Lessons to learn from Finberg v Efron [2015] FCCA 2470 – underpaid law student takes employer to court

The exploitation of law students in an increasingly competitive graduate environment is a growing issue. In Finberg v Efron [2015] FCCA 2470, a law student successfully took the law firm he worked at to court for underpayments and other breaches of the Legal Services Award 2010 (LS Award) and the Fair Work Act 2009.

Facts

Saul Finberg was a Melbourne law student who worked at a small law firm Efron and Associates run by a sole practitioner Graeme Efron whilst studying his final year of his Bachelor of Laws and Bachelor of Arts. Finberg worked at Efron and Associates for almost a year from 5 March 2013 to 7 February 2014. Finberg commenced action for underpaid wages, among other things in mid-2014.

What did the law student claim?

Like most law students working in a quasi-legal capacity at a law firm whilst studying, Finberg was covered by the LS Award. See this previous blog post for a summary of the LS Award - http://lawgradinpink.blogspot.com.au/2015/07/law-graduates-and-paralegal-working.html . Finberg claimed the following:

1.       Unpaid wages under clause 14 of the LS Award;

2.       Unpaid superannuation contributions in accordance with clause 23 of the LS Award;

3.       Unpaid annual leave loadings on accrued annual leave in accordance with clause 23 of the Award;

4.       Unpaid accrued annual leave and annual leave loading which was meant to be paid out when the employment terminated.

These four items amounted to a sum of $28,882.83. Interest on this amount was also claimed.

In addition, Finberg also brought action under the Fair Work Act 2009 for breaches of:

1. s.536 – failure to provide payslips with prescribed content and in the prescribed form; and

2. s.535 – failure to maintain employee records in accordance with the Fair Work Act and Regulations.

The employer’s behaviour

Efron and Associates’ initial behaviour was abysmal. The law firm denied the law student was even employed by them and claimed the law student was on a work experience placement. By the time the final hearing occurred, the employer had conceded the law student was an employee and that the LS Award applied.

Consideration by the Federal Circuit Court

1.       Breach of LS Award and Fair Work Act 2009

Judge Jones first considered which classification in Schedule B to the LS Award the law student fell under. The employment relationship had commenced after the law student approached Efron and Associates with a view to gaining experience in a law firm. The law student was given a range of administrative tasks and legal tasks which required legal knowledge and the application of legal skills. The dispute between parties concerned the award classification the law student was employed under, as there was disagreement about the extent of legal tasks performed, and the level of legal skill required.

Judge Jones came to the view that while the law student prepared legal research memoranda and briefs to Counsel, this was limited and involved the exercise of basic legal skills. Any other duties such as attending a property settlement unsupervised, were one off, and still required only basic legal skills. The legal work the law student undertook was of a limited and basic nature.

The employee submitted that his employment was Level 5 – Legal, Clerical and Administrative employee, while the employer asserted Level 2 or Level 3 was the applicable level. Judge Jones decided the appropriate classification was Level 4 – Legal, Clerical and Administrative employee, as the law student’s legal skills best fitted this category, and the employee was able to initiate research and engage in some tasks such as preparing Court books and maintaining files in a reasonably independent way.  Judge Jones then looked at the breaches of the Award:

A.      Minimum pay

Finberg was initially paid $9.62 an hour, until June 2013 when he was paid $10.13 an hour. The current minimum rate of pay under the LS Award for Level 4, Legal, Clerical and Administrative for a part-time employee is $22.32 per hour. This hourly rate would have been slightly less when Finberg was employed at Efron and Associates, but what Finberg received would still have been gross underpayment.

B.      Superannuation

As the employee was grossly underpaid, superannuation contributions were also below the amount required under clause 23 of the LS Award.

C.      Annual leave

Finberg was entitled to be paid out for accrued annual leave under s.90(2) of the Fair Work Act 2009 and the annual leave loading that accrued under clause 35.3 of the Award.  

2.       Breach of s.535 failure to maintain employee records

Section 535 requires an employer to make and keep for 7 years employee records of the kind prescribed in the regulations. Judge Jones was not presented with any probative evidence by the employer that s.535 had been complied with, so made the inference that s.535 had been breached.

