Federal Court judgment of 8 July 2021 in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) gives the Morrison Government little comfort

“The parties do not dispute that human emissions of CO2 into the atmosphere are largely responsible for the warming of the Earth’s surface temperature since the Industrial Revolution. The Minister accepts that the Earth’s surface temperature is increasing and that humans are primarily responsible. She also accepts that average surface temperatures will likely continue to increase and Australia will experience more drought, sea level rises and extremes of heat, rainfall and fire-related weather. The Minister accepts that increases in temperature affect the environment, the economy and society and that the climate exacerbates inherent risks and introduces new risks in the context of heatwaves, droughts, bushfires, floods and tropical cyclones all being part of the Australian climate experience.

The Minister accepts that the projected effects of climate change depend upon the extent of greenhouse gases emitted globally in coming years. The applicants presented unchallenged scientific evidence on the future trajectory of global average surface temperatures. The evidence was largely based on the climate change modelling of the Intergovernmental Panel on Climate Change and more recent assessments made by Professor William Steffen, an eminent specialist in climate science.” [BROMBERG J, 27 MAY 2021, MELBOURNE, excerpt from SUMMARY supplied for Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 (27 May 2021)]

“It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the Children. As Australian adults know their country, Australia will be lost and the World as we know it gone as well. The physical environment will be harsher, far more extreme and devastatingly brutal when angry. As for the human experience – quality of life, opportunities to partake in nature’s treasures, the capacity to grow and prosper – all will be greatly diminished. Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain. None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next.

To say that the Children are vulnerable is to understate their predicament. However, it is not vulnerability in the abstract which is relevant for determining whether a duty of care is owed to them by the Minister. Their vulnerability must be connected to their relation with the Minister or their reliance upon the Minister: Stuart at [134] (Crennan and Kiefel JJ). And it is.” [Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774 (8 July 2021, Judgment, excerpt])

In its 8 July 2021 judgment in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment (No 2) [2021] FCA 774 (8 July 2021) the Federal Court did not accept the the Minister’s contention that the Court should order that the proceeding not continue as a representative proceeding at all - instead ordering that The proceeding not continue as a representative proceeding in respect of persons who were under 18 years of age and not ordinarily resident in Australia at the time of the commencement of this proceeding. The Court also did not accept the Minister’s argument with regard to costs and ordered The Minister pay the applicants’ costs of the proceeding.

This second judgment although it now excludes unnamed Other Represented Children from the representative proceeding specifically allows those eight Australian teenagers named as applicants to remain as applicants in the proceeding: I have determined that the proceeding should continue as a representative proceeding in relation to the Represented Children.

BACKGROUND

Allens, Australia, retrieved 9 July 2021:

In August 2020, the NSW Independent Planning Commission granted development consent for the extension of the Vickery Coal Project (the project) in northern NSW under the Environmental Planning and Assessment Act 1979 (NSW). As the project is likely to have impacts on federally listed threatened species and water resources, it also requires approval from the Federal Minister for the Environment (the Minister) under the EPBC Act.

The project, if approved, will involve the extraction of an additional 33 million tonnes of coal over the life of the mine. The combustion of this additional coal will result in the emission of approximately 100 million tonnes of CO2.

In Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560, eight Australian children brought an action in negligence against the Minister, seeking a declaration that she owed them — and children around Australia — a duty to exercise her powers under the EPBC Act with reasonable care so as not to cause the children harm. They contended that the project would contribute to climate change, and consequently increase the risk of climate change-related harm to the applicants, including mental and physical injury, damage to property, and economic loss.

The claimants also sought an injunction restraining the Minister from committing an apprehended breach of that duty — that apprehended breach being the approval of the project.

The decision

The court found that the Minister owes the applicants a duty to take reasonable care when considering whether to approve the project under the EPBC Act.

