are apt. “I disapprove of what you say,” she mused in 1906, “but I will defend to the death your right to say it.”

    To elucidate the nuances of this topic, several preliminary observations are necessary. Firstly, Australians do not enjoy an American-style constitutional right to free speech; we have no First Amendment. But 25 years ago, the High Court “discovered” in the Constitution an implied protection for political communication. This, the judges argued, was a necessary implication from the system of representative government established by our founding document.

    Yet such judicial activism created a shield, not a sword. The implied freedom has been consistently conceptualised as a limitation on legislative power, rather than an individually enforceable right. It was on this ground that the Full Federal Court accepted the ADF’s appeal: an error from the primary judge supposedly “led his Honour to look at [Gaynor’s] constitutional argument through an incorrect prism”.

    Finally, that political communication may be deeply offensive does not lessen the protection it is afforded. “History,” a High Court judge once wrote, “teaches that abuse and invective are an inevitable part of political discourse.”

    With these points in mind, the High Court’s disinclination to involve itself in the Gaynor case becomes all the more problematic. The comments that led to Gaynor’s termination were made while he “was not on duty, not in uniform and not doing anything connected with the ADF except criticising it and certain of its members”.

    Similarities with the public sector employment context are striking. Earlier this month the Australian Public Service Commission published new guidance on social media use by public servants, continuing its attempt to limit the participation of government employees in political debate. The Full Federal Court’s decision against Gaynor buttresses these efforts.

    In both contexts, the government is prosecuting legitimate objectives. The ADF is implementing a long-overdue process of cultural change within the Australian military, reform to which Gaynor was stridently opposed; the effectiveness of public servants depends on them acting impartially, and the APSC’s guidance is aimed at protecting that impartiality. But the dangers of silencing dissenting voices, when expressed as private opinion, are self-evident in a democratic society. Striking the right balance may not be easy, but it is certainly a task within the High Court’s remit.

    The drawbacks with the status quo are demonstrated through a simple counterfactual: what if Gaynor had instead vocally praised the ADF’s approach? He would still be an army reservist. Indeed, this is what the APSC wants of public servants – its guidance stressed “this doesn’t stop you making a positive comment on social media about your agency.” But the contest of ideas – the Miltonian concept underlying much of the philosophical grounding for free speech – becomes moot if only one side can speak. Such “content-based” restrictions on expression should be subject to exacting scrutiny.

    Whether we agree with their views or not, every member of Australian society should be able to engage in political debate without fear of retribution by the state. That includes public servants and those enlisted in the armed forces. In refusing to hear Gaynor’s appeal, the High Court has missed a significant opportunity to protect freedom of expression in this country. Our democracy is poorer for this omission.

    The last word should go to the first instance judge in this lengthy saga, Justice Robert Buchanan. ”[Gaynor’s] commission was terminated,” Buchanan concluded, “because of the publication of his private views about political matters.” Last month, the High Court failed to appreciate the deeply troubling implications of that fact.

    Written by John Wilson, managing legal director of Bradley Allen Love Lawyers and Kieran Pender, law clerk.

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  • Government hypocrisy on display again in the Fair Work Commission

    Government hypocrisy on display again in the Fair Work Commission

    A recent judgment has tipped the scales even further to the government’s advantage against public servants.

    The federal government, it has been said in the litigation context, is a “behemoth”. Public servants who take on the might of the bureaucracy in employment disputes have always faced an uphill battle. The government has practically unlimited resources and its pick of legal talent; employees often have neither. However, in the past this stark inequality was partially alleviated by a requirement in the Fair Work Act that parties must seek permission before they can be represented by lawyers.

    Following Gibbens v Commonwealth of Australia, public servants no longer have even this minor protection. In July, the Fair Work Commission rejected an appeal against a decision which gave lawyers at the Australian Government Solicitor the right to appear for the government without permission.

    The relevant legislation provides an automatic right of appearance for lawyers who are employees of a party. But, so appellant Gregory Gibbens argued, lawyers of the AGS hold a distinct role: the AGS is a government legal practice that works across departments, whereas the exception is aimed at in-house lawyers. The Full Bench disagreed: “AGS lawyers are … employees of the respondent (that is, the Commonwealth) engaged by the Secretary of the Attorney-General’s department to work in that department.” Accordingly, post-Gibbens, the AGS can appear without leave before the Fair Work Commission, while public servants require permission to have legal representation.