3.       Breach of s.536 failure to provide employee pay slips

Finberg was not provided with any payslips until June 2013, which is a clear breach of s.536 which provides “an employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work”.

Law student had to pay the employer’s costs for Application in a Case for summary judgment

The costs question related to an Application in a Case heard by the court on 26 August 2014. The Application in a Case was an application for summary judgment under s.17A of the Federal Circuit Court of Australia Act 1999. Section 17A sets a very high bar for summary judgment to be made. The Court must be satisfied that the defendant has no reasonable prospect of successfully defending the proceeding or part of the proceeding. While the section states “no reasonable prospect of success” does not necessarily mean “hopeless” or “bound to fail”, the threshold for obtaining a summary judgment is high. On 26 August 2014 Judge Jones determined that there was not sufficient information to find there were no reasonable prospects of the law firm successfully defending the proceedings, and there was evidence that needed to be ventilated at trial. The law firm then pursued a costs order, under s.570 of the Fair Work Act 2009 which provides a party may be ordered to pay costs only if the court is satisfied that:

(a)    the party instituted the proceedings vexatiously or without reasonable cause; or

(b)   the party’s unreasonable act or omission caused the other party to incur the costs.

The Federal Circuit Court found (b) was satisfied. Key issues were in dispute, such as the classification of the employee, duties performed by the employee, and it could not be said the law firm had no reasonable prospects of success of defending proceedings. The law student had to pay $1,706 in costs for the Application in a Case. The law student was represented, and could potentially commence action in professional negligence against the law firm who advised to file an Application in a Case for summary judgment.

Outcome

The parties were to negotiate consent orders reflecting the breaches found by Judge Jones and the law student was to pay the employer $1,706 for the erroneous Application in a Case.

Lessons to learn

·         Do not assume you are being paid correctly by your employer. If you are working in a clerical or paralegal capacity while studying it is likely you are covered by the LS Award. To calculate rates of pay, you can use the Fair Work Ombudsman’s Pay Calculator http://calculate.fairwork.gov.au/findyouraward.

·         Read the LS Award and understand what your entitlements are. For example, if you are covered by the LS Award and are working a full day, you are entitled to a meal break of between 30 minutes and 60 minutes (clause33).

·         Do not assume that because you are a law student you will be able to successfully manage a case against your employer yourself. The Fair Work Ombudsman can commence litigation on your behalf using their enforcement jurisdiction.

·         Applications for summary judgment are rarely successful and should only be made if certain you will pass the threshold test, as it is likely costs will be awarded against you if your claim is unsuccessful. 

·         In dealing with breaches of s.535, failure to maintain employee records, the Federal Circuit Court used the fact that pay slips were not provided to the employee and the fact the employer provided no evidence to the contrary despite being put on notice to conclude s.535 had been breached. This appears to be a reverse onus of proof on the employer which is not reflected in the wording of s.535.

This blog post does not constitute legal advice. If you believe you are in a situation where you have been underpaid you should seek your own independent legal advice. 

Surviving imposter syndrome as a junior lawyer

You have spent 5 years at law school, another year at College of Law and 2 years on your probational practising certificate. You are a competent and successful junior lawyer and often receive praise for your work. Yet, you can’t quite shake that feeling that you are faking it, you got there by luck, and soon someone will find out that are not as capable/talented/smart as they think. This pattern of thinking is known as “imposter syndrome”. 

I am not a psychologist and I am not providing medical advice in this blog post. The purpose of this blog post is to share my experiences to help other junior lawyers identify and overcome imposter syndrome thoughts. 

What is Imposter syndrome?

In a nutshell, a person with Imposter syndrome feels inadequate despite significant evidence to the contrary. Others might see you as a successful, competent and smart law student, but you think you are inadequate and are just posing as a successful, competent and smart law student.

Psychologists Pauline Rose Clance and Suzanne Imes were the first to describe the imposter phenomenon in the 1970s. Imposter syndrome is not a diagnosis on the DSM, but has been identified as a very specific form of self-doubt that can be accompanied by other feelings such as anxiety and depression. Imposter syndrome is not an “all or nothing” condition, and junior lawyers can suffer from imposter syndrome in some aspects of their thinking or behaviour and not others.