In determining that the Minister owes a duty of care, the court held:

• The environmental impacts of increasing global surface temperatures, including greater incidence and severity of heatwaves and bushfires, would expose the applicants and the representative class to a real risk of death and personal injury.

• While the project would cause a 'tiny' increase to global average surface temperatures, that increase was measurable and therefore the risk of harm 'real', and not far-fetched or fanciful.

• A reasonable person in the Minister's position would foresee that the applicants would face an increased risk of injury brought about by climate change that would flow from the contribution to increased atmospheric CO2 brought about by the project.

• The Minister's knowledge of the risk of harm and her control over the source of harm strongly supported finding a duty of care.

• While some factors weighed against a duty being recognised, in totality the salient features of the relationship between the Minister and the applicants favoured the recognition of a duty of care.

Despite recognising the duty of care, the court declined to grant an injunction preventing the Minister from approving the project. Ultimately, the court was not satisfied that the applicants had demonstrated the Minister would breach her duty of care, and said that, instead, it would be more appropriate to grant any relief once a decision had been made. The court did not accept the applicants' contention that an approval of the project would inevitably constitute a breach of duty, noting that the Minister's competing or conflicting responsibilities could influence a reasonable response to the foreseeable harm. Such a reasonable response could include conditions on any approval under the EPBC Act.

Implications

While the applicants were not successful in injuncting the Minister from granting the approval, the decision to recognise this novel duty of care could have significant consequences. This is the first time in Australia that a court has recognised a duty of care owed to children by a Minister exercising powers under any statutory environment or planning regime.

The recognition of a duty of care in connection with climate change-related harm under the EPBC Act framework is noteworthy, given the matters protected by the EPBC Act do not extend to greenhouse gas emissions or climate change. While protection is afforded to various environmental matters, including listed species and habitats, the health and wellbeing of human beings is not a protected aspect of the environment that would trigger the need for approval under the EPBC Act. However, by reference to the broader statutory scheme (including reference to the principle of inter-generational equity) the court noted the Act's object is to protect the interests of people and, in particular, future generations of people, in the environment — rather than the environment itself. Because this duty of care was not found by reference to the particular protected matters in the EPBC Act and instead within the broader statutory scheme, the interpretive approach may translate more readily to other pieces of environmental legislation at a state level.

This decision may also impact the grant of approvals under the EPBC Act. The court noted that in deciding whether to approve the project, 'a well-advised and responsible Minister would take notice of those matters', referring to the now-established duty of care owed to the applicants. Those in charge of approving carbon intensive projects may now be more alive to climate change-related issues and place greater weight on those risks when making decisions.

Court of Appeal rejects Adani's application to search an activist's home & Supreme Court orders Adani to pay $106.8 million to four companies - in part due to its own "serious dishonesty"

ABC News, 27 August 2020:

Mining company Adani secretly sought to raid the Brisbane home of an activist to seize evidence but failed twice, court documents have revealed.

Adani and its Carmichael Rail Network applied for a search order, known as an Anton Piller order, against Benjamin Pennings in June this year.

It claimed Mr Pennings had possession of "confidential information on a computer at his home" which was being used in a concerted campaign of "intimidation and conspiracy" against the Galilee Basin coal project.

As part of the application, Adani claimed Mr Pennings had information to which only company executives and other select staff and contractors had access.

Anton Piller orders are searches carried out without notice to the defendant to ensure that evidence cannot be destroyed and is preserved to be used in judicial proceedings.

Adani's court application and subsequent appeal in July were also heard ex parte, meaning they were both heard without notice.

Adani has described Mr Pennings as the "principal" of a group of political activists called the "Galilee Blockade", whose objective is to prevent the development of the mine and railway.

In rejecting Adani and Carmichael Rail Network's appeal last week, the Court of Appeal ruled the evidence was "wholly inadequate to justify the order sought".

"The appellants have failed to establish the likelihood that Mr Pennings has any confidential information or that he has any confidential information stored at his home," the Court of Appeal judges said.

