Newsletter 165

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New framework to guide refugee settlement outcomes in Australia

The Refugee and Humanitarian Entrant Settlement and Integration Outcomes Framework, published by the Albanese Labour Government, outlines Australia’s goal for effective refugee settlement and integration.

The government has identified six categories in this framework that are essential for successful integration of refugees: economic engagement, health and wellbeing, language and digital literacy, education, housing and transportation, and understanding host culture. This framework is practical in nature and focuses on the objectives that can be achieved. 

The Albanese Government is advancing efforts to develop data sources to assess the effectiveness of settlement services and programmes and to monitor how refugees are settling under each of the areas in order to support the Framework. 

Based on feedback from the Settlement Advisory Council, settlement stakeholders, and individuals with disabilities, the Government has committed to revising the Framework over time.

Input from a broad consultation process that includes leading settlement agencies, refugee and community organisations, and people with firsthand experience as refugees was used to build the Framework.

Court Services Victoria fined $380k for ‘toxic’ workplace 

Court Services Victoria was found guilty by WorkSafe and assessed a fine of little under $380,000.

The organisation in charge of Victoria’s court system, Court Services Victoria (CSV), was found guilty and fined $379,157 for the widespread misconduct in the Coroners Court.

CSV entered a guilty plea to one count of failing to create and maintain a safe work environment.

Between December 2015 and September 2018, a number of complaints had been filed concerning the Coroners Court environment, including claims of a danger of exposure to traumatic materials, role conflict, heavy workloads, and inappropriate workplace behaviours.

Employees reported experiencing intimidation, bullying, favouritism, verbal abuse, disparaging remarks, breaches of privacy, and perceived threats to their career advancement.

Jessica Wilby, the principal in-house attorney, committed herself in September 2018 after three months on personal leave.

She was given a serious depressive illness diagnosis connected to her job at this time.

CSV acknowledged that it had not adequately assessed the risks to the psychological wellbeing of Coroners Court personnel and failed to identify those concerns.

An employer is required by law to “do everything they possibly can” to help their employees and “ensure they leave work each day no worse than how they arrived,” according to Narelle Beer, executive director of health and safety at WorkSafe.

“Everyone in an organisation has a part to play in fostering a safe and healthy workplace, but the creation of a positive culture is especially important and appropriate risk control measures depends on leadership from the top,” Dr Beer said. 

NAB, MLC allegedly ‘ripped out’ millions in super fund scheme, court told 

A court has been informed that thousands of beneficiaries of the MLC Super Fund were charged $165 million in fees for no service in order to allegedly further the interests of the board and the National Australia Bank.

The Federal Court was told that MLC members were charged fees and premiums to their superannuation accounts between 1 July 2016 and 23 September 2020 in an alleged “sorry state of affairs” to fund the commissions “given in full” to financial services licensees.

The commissions “came with no requirement for advisors to do anything” in exchange, according to the group members’ legal counsel.

“The group members had the privilege of paying for that, and the advisor can sit back in a comfortable chair and just watch the money hit the bank account,”

A trustee for the MLC Super Fund named NULIS Nominees is the target of the class action lawsuit. MLC was a division of the National Australia Bank (NAB) until it was sold to IOOF Holdings in May 2021.

In the framework of ownership, NULIS “ripped out” $165 million from members before stopping just a few months shy of a “hard ban” proposed in a January 2021 legislative.

The fact that NULIS filings focused on its fee-charging procedure but were silent on how charging members would benefit them, according to the attorney, was “ironic but perhaps not surprising.”

“That silence is deafening,” he said.

NT’s bid to overturn grant of land to traditional owners fails 

A suggestion that a number of land concessions be handed to the Aboriginal traditional owners was not overturned by the Northern Territory.

The proposal to transfer land in the north-west, close to the West Australian boundary, to persons the Aboriginal Land Commissioner (ALC) determined were traditional owners, was challenged in court by the territory’s government with support from the Commonwealth.

The NT’s request for review was denied on Thursday, October 5 in the late afternoon by Justice Mordy Bromberg of the Federal Court, who added that the case had “fascinating issues” presented.

Where does the sea end and the land begin is a crucial question. The Australian Northern Territory’s request for judicial review raises this intriguing dilemma, according to Justice Bromberg.

The ALC recommended the “Legune Area Land,” which comprises the estuaries of the Keep River and Victoria River, and the “Fitzmaurice River Region,” which includes the Fitzmaurice River estuary, under the terms of the Aboriginal Land Rights (Northern Territory) Act of 1976.

The NT claimed that the ALC misinterpreted the legislation and overstepped its authority when it recommended a grant of “land in the NT” as part of its narrowly defined role.

The Northern Territory Land Council, the third respondent, argued that the coastal low-water mark serves as the “boundary of the sea” for the purposes of the statute and marks the beginning of the land.

