Leave to be legally represented has long been a matter of controversy in litigation before the Queensland Industrial Relations Commission (QIRC).
Section 530 of the Industrial Relations Act 2016 (IR Act) severely restricts the right of lawyers to appear in the QIRC.
Lawyers can only appear in the QIRC in the following situations:
An even stricter test is applied for representation in public service appeals under section 530A.
Conversely, for proceedings before the Full Bench of the QIRC or before the Industrial Court of Queensland, while legal representation is by no means automatic, the power to grant leave for legal representation can be exercised in any proceeding before the Full Bench or Court.
The Industrial Court of Queensland recently considered the matter of leave for legal representation.
In this case, an application to vary an award was referred to the Full Bench of the QIRC. Vice President O’Connor of the QIRC (who is also one of the members of the Full Bench) listed a directions hearing before himself to make programming orders to prepare the matter for hearing by the Full Bench.
Using the general powers of the QIRC under section 451 of the IR Act and/or Regulation 41 of the Industrial Relations (Tribunals) Rules 2011 to give directions about the hearing of a matter or make an order it considers appropriate, VP O’Connor granted the State of Queensland leave to be legally represented at the directions hearing.
Together Queensland challenged VP O’Connor’s decision to grant the State leave to be legally represented, and appealed that decision to the Industrial Court of Queensland.
On appeal, Justice Davis stated that section 451 of the IR Act gives general powers to the QIRC, but those general powers must be subject to the specific prohibition in section 530.
Justice Davis acknowledged that section 530 “severely restricts the right of appearance of lawyers in the QIRC”.
What does this mean in practical terms?
Justice Davis suggests that in this specific case (an award variation to be heard before the Full Bench), the application for leave to be legally represented needed to be made to the Full Bench (which may or may not be made up of the same members who ultimately hear the substantive application). The QIRC would then continue to make interlocutory orders and directions to prepare the matter for hearing by the Full Bench, as per the usual course, with the parties legally represented if the Full Bench had made that order.
We note that this approach to proceedings before the Full Bench gives rise to quite a complex pre-hearing process, with the matter of legal representation needing to be determined by the Full Bench of the QIRC and a single member of the QIRC determining other matters.
Interestingly, Justice Davis noted that the Full Bench has a broad discretion to grant leave to a party to be legally represented, yet:
“Any complicated issue which might have to be considered in an appeal would invariably have been raised in the QIRC so it is mysterious why the QIRC does not have a broader discretion to grant leave to the parties to be legally represented.”
So, while this case does provide further guidance on leave to be legally represented in the QIRC and reinforces the strict test that has historically been applied, it also confirms that the ‘mystery’ of the QIRC’s restricted discretion concerning legal representation continues.
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OIC Qld decisions
03 September 2021 - Q53 and Queensland Building and Construction Commission  QICmr 45 (2 September 2021)
ADMINISTRATIVE LAW - RIGHT TO INFORMATION -REFUSAL OF ACCESS - CONTRARY TO THE PUBLICINTEREST - personal information of other individuals -safeguarding personal information and the right to privacy of other individuals - whether disclosure would, on balance, be contrary to the public interest - whether access may be refused under section 67(1) of the Information Privacy Act2009 (Qld) and section 47(3)(b) of the Right to Information Act 2009 (Qld).
XV' and Services Australia (Freedom of information)  AICmr 43
Freedom of Information — whether reasonable steps taken to find documents — (CTH) Freedom of Information Act 1982 s 24A.
'XM' and Australian Financial Security Authority (No 2) (Freedom of information)  AICmr 41
Freedom of Information — whether reasonable steps taken to find documents — (CTH) Freedom of Information Act 1982 s 24A
Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller  HCA 27
Appeal dismissed with costs.
Defamation – Publication – where appellants were media companies – where each appellant created, operated and maintained public Facebook page – where each appellant created posts on Facebook page hyperlinking to news stories referring to respondent – where third-party Facebook users left "comments" on appellants' posts – where comments alleged to be defamatory of respondent – whether appellants "publishers" of comments – whether intention to communicate defamatory matter necessary for appellants to be publishers.