Examples of thoughts and behaviour common to imposter syndrome:

1.       Feeling like a fake

You might feel like you got your graduate job because you managed to fool your interviewer into selecting you, despite the fact that you got the job because you performed well in two rounds of interviews and a written exam. You might also fear that you will be “found out” and kicked out or believe that you give the impression you are more competent than you are. You might question whether you are prepared for your graduate job and worry about the work you might be given.

2.       Attributing success to luck or external factors

You might believe it was luck that got you into law school. When you get a D or HD in an exam, you say you “got lucky” or point to something external like the assistance your friend in 5^th year gave you. People who find themselves with these thoughts might have significant fear they will not be able to succeed next time they have to complete a similar task.

3.       Discounting success

This category includes discounting achievement. For example, if you won a subject prize for Contracts and you say “it wasn’t that important” or “my tutor was an easy marker”.

What causes Imposter syndrome?

The research is mixed on the causes of Imposter syndrome. Clance and Imnes original research identified family dynamics as the main cause. To me, this seems quite Freudian, but I will very briefly outline the Clance and Imnes causes regardless:

1.       Family labels

For example, where children within a family are labelled differently, i.e. as “intelligent”, or “sensitive”. The child labelled “sensitive” can be lead to doubt her intelligence, even in the light of evidence to the contrary.

2.       Family messages of superiority

For example, where a child is over supported and is led to believe she is superior. Challenges arise which the child may find difficult, leading her to feel deceived by her family and leading to the development of the belief she is average or below average.

3.       Focus on achievement

Imes’ original research stated that a focus on achievement can confuse love, approval and self-worth, with self-worth becoming contingent on achievement. A familial focus on achievement can see mixed messages of over-praise and criticism, leading to imposter thoughts developing.

Additionally, being female can increase your chances of imposter syndrome thoughts. Originally in the 1970s, imposter syndrome was considered a female only phenomenon. Subsequent research has shown men also experience imposter syndrome, though “gifted” females are the group most likely to experience imposter syndrome. Other research has shown people from minority groups are also more likely to suffer from imposter syndrome.

Why junior lawyers are particularly susceptible to imposter syndrome

There are several reasons why junior lawyers commonly experience imposter syndrome:

1.       Imposter syndrome is commonly associated with high achievers

Undergraduate law courses at top universities tend to attract high achievers.

2.       Junior lawyers are embarking on new endeavours

Imes research showed that graduates are particularly susceptible to imposter syndrome as they are often asked to undertake tasks they may believe they are not ready to handle. Practising law is very different from studying law at University, and the challenging nature of the transition can cause imposter thoughts to develop.

3.       Imposter syndrome is commonly associated with perfectionist personalities

Perfectionist personalities are abound at law school and in the legal profession. The impostor phenomenon and perfectionism often go hand in hand, leading to the person either procrastinating, as they believe they will never be able to complete the task to high standards or over preparing and spending much more time on the task than is necessary.

4.       Female young professionals tend to attribute success to external factors

Attributing success to external factors can be a sign of imposter syndrome. Female professionals are more likely to attribute success to external factors than male colleagues. In Lean In, Women, Work and the Will to Lead (a book everyone should read), Sheryl Sandberg describes how women consistently underestimate themselves and how this pattern has serious long-term consequences. The following quotes were taken from the chapter “Sit at the Table”:

“For women, feeling like a fraud is a symptom of a greater problem. We consistently underestimate ourselves. Multiple studies in multiple industries show that women often judge their own performance as worse than it actually is, while men judge their own performance as better than it actually is.”

“Ask a man to explain his success and he will typically credit his own innate qualities and skills. Ask a woman the same question and she will attribute her success to external factors, insisting she did well because she “worked really hard” or “got lucky” or “had help from others”.

“In situations where a man and a woman each receive negative feedback, the woman’s self confidence and self-esteem drop to a much greater degree. The internalisation of failure and the insecurity it breeds hurt future performance, so this pattern has serious long-term consequences”

How to survive

There are several steps you can take to try and alleviate imposter syndrome thoughts:

1.       Identify feelings and automatic thoughts

A first steps is to identify thoughts that are tainted by imposter syndrome. Many of these thoughts are automatic and occur instantly without much thinking. For example, when your boss compliments you on a piece of work, in your head you might be thinking “phew, that was lucky”. This is an automatic thought. If a boss identifies a small error in your work, you might automatically think “I am not smart enough”. Identifying these automatic thoughts can help you gradually change thought patterns.