Justice Bromberg found the reasoning to be “consistent” with the ALC’s concentration “upon the line of the coast constituting the demarcation between land and sea” in reference to an argument in Risk v. Northern Territory of Australia, which considered whether the seabed of bays and gulfs in the NT can be the subject of a traditional land claim.

‘Extremely serious’ claims question Federal Court judge’s career history 

A man made “extremely serious” allegations that a Federal Court judge’s early career affected her judgement during the course of his racial discrimination complaint against the Fair Work Commission.

Loi Toma’s request for leave to appeal a judgement rendered by Justice Elizabeth Raper was denied by Justice Robert Bromwich of the Federal Court on the grounds of perceived bias resulting from Raper’s former professional and social connections.

Mr. Toma attempted to bring a claim of racial discrimination against the Fair Work Commission to the Federal Court after filing a complaint with the Australian Human Rights Commission.

As there was “no articulation or evidence of how the conduct constituted racial discrimination in the requisite sense and it sought to reagitate matters that had already been reviewed in court,” Justice Raper denied his motion in October of last year.

Mr. Toma cited Justice Raper’s swearing-in ceremony, which took place after the first return date of the case and was attended by the Fair Work Commission’s current president, in his attempt to obtain permission to appeal Justice Raper’s ruling. He said that no one informed the parties of this.

The president, Adam Hatcher, who was vice president at the time, was not the “guest of honour,” as Mr. Toma suggested, but it “almost certainly would not matter” if he were, according to Justice Bromwich.

“None of these circumstances have been shown to amount to any basis for a fair-minded lay observer to reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of what Her Honour was required to decide,” said Justice Bromwich.

Furthering his arguments, Mr. Toma claimed that Justice Raper’s conduct “confirms that her conflicts affected her judgement” and that the rejection of his appeal had demonstrated real bias.

“Such an allegation is extremely serious and should never be made upon the basis of nothing more than a party’s failing case, which is all that is in substance proffered,” Justice Bromwich stated.

“A merely negative outcome, which is all that is left, will not do.

“This aspect advanced for the grant of leave to appeal has no chance whatsoever of success, and to refuse leave to appeal on this basis could not possibly occasion any injustice,” the statement reads.

NULIS slams allegations of $165m super ‘scheme’ with NAB 

A superannuation trustee accused of taking $165 million from beneficiaries as part of a grandfathering commission “scheme” said the allegations were “inaccurate, unfair and contrary to principle”. 

“(We) categorically reject (the applicants’) assertion that NAB and NULIS had a plan in place starting in September 2015 to retain the grandfathering of commissions.

The submission of a scheme or a done deal has been described in a number of ways, and it has also been claimed that a procedure appeared to exist.

“Those allegations are very serious,” Mr. Thomas stated.

In his opening remarks, Mr. Thomas said that Mr. Brady’s member package “relatively remained unchanged” and that he was in “exactly the same position” following the subsequent financial transfer.

“The account remained the same, the benefits remained the same, the investment options remained the same, and the fees payable by Mr. Brady remained the same,” stated Mr. Thomas.

Regarding the applicant’s claims that the decision to permit the grandfathering of commission was hurried through and made in favour of NULIS and NAB, Mr. Thomas refuted those claims.

Instead, he emphasised how “careful, considered, and robust” the choice was.

According to Mr. Thomas, the material from the commission was presented to NULIS in April 2016; however, they declined it because they were dissatisfied. The court was informed that the commissions were only approved after NULIS obtained more pertinent information.

“This was to the board’s credit and is inconsistent with grandfathering being a ‘done deal’ after 2016,” Mr. Thomas stated.

Piper Alderman flags competing Qantas class action 

Piper Alderman, a business, informed the court that it was just a matter of weeks before it will file a competing class action lawsuit against Qantas for failing to reimburse consumers in full for cancelled flights during the epidemic.

Thomas Bagley, lawyer for Piper Alderman, said the company has spent six months looking into the large airline and may be ready to bring its own cases within the next two weeks when he appeared in the Federal Court on Thursday (12 October) morning.

The possible class action filed by Piper Alderman will conflict with those filed two months ago by Echo Law.

According to both companies, Qantas “enjoyed significant financial benefits at its customers’ expense” by offering travel credits or vouchers in lieu of full cash refunds for its cancelled COVID flights.

Due to “significant restrictions” and the possibility of expiration, the vouchers, according to Echo Law, were “much less valuable to customers than the refunds to which they were entitled.”

Piper Alderman’s class action was challenged by Echo Law attorney Dr. Oren Bigos, who informed the court that Piper Alderman “simply turned up and said they want in” without having identified a lead applicant or filed any paperwork.

According to Dr. Bigos, allowing Piper Alderman to interrupt the meeting will impede the process of developing a schedule.

“If the case is postponed, it will create a precedent where someone might show up without starting their own case. He has shown up without having his own proceeding. Dr. Bigos said.