Athavle v State of New South Wales  FCA 1075
HUMAN RIGHTS – freedom of religion – COVID-19 pandemic – applicants sought urgent interlocutory injunction restraining enforcement of NSW and Victorian public health orders (the impugned instruments) to allow observance of Jewish religious holidays – whether serious question to be tried – whether balance of convenience favoured injunction – where orders sought could have dire consequences for public health and third parties –undertaking as to damages inadequate – interlocutory application dismissed
HIGH COURT AND FEDERAL COURT – interpretation of Constitution – accrued jurisdiction – whether applicants’ Federal claims merely colourable – borderline case – whether Federal claim is bona fide – merely because Federal claim is untenable does not deprive Court of jurisdiction – federal jurisdiction enlivened
STATUTORY INTERPRETATION – whether “principle of legality” applies to read down impugned instruments – whether public health orders unreasonable or disproportionate – common law right to freedom of religion – where purpose of impugned instruments to restrict rights and freedoms to protect public health – where impugned instruments involve complex policy choices – where relief sought invites Court to rewrite impugned instruments – separation of powers between executive and judiciary – no constructional choice available – no serious question to be tried and balance of convenience does not favour applicants
CONSTITUTIONAL LAW – whether impugned instruments constitutionally invalid – whether implied Constitutional right to religious freedom restricting State legislative power – implied right to religious freedom would be contrary to express terms of s 116 of the Constitution – Preamble to Constitution does not support implication – no serious question to be tried and balance of convenience does not favour applicants
BDR21 v Australian Broadcasting Corporation  FCA 960
PRACTICE AND PROCEDURE – application pursuant to rr 16.21 and 26.01 of the Federal Court Rules 2011 (Cth) and s 31A(2) of the Federal Court of Australia Act 1976 (Cth) to strike out and/or give summary judgment in relation to parts of amended statement of claim – whether reasonable cause of action disclosed – whether any reasonable prospect of success – where applicant alleges reprisal action pursuant to s 13 of the Public Interest Disclosures Act 2013 (Cth) (PID Act) – whether allegations in document subject to parliamentary privilege can be relied upon as disclosable conduct for purposes of whistleblower protections in the PID Act – whether unlawful to adduce evidence of material facts of alleged public interest disclosures by reason of s 16(3) of the Parliamentary Privileges Act 1987 (Cth) – whether document prepared for purposes of or incidental to the transacting of the business of a parliamentary committee – whether material facts require evidence, questions or submissions concerning proceedings in Parliament – whether Parliament intended s 24 of the PID Act to abrogate or modify parliamentary privilege – application granted
Carne v Crime and Corruption Commission  QSC 228
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - GENERAL MATTERS - PRIVILEGES - PRIVILEGE OF PARLIAMENTARY DEBATES AND PROCEEDINGS - where the Crime and Corruption Commission undertook an investigation into the applicant - where a report was produced - where the report was presented to the Parliamentary Crime and Corruption Commission - where the Parliamentary Crime and Corruption Commission is a committee of the Legislative Assembly of Queensland - where the applicant challenged aspects of the report - whether the preparation of the report was part of the proceedings of the Legislative Assembly of Queensland - whether parliamentary privilege and immunity attached to the preparation of the report - whether the applicant seeks to question or impeach the proceedings
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - where the Crime and Corruption Commission prepared a report purportedly under s 64 and s 69 of the Crime and Corruption Act 2001 - where the report was delivered to the Parliamentary Crime and Corruption Commission - where the Parliamentary Crime and Corruption Commission is a committee of the Legislative Assembly of Queensland - where the applicant argued that parliamentary privilege did not attach to the report unless it was a “report” for the purposes of s 64 and s 69 of the Crime and Corruption Act 2001 - whether on a proper construction of the Crime and Corruption Act 2001 the report was a “report” - where a provision of the Crime and Corruption Act 2001 bestowed parliamentary privilege on a report in certain circumstances - whether that section impliedly restricted privilege which may otherwise arise
Allwood v Sundin, Chung, Greaves & Anor  QCA 196
ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – EXTENSION OF TIME – where, from 2008 until 21 July 2014, the appellant suffered a work related psychiatric/psychological injury (the first injury) and later, from 22 July 2014 until January 2015, suffered a work related aggravation of a pre-existing psychiatric/psychological injury (the second injury) – where the Medical Assessment Tribunal - Psychiatric assessed the appellant’s degree of permanent impairment from the first injury at four per cent, which meant that he was ineligible to seek common law damages in relation to that injury – where the appellant was out of time to bring an application for judicial review – where the appellant’s explanation for the delay is that he was not initially “aggrieved” by the decision, but became aggrieved upon receipt of a psychiatrist’s report which made it clear that his claim for damages as a result of the second injury could not be such that would compensate him for the psychiatric injury that he suffered during his employment – where the primary judge found that was not a satisfactory explanation for the appellant’s delay – where the primary judge found that some of the appellant’s grounds of review were arguable – where the primary judge found in the absence of a satisfactory explanation for delay it would not be in the public interest to grant the extension of time – where the primary judge found a grant of an extension would not be fair and equitable in the circumstances – whether the primary judge erred in exercising her discretion to extend the time. Judicial Review Act 1991 Qld s 7, s 20, s 26; Workers’ Compensation and Rehabilitation Act 2003 Qld s 237, s 505