2.       Do your own reality check

Identify whether your thought accords with the objective facts. If you can, try and balance your thoughts. This may not be as easy as you think due to tendency of 20-something brains to retain negative memories more easily than positive memories.

In her thesis “30 is not the new 20: Why your 20s Matter”, Dr Meg Jay describes how the 20-something mind retains negative memories and experiences more strongly than positive experiences. This can be good for learning, as the 20-something mind remembers the negative experience and rarely makes the same mistake twice. However, it can be bad for self-confidence, as if your brain is focusing on the mistakes you have made at work, rather than the numerous times your boss told you they were very happy with your work, you can quickly come to doubt yourself and your ability. This is compounded by the fact junior lawyers make mistakes all the time, so your 20-something brain focuses on these negative experiences.

Acknowledge that you will remember negative feedback from your boss more vividly than positive feedback and then understand the difference between your feelings and reality. While this may sound ridiculous, it can help to keep a list of compliments and positive feedback on your work. When you get a negative piece of feedback you can then look at the objective evidence on your list and see that you are not doing so badly after all. Acknowledge that just because you think you are not smart, does not mean this is the reality.

3.       Talk about it

Do not be fooled, that law graduate in the team next door to you who seems to be oozing confidence might suffer from imposter syndrome thoughts too. Often people suffering from imposter syndrome do not talk about it, as they fear being found out. You don’t have to talk to that graduate, but finding someone who has similar thoughts or who has gone through the same process before to talk to may assist. For people experiencing strong imposter feelings of being found out or who are also experiencing anxiety may wish to talk to a psychologist. Being a neutral third party, the person with imposter feelings does not have to fear being found out when talking to a psychologist.

4.       Identify your expertise

Identifying your strengths can really help. Even if you are the most junior lawyer at work, you will still have strengths compared to other lawyers. For example, most junior lawyers are the best in their team at legal research and the most up to date in certain areas of law due to the fact they are fresh from law school. If there are more junior staff members, taking on an unofficial mentoring role could also help you, as you can see how far you have come from when you first started in the workforce.

5.       Manage your perfectionism

For those with perfectionist traits, acknowledging that perfect is not the goal but “well enough” will do most of the time can help.

Onwards

Life as a junior lawyer is hard enough without imposter syndrome thoughts. On a day to day basis you will be dealing with new law, new problems and new colleagues. With a bit of effort you can come to enjoy your accomplishments. Enjoying your achievements is important as a junior lawyer, where you will be making mistakes on a daily basis. You need to enjoy whatever small successes you achieve along the way.  Feeling fearful and anxious all the time does not have to be normal. For those with mild imposter syndrome, large changes can be seen merely by identifying thoughts and conducting a reality check. You are capable, smart and intelligent. Start believing it.

ACCC v RL Adams Pty Ltd [2015] FCA 1016 – Federal Court cracks down on falsely advertised “free range eggs”

Do you like your eggs free range? Do you care about the wellbeing of laying chickens but worry the “free range” eggs you buy aren’t really free range? There is good news on the horizon. The ACCC has recently started prosecuting false representations of free range standards. In the most recent free range egg misrepresentation case, Australian Competition and Consumer Commission v RL Adams Pty Ltd [2015] FCA 1016, the Federal Court found several instances of misleading and deceptive conduct in the way eggs were advertised as “free range” when they were not, and imposed large (but arguably not large enough) penalties on the offending company.

Facts:

RL Adams Pty Ltd is an Australian company which produces and sells chicken eggs. RL Adams’ main farm is Wingrave Farm in Queensland. About 83% of the eggs from Wingrave Farm are marketed as free range. The company use brand names Mountain Range Eggs and Drakes Free Range Eggs on its cartons. RL Adams represented on their free range cartons and on their website www.fresheggs.com.au that laying hens were able to move around freely on open range pastures on an ordinary day and on most days. The reality was that the laying hens were unable to and did not move freely on an open range in the relevant period. In the relevant 9 month period, the hens were kept locked in barns.