"They have failed to establish the likelihood that the use of any confidential information has resulted in any loss."

The Court of Appeal also raised concerns about the impact of a search order could have had on Mr Pennings' partner and children.

"Surely, to permit a search of a defendant's house, with the humiliation and family distress which that might involve, lies at the outer boundary of the discretion," the Court of Appeal judges said.

"This is because, for reasons that anyone can understand, the 'shock, anger, confusion' and the 'sense of violation and powerlessness' will be much greater in such a case and may be suffered not only by someone who is proved in due course to be a wrongdoer, but by entirely innocent parties as well."……

Read the full article here.

BACKGROUND

Mining Pty Ltd & Anor v Pennings [2020] QCA 169 (17 August 2020)

The Adani Group appears to have been the applicant or been named as a respondent in around seven court cases between 2013 and 2020.

This is the latest:

Adani Abbot Point Terminal Pty Ltd v Lake Vermont Resources Pty Ltd & Ors [2020] QSC 260 – 26 August 2020. Adani ordered to pay $106.8 million.

Excerpts from the judgment:

“[197] The applicant’s conduct was deliberate, not just heedless or indifferent ⁸¹ to the position of the remaining users. The applicant was fully cognisant as to the effect its behaviour would have in increasing the fixed costs to the remaining users. It desired that effect in order to advantage itself financially. That is, to achieve a gain for itself, the applicant engaged in calculated behaviour to the disadvantage of the respondents.⁸² This is evident in the timing and structure of the QCPL transactions.”

“[203] The applicant’s behaviour in attempting to disguise or camouflage the true basis of its dealings with QCPL involved dishonesty – [117] ff and [122], and so far as this proceeding is concerned, involved serious dishonesty – [98] and [121].”

United Australia Party founder & former MP for Fairfax Clive Palmer facing charges which might lead to 12 years imprisonment

Australian Securities and Investments Commission (ASIC), media release, 17 July 2020:

20-163MR Clive Palmer charged over breaches of directors’ duties and fraud 

Following an ASIC investigation, Mr Clive Frederick Palmer, 66 of Broadbeach Waters in Queensland, has been charged with two counts of contravening section 184(2)(a) of the Corporations Act 2001 (Act) - dishonest use of position as a director and two counts of contravening section 408C(1)(d) of the Criminal Code Act 1899 (Qld) – fraud by dishonestly gaining a benefit or advantage. 

ASIC alleges that between 5 August 2013 and 5 September 2013, Mr Palmer dishonestly obtained a benefit or advantage for Cosmo Developments Pty Ltd and/or the Palmer United Party (PUP) and others by authorising the transfer of $10,000,000 contrary to the purpose for which the funds were being held. It is alleged that he dishonestly used his position as a director of Mineralogy Pty Ltd (Mineralogy), a mining company owned by him, in obtaining that advantage. 

ASIC also alleges that, between 31 August 2013 and 3 September 2013, Mr Palmer dishonestly obtained a benefit or advantage for Media Circus Network Pty Ltd and/or PUP by authorising the transfer of $2,167,065.60 contrary to the purpose for which the funds were being held. It is alleged that Mr Palmer dishonestly used his position as a director of Mineralogy in obtaining that advantage. 

The maximum penalty for an offence under section 184(2) of the Act is $340,000 or imprisonment for five years, or both. 

The maximum penalty for an offence under section 408C of the Code is five years’ imprisonment. However, if circumstances of aggravation are established the maximum penalty at the time the offences are alleged to have occurred is increased to 12 years’ imprisonment. 

The matter was first mentioned in the Brisbane Magistrates Court on 20 March 2020, at which time the matter was adjourned for further mention on 17 July 2020. On 17 July 2020 the matter was adjourned until 28 August 2020. 

The matter is being prosecuted by the Commonwealth Director of Public Prosecutions.