Freeman v Montgomery  QDC 210
PROCEDURE – POWER OF COURT TO PUNISH FOR CONTEMPT – PENALTY – where an order was made, by consent, which required the plaintiff to deliver up vacant possession of property by a specified date, not to do anything which would impede the sale of the property and to withdraw a caveat he had lodged over the property – where defendant alleged contempt against plaintiff respondent in failing to comply with each order – whether the plaintiff respondent knowingly and without lawful excuse failed to comply with the orders – whether distinct acts in breach of the order to give possession were one contempt or several contempts – whether the plaintiff knowingly and without lawful excuse failed to comply with the orders – where acts were contumacious, persistent and deliberate – whether rules of evidence apply to sentencing proceedings for civil contempt –where plaintiff expressed no remorse and make no apology – where the plaintiff did not take opportunities to comply with the orders after the application for contempt was filed – where there is a need for personal and general deterrence – whether a custodial sentence is appropriate in all the circumstances
Criminal Code 1899 Qld ss. 2, 3; District Court of Queensland Act 1967 Qld ss. 105, 129;Justices Act 1886 Qld
Land Title Act 1994 Qld ss. 126, 127, 130
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Commonwealth Electoral Amendment (Integrity of Elections) Bill 2021
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Charter of the United Nations Amendment Bill 2021
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Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Bill 2021
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Independent National Security Legislation Monitor Amendment Bill 2021
Senate 2nd reading – 02 Sept 2021 - Amends the Independent National Security Legislation Monitor Act 2010 to: Enable the Independent National Security Legislation Monitor (INSLM) to report on own-motion inquiries in standalone reports; provide that the INSLM's annual report may include information relating to the performance of the INSLM's functions in relation to a referral from the Parliamentary Joint Committee on Intelligence and Security; specify reporting arrangements for statutory reviews conducted by the INSLM; provide a framework for the engagement of staff (including contractors) to assist the INSLM in the performance of its functions or exercise of its powers; and provide current and former staff of the INSLM with certain legal protections during the course of assisting the INSLM with performing functions or exercising powers of the INSLM.
Crimes Amendment (Remissions of Sentences) Bill 2021
On 26 August 2021, the Senate referred the Crimes Amendment (Remissions of Sentences) Bill 2021 to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 14 October 2021. The deadline for submissions to this inquiry is 17 September 2021.
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Broadcasting Services (Parental Lock) Amendment Technical Standard 2021 (No.2)
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Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 3) Instrument 2021
02/09/201 - This instrument amends the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 to extend the human biosecurity emergency period for a further 3 months until 17 December 2021.
Marriage (Celebrancy Qualifications or Skills) Amendment (Guidelines) Determination 2021
01/09/2021 - This instrument amends the Marriage (Celebrancy Qualifications or Skills) Determination 2018 to include a reference to the Guidelines on the Marriage Act 1961 for Authorised Celebrants September 2021 as a training material to be utilised in the delivery of the Certificate IV in Celebrancy.
Federal Circuit and Family Court of Australia Legislation (Consequential Amendments and Other Measures) Regulations 2021
30/09/2021 - This instrument amends family law and court-related regulations to ensure that they continue to operate effectively following the commencement of the Federal Circuit and Family Court of Australia Act 2021 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021. It also makes minor and consequential amendments to other Commonwealth regulations to reflect the commencement of the Federal Circuit and Family Court of Australia.
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021
30/09/2021 - This instrument provides transitional rules in respect of amendments to the Federal Court and Federal Circuit Court Regulation 2012 and the Family Law (Fees) Regulation 2012 made by the Federal Circuit and Family Court of Australia Legislation (Consequential Amendments and Other Measures) Regulations 2021.
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021
30/09/2021 - These Rules adopt the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to apply in family law and child support proceedings in the Federal Circuit and Family Court of Australia (Division 2), in order to harmonise the rules of court that apply across the federal family law and child support jurisdictions.
Family Law (State and Territory Courts) Rules 2021
30/09/2021 - This instrument adopts the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to apply to state and territory courts exercising family law jurisdiction, in order to harmonise the rules of court that apply to all courts when exercising family law jurisdiction (with the exclusion of Western Australia).
Subordinate legislation as made – 01 September 2021
No 136 Parliamentary Service Rule 2021
No 122 Statutory Instruments (Exemptions from Expiry) Amendment Regulation 2021
The Regulation, commences on 1 September 2021
No 127 Criminal Practice (Fees and Allowances) Regulation 2021
This Regulation is Made under the Coroners Act 2003, Justices Act 1886, and Supreme Court of Queensland Act 1991. The purpose of the Regulation is to replace the Criminal Practice (Fees) Regulation 2010, and continue to provide a transparent and equitable fee regime for accessing court exhibits, documents and other things from criminal proceedings, and a transparent and equitable compensatory scheme for prosecution witnesses in criminal proceedings). The Regulation, commences on 1 September 2021
No 128 Witness Protection Regulation 2021
This Regulation is Made under the Witness Protection Act 2000 (the Act). The Regulation, which commences on 1 September 2021, remakes the 2011 Regulation to support the main objective of the Act.
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.