Example of Mountain Range Eggs carton packaging making the "free range" claims (image taken from the judgment):

What were the sections contravened?

Three sections of the Competition and Consumer Act were contravened:

1.       Section 18 of the Australian Consumer Law being Schedule 2 of the Competition and Consumer Act 2010 (Cth) which provides a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive.

2.       Section 29(1)(a) of the Australian Consumer Law which provides a person must not, in trade or commerce, in the connection or supply of goods, make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use.

3.       Section 33 of the Australian Consumer Law which provides a person must not, in trade or commerce, engage in conduct that is liable to mislead the public about the nature of the goods.

RL Adams Pty Ltd admitted to the contraventions, so most of Justice Edelman’s judgment concerns appropriate penalties.

Previous pecuniary penalties imposed in free range egg misrepresentation cases include:

·         No penalty imposed on the company, penalties of $30,000 and $20,000 were imposed on Directors – ACCC v CI & Co Pty Ltd [2010] FCA 1511;

·         $100,000 penalty imposed (suggested by parties) on the company - ACCC v Turi Foods Pty Ltd (No 2) [2012] FCA 19;

·         $50,000 penalty imposed on an individual – ACCC v Bruhn [2012] FCA 959;

·         $400,000 joint pecuniary penalty imposed on the companies responsible for “Steggles” products – ACCC  [2013] FCA 1109;

·         $375,000 penalty imposed on Luv-A-Duck – ACCC v  [2013] FCA 1136;

·         $300,000 penalty imposed on Pirovic Enterprises. This penalty was large considering the annual profits of Prirovic from free range eggs in NSW was $380,000 -  [2014] FCA 1028.

These cases show penalties imposed have varied greatly. In earlier cases, the ACCC often did not pursue a pecuniary penalty against the company. In more recent years, the ACCC has sought and successfully obtained pecuniary penalties against companies, in some instances by consent. The ACCC has never come close to awarding the maximum penalty of $1.1 million on a company. In the RL Adams Case, the Federal Court stated that pecuniary penalties imposed in previous cases provide little assistance (at [51]):

“With contraventions of the nature of those in this case, the breadth and variety of the many factors involved in an assessment of pecuniary penalties has the effect that any range of penalties derived from previous cases can only ever be stated in very broad terms. Indeed, the well-established term “range” can sometimes be misleading. It might be more accurate to say that an assessment of the general run of cases, including the cases mentioned in the introduction to these reasons, has so far revealed that penalties for contraventions by corporations have varied from $100,000 to $400,000”.

What pecuniary penalty did RL Adams have to pay?

RL Adams was ordered to pay $250,000 for its contravention. The Federal Court characterised the conduct as one contravention under the totality principle, but warned it should not be assumed that a series of related infringements will always be treated as a single contravention [10]. The amount was reached after considering the factors in s.224(2):

 “(2)  In determining the appropriate pecuniary penalty, the court must have regard to all relevant matters including:

(a)  the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and

(b)  the circumstances in which the act or omission took place; and

(c)  whether the person has previously been found by a court in proceedings under Chapter 4 or this Part to have engaged in any similar conduct.”

In particular, the Federal Court considered:

1.       Mitigating factors

RL Adams admitted to the contraventions early on, and completely cooperated with the ACCC in their investigations, including disclosing all relevant information requested by the ACCC.

2.       Deterrence

General deterrence is an important consideration in the imposition of pecuniary penalties [10]. Given penalties in previous “free range” misrepresentation cases have not deterred other companies in the industry making false representations about eggs, it could be argued that the pecuniary penalty needs to be raised for the sake of general deterrence.

3.       Size of RL Adams, its financial position and profits made by its representations

The additional profits obtained if eggs labelled “barn laid” had been sold as “free range” was $102,198 [62]. This profit was at the expense of purchasers. While other sellers of free range eggs may have made a loss, this loss is unquantifiable. RL Adams operations are of a small size compared to other producers.