When a powerful 77 year-old legal figure is finally revealed as a serial sexual harasser in the workplace

The Sydney Morning Herald,  22 June 2020:

Justice Dyson Heydon arrives at the Royal Commission into trade unions in 2015 in Sydney,CREDIT: BEN RUSHTON

Former High Court Justice Dyson Heydon, one of the nation’s pre-eminent legal minds, sexually harassed six young female associates, an independent inquiry by the court has found.

A Herald investigation has also uncovered further allegations from senior legal figures of predatory behaviour by Mr Heydon, including a judge who claims that he indecently assaulted her. The women claim that Mr Heydon’s status as one of the most powerful men in the country protected him from being held to account for his actions.

The High Court inquiry was prompted by two of the judge’s former associates notifying the Chief Justice Susan Kiefel in March 2019 that they had been sexually harassed by Mr Heydon.

“We are ashamed that this could have happened at the High Court of Australia,” said Chief Justice Kiefel in a statement. She confirmed that the lengthy investigation found that “the Honourable Dyson Heydon, AC, QC” harassed six former staff members.

“The findings are of extreme concern to me, my fellow justices, our chief executive and the staff of the court,” said the Chief Justice.

Chief Justice Kiefel has personally apologised to the six women, five of them Mr Heydon’s associates, saying “their accounts of their experiences at the time have been believed”.

Dyson Heydon was on the High Court bench from 2003-13 and in 2014 was appointed by then Prime Minister Tony Abbott to run the royal commission into trade union governance and corruption.

Mr Heydon denied the claims via his lawyers Speed and Stracey who issued a statement.....

“Dyson Heydon was one of the most powerful men in the country,” said Josh Bornstein, the women’s lawyer and a principal with law firm Maurice Blackburn in Melbourne. “As the independent investigation makes clear, he is also a sex pest. At the same time he was dispensing justice in the highest court in Australia’s legal system, he was [engaged in] sexual harassment.”

Vivienne Thom, the former Inspector-General of Intelligence and Security, interviewed a dozen witnesses, including five former associates. Dr Thom’s report found that the evidence “demonstrates a tendency by Mr Heydon to engage in a pattern of conduct of sexual harassment” which included unwelcome touching, attempting to kiss the women and taking them into his bedroom.

A Herald investigation can reveal that Mr Heydon’s predatory behaviour was an “open secret” in legal and judicial circles. Not only did he prey on his young associates during his decade on the High Court until his mandatory retirement at 70 in 2013, other females in the profession suffered at his hands.....

Read the full article here.

The Guardian, 22 June 2020:

“At the time that this sexual harassment occurred, Dyson Heydon was in his 60s, a conservative judge, a prominent Catholic and a married man,” Bornstein said. 

“The women he employed were in their early 20s and often straight out of university. He was one of the most powerful men in the country, who could make or break their future careers in the law. 

Bornstein said there was an “extreme power imbalance” between Heydon and the young women. 

There was no clear avenue for women to complain about such conduct, he said. 

“The fear of his power and influence meant that the women did not feel able to come forward until recently,” he said.

STATEMENT BY THE HON SUSAN MEFEL AC,CHIEF JUSTICE OF THE HIGH COURT OF AUSTRALIA (PDF)

UPDATE 

The Sydney Morning Herald, 24 June 2020: 

The Herald and The Age can now reveal claims about his behaviour extend to Britain where he is the subject of allegations, including inappropriate touching. 

Following his mandatory retirement from the High Court in 2013 aged 70, Dyson Heydon sought out a teaching position at the prestigious English university, where he had studied on a Rhodes scholarship in 1964. 

His three-year appointment at the Faculty of Law was greeted with excitement within the university, according to documents released under freedom of information laws...... 

Mr Heydon's lectures were scheduled to occur early each year from 2014 to 2016 inclusive. 

However, allegations about his behaviour would cast a dark shadow over Mr Heydon’s tenure. 