    While the legislative interpretation in Gibbens may be correct on a strictly textual view, it is entirely contrary to the Fair Work Act’s policy intention. The explanatory memorandum stated that the commission would “move away from formal, adversarial processes … There will also be a higher bar set for representation.” Tellingly, it continued: “Permission for representation will only be granted to parties (including the minister) where it would enable the matter to be dealt with more efficiently or fairly” (emphasis added).

    Moreover, the Gibbens precedent, which the government has since relied upon in other matters, contradicts the position departments have taken in other contexts. In a 2004 High Court case, the Department of Immigration argued that the AGS was not “the Commonwealth” for the purposes of recovering legal fees. Justice William Gummow agreed. While that judgment was made when the AGS was a Commonwealth authority, and it has since been subsumed within the Attorney General’s department, this is seemingly a distinction without a difference.

    The government’s approach to this issue continues a trend of self-serving inconsistency – some might even say hypocrisy – when it comes to workplace relations. Two other examples are instructive.

    Judges have long adopted the view that the federal government and its myriad departments form one legal entity. The High Court held in 1920 that “the Crown”, or the executive branch, “is one and indivisible”. The bench continued: “Elementary as that statement appears, it is essential to recall it, because its truth and its force have been overlooked.”

    In all but name, the government often engages in pattern bargaining during the enterprise bargaining process – seeking common terms for distinct enterprise agreements across multiple agencies – which is illegal under the Fair Work Act. This is permissible, they say, because the departments are not distinct employers but all part of the Commonwealth of Australia.

    But when a dismissed public servant pursues reinstatement in the Fair Work Commission, agencies invariably resist on the grounds that doing so would be disruptive to the workplace. If the Commonwealth is just one legal entity, why can’t the unfairly dismissed public servant be reinstated to another department? This issue has arisen in the Fair Work Commission on occasion, and there are no prizes for guessing the position adopted by the Commonwealth when the shoe is on the other foot.

    Former Canberra-based Fair Work Commissioner Barbara Deegan was frank about this contradiction in an interview with Workplace Reviewfollowing her retirement. “The bargaining framework does sit uncomfortably with the prohibition on pattern bargaining. Of course in a formal sense there is no inconsistency. The bargaining framework only applies to a single employer – the Commonwealth of Australia. But then in other contexts, when it is suggested that the Commonwealth is a single employer, the response is that under the Public Service Act each agency head is a separate employer or exercises all the powers of an employer. So there is a very good argument that the Commonwealth can’t have it both ways”.

    Another area of inconsistency involves the APS’ reach into the private lives of public servant. I have written repeatedly about the government’s overreach in this field, and controversy was sparked again last month when the Australian Public Service Commission sought to regulate public servants’ “liking” of Facebook posts.

    This expansive interpretation of the Code of Conduct’s scope was highlighted by one passage. The APSC instructed: “Your capacity to affect the reputation of your agency and the APS does not stop when you leave the office. The comments you make after hours can make people question your ability to be impartial, respectful and professional when you are at work. APS employees are required by law to uphold the APS Values at all times.” Political opinion is not the only area where the APS has sought to intrude into the private lives of employees.

    Yet when an employee injures themselves outside of the office (but still in a workplace context), the APS has sought to resile from its workers’ compensation obligations. Comcare famously fought all the way to the High Court (and won) in a case involving a public servant injured having sex while away from home on work travel. The comparison between Comcare v PVYW and free speech cases may be crude, but the point nevertheless remains: the government argues for an expansive definition of what falls within the scope of employment when it suits them, and a restrictive definition when it does not.

    Although so much might be expected from a private litigant, Australians are entitled to hold the Commonwealth to a higher standard. Indeed the Model Litigant Guidelines require the government to act “consistently in the handling of claims and litigation”. While it is not obliged to “fight with one hand behind its back in proceedings“, it should certainly not – to use Deegan’s language – be able to have it both ways.

    John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks Kieran Pender and James Macken for their help in preparing this article.

    First published in the Canberra Times.

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  • Loan Agreement - a Useful Tool for Asset Protection

    Loan Agreement - a Useful Tool for Asset Protection

    A properly documented loan agreement can be an effective tool to preserve family wealth.

    It is fairly common to find loans between family members and family entities, sometimes for very substantial sums of money. Often the terms of loans between family members are undocumented which can result in complications including complications arising as a result of the following:

    1) The terms of the advance being uncertain

    Funds advanced to family members that are not documented are uncertain. Questions that may arise with undocumented loans include.

    • What are the terms of repayment;
    • When are the funds repayable;
    • Is there any interest payable.