4.       Infringement was not intentional

RL Adams confined the free range hens to barns at the time due to biosecurity issues. RL Adams had received advice about an outbreak of H7 avian influenza and about outbreaks of infectious laryngotracheitis [68]. Despite this motivation, RL Adams knew it had made free range representations and knew its hens were not free range.

5.       Previous contraventions

This was RL Adams first contravention [76].

6.       Extent of contraventions

The eggs were supplied to 63 retail locations in the relevant period across Queensland, NSW and the Northern Territory, where consumers paid premium price for the eggs despite the eggs not being free range eggs.

7.       Lack of compliance program

RL Adams did not have a compliance program to meet obligations under the Australian Consumer Law [79].

What other orders were made?

As well as the pecuniary penalty of $250,000, the following orders were made:

1.       Publication orders

a.       That RL Adams publish a correction notice on website within 14 days; and

b.      That RL Adams publish a corrective advertisement in each major metropolitan newspaper in each State or territory RL Adams supplies eggs

2.       Compliance orders

a.       appointment of compliance officer;

b.      requirements for officer training, staff training, and complaints handling;

c.       reporting obligations on progress to the ACCC; and

d.      the maintenance and administration of the ACCC compliance program for a period of 3 years.

3.       Costs orders

a.       RL Adams was ordered to pay the ACCC’s costs to the sum of $25,000.

What does this mean for the future of the free range egg industry?

The case shows the ACCC continues to be willing to investigate and prosecute companies and individuals making “free range egg” misrepresentations. While Justice Edelman discussed the importance of general deterrence in several sections of the judgment, the pecuniary penalty of $250,000 is in line with other recent cases, and is unlikely to deter other perpetrators. This aspect of the judgment is disappointing, as Justice Edelman seemed to set himself up to make a larger pecuniary penalty before settling with $250,000 which RL Adams had submitted was an appropriate penalty. 

The Senate Address and the Governor-General - What is a Senate Address? Does the Governor-General have the power to dismiss Royal Commissioner Dyson Heydon?

Labor Senators moved a motion called an “address” on 8 September 2015, asking the Governor-General Peter Cosgrove to dismiss Dyson Heydon from the Royal Commission into Trade Union Corruption (TURC). While the motion was unsuccessful, it raises broader questions about the nature of a Senate Address and whether the Governor-General has the power to dismiss a Royal Commissioner.

Who can dismiss Dyson Heydon from TURC? 

To answer this question we must first examine who has the power to appoint a Royal Commissioner. Section 1A of the Royal Commissions Act 1902 (Cth) gives the Governor-General the power to create Royal Commissions and appoint Commissioners to the Royal Commission by Letters Patent. It is important to note that s.1A of the Royal Commissions Act 1902 (Cth) is prefaced by the words “without in any way prejudicing, limiting, or derogating from the power of the King, or of the Governor-General, to make or authorise any inquiry, or to issue any commission to make any inquiry”. Letters Patent are legal instruments in the form of a published written order issued by the Governor-General or the Queen. The Letters Patent outlines the terms of appointment, and usually a Commissioner end their tenure as a Commissioner when the Royal Commission concludes. One principle of responsible government is that the Governor-General will act on the advice of Government Ministers, unless the Governor-General is exercising a reserve power. While the Constitution creates a Federal Executive Council to advise the Governor-General (s.62 Commonwealth Constitution), it is the principle of responsible government that the Governor-General will act in accordance with the advice of Ministers. In practice, under s.1A of the Royal Commissions Act the Prime Minister will advise the Governor-General to create a Royal Commission and will advise the Governor-General which Commissioner(s) to appoint.  

Section 7 of the Royal Commissions Act 1902 (Cth) provides that each Commissioner has the “same protection and immunity as a Justice of the High Court”. This means does not mean that a Commissioner can only be dismissed in the same way that a High Court judge can be dismissed. Essentially s.7 provides Royal Commissioners with immunity from civil claims. 

While the removal of Commissioners is not explicitly dealt with in the Royal Commissions Act 1902 (Cth) the removal can be made by the Governor-General on advice through Letters Patent. 

The question remains whether the Governor-General could act unilaterally to remove a Commissioner. This question is discussed below.

What is a Senate Address?

