Jon:
David, good morning to you.
DW:
Good morning, Jon.
Jon:
Fair bit of legal news around this morning. The Royal Commission is the gift that keeps on giving at the moment and some of the conduct of lawyers – before the Royal Commission into bank and AMP and other financial institutions – is now coming under scrutiny as well. Fascinating.
DW:
Are we talking about the AMP report?
Jon:
The Clayton Utz group is a major national law firm who provided an “independent” report for AMP; which it turns out was amended more than twenty times by the client before being released. It’s not exactly anyone else’s idea of an independent report, is it?
DW:
I haven’t seen the report. The real simple answer to that is no. If you pay someone to do an independent report, you would normally define the terms of reference and at that stage you let them go. In a sense a little bit like the Royal Commission: you define the terms of settlement you go and conduct what you’re required to do and go and give us a report.
In one sense, even one change is wrong; but twenty does cause concern.
Jon:
So it shows us how closely enmeshed the personnel are between the so-called regulator, because ASIC are not coming out of this looking squeaky clean either, the “independent” report of law firms who are in fact exchanging personnel with ASIC and with AMP. It’s a mate’s network of people helping each other out and pretending to be looking after the consumer.
DW:
Well somebody once told me, Jon, that ASIC’s enforcement budget was less that the public relations budget of one of the major banks: the PR budget. And there was a report in today’s paper that ASIC make $600 million a year for the government.
I had to do a company search in New Zealand last week. Do you know how much I paid? Nothing: it was free. You can’t do a free company search in Australia.
Jon:
There’s an opportunity. Quick tell the Kiwis they could be charging for that, they’ll get on to it quick flash. But what intrigued me is that Clayton Utz have form on this stuff and people have perhaps not got memories to remember.
DW:
British American Tobacco.
Jon:
The British American Tobacco case led to intense scrutiny of skulduggery within Clayton Utz when they were in charge of the Orwellian-named “document retention” policy. Which was in fact a mechanism for shredding the archives of the tobacco company before they could be accessed by plaintiffs suing them. And the document retention policy was no such thing. And then Clayton Utz spent more than ten years suing one of their own whistle blowing lawyers.
DW:
Yes, they did.
Jon:
Who was gagged. I’ve spoken to him this week and asked him to come on the radio and he said I’m not allowed to, and I’m not allowed to talk to you anymore, goodbye.
DW:
Well, I see him from time to time, Jon. I’ll go and have a talk to him.
Jon:
(laughs) We’ll see if you can get a better answer than the one I got.
DW:
But whatever answer I get, I can’t tell you.
Jon:
Well that’s probably true too. So this is not new news but the tightrope walkers keep getting away from it.
DW:
Someone has to pay the independent. The regulator might appoint the independent and require that the company concerned pay. But at the moment it’s the company that says we’ll go off and get an independent report and we’ll submit it to you. I think the better answer is the person who is to receive the report appoints the person, but then makes the other person pay.
Jon:
Alright now it’s also news on the front page of today’s Herald Sun that Supreme Court judges have said that it would be a breach of their independence to participate in a sentencing advisory council. It would be a muddling up of the judicial compared to the executive functions, the separation of powers.
DW:
I must say I agree with that.
Jon:
And they declined to join in.
DW:
I must say the Herald Sun didn’t take that view.
Jon:
No, no, their headline is Supreme Court judges snub plan to give Victorians a greater say in sentencing, laughed out of court. The judges have said well no you can set up the sentencing advisory council, it’s just not appropriate for any sitting judge to be on it. Get some retired judges, get some academics, whoever you like, but none of us.
DW:
Yep. I think that’s right. The answer would be we interpret and administer the law. The theory is they don’t make it, in practise they do; around the edges.
Jon:
Anything else that’s new?
DW:
Oh well in terms of new legislation yes. There was an amazing decision handed down in the High Court last Wednesday which will have an extraordinary impact at VCAT. What happened was NSW have a tribunal like ours, a civil and administrative tribunal, and it has an anti-discrimination list. Somebody made an application in the anti-discrimination list against a resident of Queensland for some things that were said or alleged to have been said.
The matter’s gone all the way to the High Court to determine whether the tribunal has the jurisdiction to hear it or not hear it.
Jon:
Sorry? Whether the anti-discrimination tribunal of NSW…
DW:
Has the right to determine a matter that arises between a resident of Queensland and a resident of NSW.
Jon:
In other words, can they reach across the border? Yes.
DW:
No is the answer. And the reason why no is because a tribunal isn’t a court. Now I spent some time over the weekend trying to see whether I could explain in very simple terms the difference between a tribunal and a court and I’ve got to tell you, I’m not prepared to give it a go.
Jon:
(laughs) So a court can reach across a border but a tribunal can’t?
DW:
But, in strict theory, a tribunal is part of the executive or administrative arm of government whereas the courts are the judicial side.
Jon:
So here comes that same distinction that the judges on the sentencing council can’t solve.
DW:
Yes. So here’s a piece of legislation. The Constitution says that the High Court has jurisdiction between residents of different states or between a state of a resident and a resident of another state. The Constitution then goes on to say that parliament make laws delegating some of the original jurisdiction of the High Court to any court of a state. So the answer would be yes, federal parliament can vest jurisdiction in a state court. But the High Court was asked can you vest jurisdiction in a state tribunal and the answer is no: you can’t.
Jon:
Simple solution, convert VCAT into a court. Although it becomes VCAC.
DW:
I’m sure they’d think of another name, Jon.
Jon:
I hope so.
DW:
So that’s the issue. So we have problems from time to time where people ring up and say I ordered some equipment from Sydney, and it came, where can I take it, what’s my jurisdiction? At the moment that could be done at VCAT until Wednesday the 18th of April.
And my last one, last week we had a question from a driver on the Mornington Peninsula who is on some fairly heavy medication and he wanted to know if he was to be involved in an accident and somebody died, what were his consequences?
If someone dies as a result of a car accident, the driver is normally charged with culpable driving. And a person drives culpably if she or he drives while affected by drugs to such an extent as to be incapable of exercising proper control over the vehicle. So the answer would be, if the level of drugs that you were taking is such that you can’t exercise proper control, then it’s a culpable driving charge.
Jon:
Alright, that may not be what they wanted to hear but that’s the answer.