"My first introduction to him was that all the Australian law students at Oxford called him 'Dirty Dyson', that seemed to be the moniker he had widely," one former student said. 

One of Mr Heydon’s postgraduate students, whom the Herald and The Age have chosen not to name, was so upset and angry about Mr Heydon’s harassment of her in the Bodleian Library, that she complained to the university. 

The university decided not to renew Mr Heydon’s visiting professorship. In heavily redacted documents released to the Herald and The Age under FOI, the reason for the university's decision was not apparent. 

"The Personnel Committee has already taken a decision that Dyson Heydon should not be renewed," stated Oxford Law Faculty Dean Anne Davies in an email dated June 1, 2016. "We have written to tell him this."

The Sydney Morning Herald, 24 June 2020:

The ACT's Director of Public Prosecutions has recommended the Australian Federal Police investigate former High Court justice Dyson Heydon over allegations of sexual harassment following a damning investigation commissioned by the court.....

The Sydney Morning Herald, 25 June 2020:

Ms Coutts told the investigator she was worried that Justice Heydon "who was then a large and strong man" may try to harass her friend again. 

Ms Coutts told the investigator called in to conduct the independent inquiry, Dr Vivienne Thom, that she informed Justice McHugh of his colleague's alleged behaviour. 

According to the report, Justice McHugh allegedly replied: "Well Sharona, it's not easy to shock me these days but you have just truly shocked me." 

Ms Coutts said the following day, after further discussions with Justice McHugh, that he left the chambers, returning later to tell her: "I've told the Chief. It's his court. He has to deal with this." 

It is not known what steps were taken by then Chief Justice Murray Gleeson about Justice Heydon's behaviour. Mr McHugh declined to participate in the investigation. When contacted by the Herald and The Age, Mr Gleeson, now retired from the bench, said: "I am unwilling to comment". Mr McHugh, also retired from the bench, did not respond to emails and phone messages..... 

A group of the most senior female barristers in NSW have lodged a complaint with the Office of the Legal Services Commissioner, following allegations of sexual harassment and indecent assault against Mr Heydon. The 14 silks took their action following the revelation in the Herald that a High Court investigation found Mr Heydon had sexually harassed six former associates of the court. None of the female barristers making the complaint allege they themselves were the subject of inappropriate behaviour by Mr Heydon. 

The statutory body, which acts as the professional watchdog, has powers to investigate Mr Heydon's alleged misconduct. It can determine whether Mr Heydon is a "fit and proper person" under the official admission rules for the legal profession. It can also take disciplinary action against a barrister, or commence disciplinary proceedings in the NSW Civil and Administrative Tribunal. In the most serious cases, a practitioner can be disbarred. 

Complaints to the Office of the Legal Services Commissioner are confidential. 

The move came as the NSW Bar Association president Tim Game SC released a strongly-worded message warning "barristers who engage in sexual harassment can be investigated and disciplined for professional misconduct".

For years mainstream media have used a presence on the Facebook platform as an easy way to extend digital audience reach. What could possibly go wrong?

There are reputedly est. 15 to 16 million Australians with active Facebook accounts and many in the mainstream media avails themselves of the digital audience this represents by maintaining their own Facebook pages on which they publish newspaper articles with an accompanying comment, image and headline.

News Corp and Nine just found out the hard way that having unmoderated Facebook pages is never a wise choice.

In July 2017 then 20 year-old Dylan Voller commenced defamation proceedings against three media companies owned by News Corp and Nine Entertainment.

This is a news article abot the third and most recent judgment rendered in the ongoing legal saga.....

ABC News, 1 June 2020:

Three Australian media outlets have lost an appeal about a key ruling holding them responsible for the alleged defamation on Facebook of former Don Dale Youth Detention Centre detainee Dylan Voller. 

The 23-year-old is suing Fairfax Media — now owned by Nine Entertainment — Nationwide News and Sky News over comments posted by members of the public in response to articles they placed on their Facebook pages. 