The Senate Address is a formal mechanism by which one branch of government (the legislature via the Senate) can express a view to the executive arm of government. It is simply a way for the Senate to express their views about a particular topic to the Governor-General or the Queen. Historically, most Senate Addresses to the King or Queen have been addresses of congratulations or sympathy. The Senate also produced addresses-in-reply in 1954, 1974 and 1977 when the Queen opened sessions of parliament in person. There have been several Senate Addresses to the Governor-General, with the Annotated Standing Orders of the Australian Senate listing the following addresses as being particularly important:
Ø  “1904 – requesting recognition of the constitutional fact that the provision of revenue and grant of supply is a joint act of both Houses;

Ø  1914 – two addresses, one requesting publication of the communications between the government and the Governor-General concerning the proposed simultaneous dissolution of both Houses under s.57 of the Constitution, and the second asking the Governor-General to submit to the electors six constitution alteration proposals passed by the Senate in accordance with s.128 of the Constitution but not passed by the House of Representatives;

Ø  1931 – urging that the Governor-General refuse to approve regulations in the current session that were the same in substance as regulations already disallowed by the Senate.”

The Senate Address in 1931 was particularly serious. The Scullin Labor Government had repeatedly introduced regulations that were struck down by the Senate. The Senate grew tired of the attempts and passed a motion addressing the Governor-General asking him to prohibit the government from making the regulations. The Governor-General did not take any action. The Governor-General’s power to exercise such a power is uncertain.

What is the significance of a Senate Address?

The Senate address has no legal effect. The Governor-General is not bound to follow the recommendation in the request. What the Governor-General does with this information is his own decision.

Does the Governor-General have the power to dismiss a Royal Commissioner?

As discussed above, the Governor-General’s express powers in the Constitution are exercised on Ministerial advice in line with the principles of responsible government. However, the Governor-General also has another set of powers which can be exercised unilaterally without advice, at the Governor-General’s own discretion or contrary to advice in certain circumstances. These powers are known as the reserve powers. The scope of the reserve powers is uncertain, as the reserve powers are a series of conventions developed from British conceptions of responsible government.

There are a few established reserve powers:

1.       The power to appoint a Prime Minister if an election results in a hung Parliament;

2.       The power to dismiss a Prime Minister in circumstances where the House of Representatives has passed a 'No Confidence' motion against the Prime Minister; and

3.       The power to refuse to dissolve the House of Representatives contrary to Ministerial advice. This is the most commonly used reserve power.

The following reserve powers are more doubtful, but arguably are held by the Governor-General:

1.       The power to refuse a double dissolution. A double dissolution has been requested six times by Parliament, and each time the Governor-General has dissolved parliament as requested. There is the possibility the Governor-General retains the power to refuse a double dissolution.

2.       The power to withhold assent to Bills that have passed both House of Parliament.

3.       The power to select a new Prime Minister where the outgoing Prime Minister resigns after a defeat in the House of Representatives. Some scholars argue the Governor-General is obliged to appoint the replacement proposed by the outgoing Prime Minister.

4.       The power to dismiss a Prime Minister where the Government cannot obtain supply and the Prime Minister refuses to resign or to call an election.

A power to unilaterally dismiss a Royal Commissioner on the basis of misconduct does not come in any of the above categories. This does not necessarily mean the reserve power to dismiss a Royal Commissioner does not exist, rather that it is uncertain.

Conclusion  

While a Labor-led Senate may be able to pass a Senate Address and formally indicate their view that Justice Heydon should be removed as Royal Commissioner, the Governor-General is unlikely to act on his own initiative to dismiss the Royal Commissioner, as the existence of such a reserve power is uncertain. The issues discussed raise broader points about the nature of reserve powers. Reserve powers are unable to be tethered by legislation and are widely believed to be unjusticiable. If concepts of responsible government were implied into the Constitution, as scholars such as Winterton have suggested in academic work, it is believed the reserve powers could become justiciable, potentially giving Governor-General’s more guidance and confidence to exercise their reserve powers.  

How do I comply with Continued Professional Development (CPD) requirements? How do I keep track of my CPD points?