However, Justice Murphy warned the two enterprises from acting contrary to the interests of the group members by merely pursuing a plurality fight rather than taking into consideration integrating the two.

It is almost never in the best interests of the group’s members, according to Justice Murphy; instead, “it’s in the funders’ or the lawyer’s”

Justice Murphy signalled that he would issue an order requiring the filing of any rival class actions before the court within the next two weeks.

Voice referendum Newspoll: Late swing for Yes campaign but nation poised to say No 

Despite a late surge towards a Yes vote in the last days of the campaign as both sides launch their final offensives ahead of the nation’s historic referendum, the Indigenous voice to parliament is destined to fail – and may even fall short of securing a majority in any state.

An exclusive Newspoll conducted for The Weekend Australian reveals a three-point swing in favour of a Yes vote over the past week to 37%, despite campaign executives from the Yes and No camps warning that a potentially low voter participation might create a closer outcome. Since the beginning of the official campaign, this is the highest level of support for a constitutional amendment that would give Aboriginal and Torres Strait Islanders a voice in parliament.

The lift in support is significant and will offer some optimism for the Yes23 campaign, but the ­improvement in the polls would not be near enough to overcome the current level of opposition. 

What went wrong with ABC’s public interest defence? 

What specifically went wrong with the national broadcaster’s public interest defence, which resulted in the ABC being ordered to pay a former commando $390,000 in damages?

The ABC and its reporters Joshua Robertson and Mark Willacy said during a nine-day trial that they believed it was in the public interest to expose those former special forces soldier Heston Russell was implicated in the murder of an Afghan prisoner.

The public interest defence had first been put out among a few others but had been rejected. Three days later, it was eventually reactivated and turned into ABC’s sole line of defence.

The circumstances behind the case against the ABC 

In a piece published in October 2020 by ABC, a US soldier claimed—using the alias Josh to protect his identity—that the November platoon, led by Mr. Russell, had killed a prisoner because they couldn’t fit on a chopper.

Josh asserted that he overheard voices saying “six prisoners, not seven” after hearing a “pop” on the radio.  In November 2021, the ABC brought up this accusation once again along with the assertion that the Defence Department had “confirmed” the existence of an ongoing criminal inquiry into the November platoon.

The Federal Court determined in February of this year that Mr. Russell had been slandered by the ABC because the ABC had broadcast claims tying him to war crimes and that he had left “fire and bodies” in his wake..

It’s crucial to remember that the October story “set the hare running” and wasn’t the subject of any lawsuits. Instead, it was the “catalyst” for the debate.

The Office of the Special Investigator (OSI) contacted the ABC, Mr. Russell revealed himself as the leader of the November platoon, and other significant developments took place after the publication of the October piece.

Allegations by ‘Josh’ and obligations of journalists 

Josh’s claims ought to have been supported, Mr. Russell repeatedly said in court.

Evidence that Josh’s memory had been “unspecific and fuzzy” and that there was little chance of establishing conclusively what had happened in Afghanistan helped to support this.

Josh’s recall, according to Justice Lee, “called for caution and pointed to the importance of verification and careful scrutiny”.

“He did not ascertain, from persons with experience in Afghanistan or anyone with any kind of expertise or on-the-ground military experience, whether Josh’s allegations were plausible. 

“Tellingly, many former soldiers gave unchallenged evidence that components of the allegations were not,” Justice Lee said. 

“A journalist acting reasonably would have done more to explore sources of potential corroboration.” 

Self-interest driving publication of allegations 

Justice Lee ruled that the November article’s writing failed to make a distinction between what was merely suspected and what was actually proven. This was undoubtedly one of Justice Lee’s most damning criticisms of the ABC and its journalists.

At the time of publication, Mr. Willacy “should have known that any statement of fact that defence had ‘confirmed’ an investigation was at best put too highly and at worst, misleading,” Justice Lee said.

According to Justice Lee, Mr. Willacy was concerned that the existence of an investigation might be announced on the website of the Defence Department, which would result in other media breaking the story first.

Justice Lee argued that even though Mr. Willacy had further justifications for thinking the November platoon was under investigation, this did not establish a “pressing need to publish the story.”

Indeed, Justice Lee stated that “the perceived urgency was, at least to a significant level, commercial and vindicatory.”

“I am confident that Mr. Willacy’s desire to disprove those who, in his words, had “came after [him]” and his reporting was a prominent but not sole motivation for the creation and subsequent urgent publication of the story.”

The disclosure was motivated in part by a desire to correct Mr. Russell in front of the public and to support Mr. Willacy’s reporting and ABC Investigations.

According to Justice Lee, it was “unreasonable” for Mr. Willacy and Mr. Robertson to believe that the publication of the claims was in the best interests of the public given all of these considerations, including the FOI request and Josh’s memory.