Last year, a New South Wales Supreme Court judge ruled the media companies were publishers of the comments — and therefore liable for them — and the media companies appealed. 

The NSW Court of Appeal today dismissed the challenge and said it was clear the relevant Facebook pages were created on the basis users would be invited to post comments. 

Justices John Basten, Anthony Meagher and Carolyn Simpson said the organisations "accepted responsibility for the use of their Facebook facilities for the publication of comments, including defamatory comments".  
"It was the applicants who provided the vehicle for publication to those who availed themselves of it," they wrote in the judgment. 

'Turning a blind eye' no defence 

The judges said it was not uncommon for someone to be held liable for publishing defamatory imputations conveyed by "matter composed by another person". 

They drew parallels to cases where the owners or occupiers of buildings had been taken to court over defamatory statements on noticeboards or scrawled in graffiti. 

The court is yet to tackle the question of whether the material in question was defamatory. 

In his initial decision last year, Justice Stephen Rothman said defendants could not escape consequences of their actions by "turning a blind eye". 

He also ruled the defence of innocent dissemination was not available because the defendants were first or primary distributors. 

Mr Voller's statement of claim alleges he was defamed by imputations including that he had "brutally bashed a Salvation Army Officer", had raped an elderly woman, that he committed a carjacking and that he had bitten off someone's ear. 

The comments were posted between July 2016 and June 2017 on pages run by the Sydney Morning Herald, The Australian, Sky News, The Bolt Report and The Centralian Advocate. 

Mr Voller's treatment at the Don Dale Youth Detention Centre, which was the subject of an ABC Four Corners investigation in 2016, sparked a royal commission into youth detention facilities.

The judgment in Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102 dismissed the appeal, ordered the applicants pay the respondent’s costs in the appeal proceedings and dismissed the notice of motion of Bauer Media Pty Ltd, Dailymail.com Australia Pty Ltd and Seven West Media Ltd filed on 23 August 2019 (the latter three media companies having sought leave to appear as amici curiae in the proceedings).

Morrison Government expects to be forced to refund est. $555.6 million unlawfully taken from at least 449,500 Centrelink clients

Photograph: The Guardian graphic, 27 March 2020

In July 2016 the federal Coaltion Government began to issue income compliance notices based on automated data matching.

At the time the then Minister for Social Social Services Scott Morrison expected to clawback an est. $1.7 billion dollars over five years from individuals who were, or had been in the past, receiving a Centrelink pension, benefit or allowance.

From its beginning this income compliance scheme was seen as flawed.

By 2019 at least 570,000 of those over 600,000 income compliance notices were considered to be unlawful. As were Australian Taxation Office garnishee notices associated with these alleged debts.

A total of 18,000 individuals who consented to automated data matching to calculate an alleged debt are also considered to have been subject to an unlawful action.

Refunding these wrongfully raised debts would see at least $555.6 million returned to Centrelink clients.

A class action on behalf of victims of the unlawful ‘robodebt’ scheme has been commenced by Gordon Legal.

Becoming a member of a class action does not expose a ‘robodebt’ recipient to any additional legal liability with regard to the alleged debt.

However, the Morrison Government is possibly hoping many victims will not realise this and sign the Centrelink “Opt Out Notice – Federal Court of Australia – ‘Robodebt’(Social Security Debt Collection) Class Action (VID1252/2019)” notices it is currently sending out.

Gordon Legal has outlined possible court dates:

On 6 March 2020 the Honourable Mr Justice Murphy of the Federal Court ordered that the parties hold a mediation prior to 19 June 2020. This is an opportunity for the matter to be resolved with the consent of both parties.

Justice Murphy also ordered that, if the matter does not settle at mediation, a trial will begin in the Federal Court on 20 July 2020 (or if that date is not available, on 21 September 2020).

Services Australia (formerly the Dept. of Social Services-Centrelink) despite its denials continues to raise alleged debts and send out notices.