As a junior lawyer with a restricted practicing certificate, the world of CPD points can seem confusing. Colleagues may tell you not to worry too much, and to just follow them to whatever seminars they are going to. This is a risky approach. It is your responsibility to make sure you are compliant. It is your practicing certificate is on the line (though you get a fair few second chances before it comes to this).

Note: this blog post is relevant to solicitors working in NSW and Victoria under the Legal Profession Uniform Laws. CPD requirements outside of these jurisdictions will vary. Different rules apply to Barristers.  

Where do I find the law on CPD requirements?

The detailed law is contained in the Legal Profession Uniform Continuing Professional Development (Solicitor) Rules 2015 (CPD Rules). The enabling legislation for the CPD Rules is the Legal Profession Uniform Law Application Act 2014 (Vic). Section 427 of the Act permits Continuing Professional Development Rules to be developed by the Law Council of Australia, which must be approved by the Legal Services Council before submitted to the Standing Committee. The CPD Rules can require practitioners to comply with provisions for continuing professional development and may provide for any aspect of continuing professional development (s.424).

What are the most important CPD Rules?

The most important rules are the minimum CPD requirements in Rules 5 and 6. A minimum of 10 CPD units each year must be completed, including at least one unit in each of the four following fields:

1.       Ethics and professional responsibility;

2.       Practice management and business skills;

3.       Professional skills; and

4.       Substantive law.

The CPD year runs from 1 April to 31 March, which is why you often see lawyers scrounging around for any CPD points they can get their hands on in the month of March.  If you received your practising certificate midway through the CPD year, the number of CPD points you need to obtain is reduced pro rata. For example, my practising certificate commenced in September 2015, so I only have to obtain 5 CPD points this CPD year. See Rule 10 for the pro rata reduction relevant to you.

Don’t stop at 10 points...

If you have excess points at the end of the CPD year, you can carry a maximum of 3 points across to the new CPD year (Rule 11).

How do I know how many units a CPD activity is worth?

Most seminars will state how many CPD points attendance at the seminar is worth. However, you should always check this figure and there will be situations where you have to calculate the relevant CPD points yourself. This grid shows the type of activity and relevant CPD points. I made this grid by combining the data from Rules 8 and 9:

Type of activity	Activity Rule reference	How to calculate units	Maximum units you can claim for this type of activity in  a CPD year
Seminar, workshop, lecture, conference etc	8.1.1	One point for one hour of the activity	No limit
Researching, preparing or editing of an article in a legal publication, a legal article in a non-legal publication or published Law Reports	8.1.2	One point for every 1000 words of the article	5
Preparation and/or presentation of written or oral material to be used in a CPD activity or other form of legal education	8.1.3	One point for one hour of the activity	5
Membership of a committee, taskforce or practice section of a professional association, designated local regulatory authority or the Law Council of Australia or of other committees, provided that the solicitor regularly attends its meetings, if the work performed on the committee, taskforce or practice section is of substantial significance to the practice of law and is reasonably likely to assist the solicitor’s professional development	8.1.4	One point for every two hours of the activity	3
Postgraduate studies relevant to practice needs	8.1.5	One point for one hour of the activity	No limit
Private study of audio-visual material specifically designed to update knowledge and/or skills relevant to the solicitor’s practice needs	8.2	One point for one hour of the activity	5
Completion of a specialist accreditation assessment process	9.3	-	10

You need to take record keeping seriously

You might have colleagues who don’t bother recording their CPD points until the end of the CPD year where they then struggle to remember what points they have accrued. You may have colleagues who copy each other’s CPD record, as they assume they attended the same seminars throughout the year. This is a risky practice. You can be subjected to a CPD audit at any time where you will be required to produce your record and evidence. You must retain your record and evidence for at least three years (Rule 12). If you are audited you will have 21 days to provide your record and evidence to the auditor (Rule 14).

How do I report my CPD points?

CPD points are certified on an annual basis. When you reapply for your practicing certificate you will be required to certify that you complied with the CPD Rules the previous year (Rule 13).

How should I keep a record of my CPD points?

As you attend each CPD activity write it in your record and print proof of your attendance/enrollment in the activity. This is the form I use to record my CPD points. Feel free to use it for yourself.

Date activity undertaken	Description of CPD Activity	CPD Category (E/PM/PS/S)	CPD points