    2) Loans being construed as a gift to the recipient

    Undocumented loans can be construed as gifts to the recipient (particularly when it comes to family members, there exists a rebuttable presumption that funds advanced constitute a gift). Funds which are construed as gifts could mean they are vulnerable to attack in the event of a relationship breakdown or insolvency.

    It should be noted also that if the advance is construed as a gift that the executors do not have an inherent power to reduce a beneficiary’s share of an estate by the amount advanced.

    3) Loans being construed as one that is payable on demand

    Undocumented loans can be construed as being payable on demand.

    Loans that are payable on demand mean (i.e. continuously recoverable at all times) mean that the cause of action arise when the money is advanced. In other words, the time for recovery for the purposes of limitations law is from the time the loan is made, not from the time the demand is made. As a result, if a loan was made more than 6 years ago (the limitation period), it may be irrecoverable.

    Loan Agreement

    A properly documented Loan Agreement can prevent these complications from arising by:

    • Ensuring that the terms of the loan are made certain between the parties
    • Ensuring that there is no doubt that the advance of funds are construed as a loan and not a gift to the recipient. This will mean that the funds do not form part of the matrimonial property for the purposes of the Family Law Act, and are not within grasp of the trustee in bankruptcy or creditors and
    • That the cause of action for recovery of the debt does not expire prematurely.

    Terms of a Properly Documented Loan Agreement

    It is not enough that there is a document in place between the parties that is signed and dated. The more the loan is presented at arm’s length, the more it is likely to be construed as a “loan”. In other words, your loan agreement should aim to contain the following terms:

    • The amount of the loan;
    • Interest rates, if any;
    • The term of the loan.
    • How the loan is to be repaid (lump sum, instalments);
    • Method of repayment (cash, direct credit, bank cheque);
    • Security for the lender if required.

    A properly documented Loan Agreement is also a useful tool to incorporate as part of a succession plan when trying to maintain equality amongst beneficiaries. To discuss adding a loan agreement to your will, please contact us.

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  • Australia by Design - Mark Love - Kim Harvey School of Dance

    Australia by Design - ACT

    Australia by Design is an architectural show that showcases the top 10 architectural statements for the year in each state and territory in Australia.

    The show is hosted by Tim Horton, a renowned Australia Architect.

    Mark Love was chosen as a guest panelist, and had the pleasure of reviewing the Kim Harvey School of Dance by Clarke Keller Architects. This particular building also won the Art in Architecture Award at the 2016 Australian Capital Territory (ACT) Architecture Awards. The episode is available to watch below.

    Australia by Design – Episode 4

    The other episodes are available to watch here.

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  • Costs, compromise, Calderbanks

    Costs, compromise, and Calderbanks: Recent developments

    “The issue of costs is central to essentially all forms of legal practice.” — GE Dal Pont.

    It is a common (though perhaps dangerous) assumption that a successful party to litigation will obtain an order that the unsuccessful party pay their costs on a party/party basis.

    This is traditionally known as ‘costs following the event’, with the ‘party/ party’ component of a costs order usually amounting to about 70 per cent of the cost a party has actually incurred.

    However, the ACT Court of Appeal’s recent decision in Cooper v Singh provides a useful reminder that the awarding of costs is an entirely discretionary power that courts may exercise as they see fit.

    It follows that the expectations of a party (and their counsel) as cost may not align with the court’s view as to how its discretion should be exercised.

    Singh also highlights the complex relationship between Calderbank offers and Offers of Compromise, the latter a device created by the Court Procedure Rules 2006 (ACT) (“the Court Rules”).


    In Singh, the plaintiff was injured in a motor vehicle accident leading to myriad personal injuries. Prior to the matter being heard, the defendants made an offer to settle the case for $540,000 plus costs. The offer was stated to be pursuant to the principle in Calderbank v Calderbank. The effect of the Calderbank nature of the offer was that, should it not be accepted and the plaintiff fail to obtain an outcome better than $540,000, the defendants could seek an order that the plaintiff pay their costs on an indemnity basis from the date of the offer.

    Through this regime, while a plaintiff may enjoy some success in obtaining a judgment, if a defendant can demonstrate that costs were unreasonably incurred because of a plaintiff’s rejection of an offer which would have seen him or her better off overall, a Calderbank may provide costs protection for the defendant. At first instance in Singh, the plaintiff succeeded at hearing but only for $311,603 — a sum considerably less than the defendants’ Calderbank offer.

    With the offer having been made shortly before the commencement of the hearing, the defendants sought an order that their costs, essentially those of the hearing days, be paid by the plaintiff on a full indemnity basis.

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    First published in Ethos.

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