While the very unhappy Morrison Government probably hoping to discourage future class actions is also pushing ahead with a parliamentary inquiry into the class action industry, including the profits made by litigation funders that bankroll claims on behalf of Australians.

The Guardian, 18 May 2020:

Hundreds of thousands of Australians affected by the government’s robodebt scheme will receive notices from Centrelink about an upcoming class action under orders from the federal court.

Guardian Australia last month revealed secret government advice showing the commonwealth hopes to settle the case and has privately admitted more than 400,000 welfare debts were unlawfully issued under the scandal-ridden “income compliance program”.

But the parties are yet to reach a settlement, setting up a potential trial as early as July where law firm Gordon Legal will seek interest and compensation as well as the repayment of debts unlawfully claimed by the government.

Under court orders issued in March, the government has been told to identify all potential class action members and send out notices via MyGov or by post about the upcoming court challenge by 25 May.

More than 12,000 people have registered with the firm, but under Australian law people identified as members of the “class” are considered part of the action unless they “opt-out”, which would allow them to pursue their own individual claim.

Labor’s government services spokesman, Bill Shorten, said the government should “settle this case immediately, restore public confidence in Centrelink by allowing the court to be the independent umpire, and pay the victims back their money as well as interest”.

“This would allow the hundreds of Centrelink workers working on limiting the government’s robodebt exposure to be moved back to the frontlines of helping their fellow Australians with their social security needs in this time of national challenge,” he told Guardian Australia.

Since July 2015, more than 600,000 debt notices had been sent out under the scheme, which the government conceded was unlawful in federal court in November, while thousands more received letters demanding they prove they were not overpaid by Centrelink.

Some debt recipients had their tax returns seized over the debts, while others were also forced to pay a 10% “recovery fee” on top of the alleged debt.

Gordon Legal believes the case would represent one of the largest class actions in Australian history.

Late last week, the government declined to answer several written questions about the robodebt scheme, successfully applying for public interest immunity in the Senate.

Services Australia declined to answer how many debts had been issued using the unlawful “income averaging” method or whether it would repay victims, including debts recovered from deceased estates.

“This question relates to a court case that is currently before the federal court of Australia,” the agency said. “Services Australia will abide by any decision of the court.”

But a ministerial submission to cabinet, leaked to the Guardian, revealed the government hopes to settle the case and that Services Australia expects to “administer 449,500 refunds determined under the programme”, worth $555.6m.

The robodebt class action notices come as the government pushes ahead with plans for an inquiry into class actions in Australia.

Porter last week claimed a “lack of regulation governing the booming litigation funding industry is leading to poor justice outcomes”.

But Labor has argued the inquiry is a response to Gordon Legal’s class action against the robodebt scheme.

If the parties do not reach a settlement, a trial is expected between July and September.

The government’s legal advice shows it expects to lose the class action under Gordon Legal’s claim of “unjust enrichment”, although it believes the compensation claim is less likely to be successful.

“This is likely to result in the commonwealth being ordered to repay debts within a timeframe set by the Court, and to pay interest and legal costs,” the advice said.

Court documents show the number of potential victims expanded in March after the government withdrew an earlier claim that people receiving Carer Payment were not subjected to the scheme.

The government has conceded in court that debts that relied on income averaging were invalidly raised, but claims it should not have to pay compensation because it does not hold a common law duty of care to welfare recipients…...

Law Council of Australia is very concerned with some aspects of Minister for Home Affairs Peter Dutton's proposed amendments to the Australian Security and Intelligence Act 1975 (Cth) (ASIO Act)

"The Australian Security Intelligence Organisation Amendment Bill 2020 will modernise ASIO's powers and, in doing so, improve ASIO's capacity to respond to these threats [by]....lowering the minimum age of a questioning subject in relation to a terrorism matter from 16 to 14...empowering the Attorney-General to issue warrants, including orally....allow non-intrusive tracking devices, such as a device placed on a vehicle, or in a person's bag, to be authorised internally...." [Minister for Home Affairs & Liberal MP for Dickson Peter Dutton in House of Representatives Hansard, 13 May 2020]

Law Council of Australia, media release, 13 May 2020:

Statement on proposed amendments to the ASIO Act by Law Council President, Pauline Wright

The Law Council of Australia is very concerned with some aspects of the proposed amendments to the Australian Security and Intelligence Act 1975 (Cth) (ASIO Act) released today in parliament.

If adopted, the amendments would redesign the Australian Security and Intelligence Organisation’s (ASIO’s) compulsory questioning warrant regime and repeal its specific detention powers.

It would also make some significant changes to ASIO’s surveillance powers, including permitting warrantless (that is, internally authorised) surveillance in relation to the use of certain tracking devices.

The Law Council welcomes the repeal of the ASIO detention regime in relation to the investigation of terrorism, which is consistent with its longstanding policy position. However, the amendments propose a re-design of the use of questioning warrants and we are concerned that there may be very limited time to scrutinise the proposed laws, which are lengthy, complex and highly intrusive on individual rights.

The proposal to reduce the age of minors who may be subject to questioning from 16 to 14 years and the conferral of powers on police to apprehend and detain persons for the purpose of bringing them in for compulsory questioning also requires detailed scrutiny by the Law Council, amongst the many other amendments.

The Law Council is concerned that the government is now rushing the Bill, despite having had over two years to develop the re-designed questioning legislation since the PJCIS tabled its report in May 2018.

Now there is a sense of urgency given that ASIO’s current questioning powers are due to sunset in 7 September, and the amendments are set to commence by or before that date.

This is not a Bill to be hurried through.

The Law Council will need to carefully scrutinise the Bill and we look forward to providing a comprehensive submission to the inquiry. 

~~~~~~~~~~~~~~~~~

The Australian Security Intelligence Organisation Amendment Bill 2020 can be found here.

The Sydney Morning Herald, 14 May 2020:

With Federal Parliament flat out dealing with the social and economic fallout of the COVID-19 pandemic, now is hardly the right time for a government to introduce legislation giving ASIO the power to question 14-year-old children, interfere with the rights of legal advisers, and enable the tracking of individuals without the need for a warrant..... 

Dutton's law would allow ASIO to seek a warrant so it can question young people aged 14 to 18 if they are a target of an ASIO investigation into politically motivated violence: broad criteria to say the least. 

Then there is a serious attack on the fundamental right of a person, whether they be 14 or 40, to choose their own lawyer when they are subject to investigation by ASIO. The bill allows for a prescribed authority, which is a judge or Administrative Appeals member selected by the government, to stop a person ASIO is seeking to question from contacting their lawyer if "satisfied, based on circumstances relating to the lawyer, that, if the subject is permitted to contact the lawyer, a person involved in activity prejudicial to security may be alerted that the activity is being investigated, or that a record or other thing the subject may be requested to produce might be destroyed, damaged or altered". 

This power is sweeping and allows for hearsay "evidence" to be used. All ASIO would have to do is tell the judge or AAT member that it has heard from "sources" that the lawyer requested by the detainee is a security risk. 

But even if the lawyer passes muster and sits with his or her client, the ASIO officers doing the questioning can have the lawyer removed. The explanatory memorandum of the bill says that can happen, "if the lawyer's conduct is unduly disrupting questioning. This may be the case where, for example, a lawyer repeatedly interrupts questioning (other than to make reasonable requests for clarification or a break to provide advice), in a way that prevents or hinders questions being asked or answered." So if the ASIO officers are badgering or harassing a frightened 14-year-old, or asking questions that are completely irrelevant, they have carte blanche. 

As a lawyer, one hears and reads stories about colleagues in authoritarian states where such powers are given to and used by security agencies, but one never expected it in democratic Australia....