Law & (Dis)order: myths and legends in the dramatisation of lawyers for tv and film

In modern day film and television, lawyers are (mis)represented by two separate yet equally important types of media: accurate stories of the experience of being a lawyer, and the more prevalent, exaggerated, and disordered plot lines of legal drama. These are those stories. Dun dun!

Show: Suits

Myth: You can surprise the other party with evidence in court

I mean, you sort of can, but you shouldn’t…

The concept of ambushing the opposing party with incriminating evidence in court with the intention of “throwing them off” is commonly seen in representations of courts in both film and television. Suits are no stranger to this – as seen in season 7 episode 16, where Mike dramatically reveals in court that he was in possession of the opposing party’s insurance policy.

Busted: Discovery, or disclosure, in litigation requires both parties to “show their hand”, or disclose all documents that may be relevant to an issue.

Myth: You can validly enter into a contract while you’re drunk

Need a contract but out of paper? Head to the kitchen and draft a contract on a napkin like an intoxicated Keith Hoyt did in an intense poker game in season 2 episode 6 of Suits. With all elements of a contract – offer, acceptance, and consideration – being satisfied, in the show Hoyt’s loss in the game meant that he lost his company. At the time Hoyt had an estimated BAC of 0.16%.

Busted: When someone is intoxicated to the point that they cannot understand the nature of the contract they’re signing, the contract is unenforceable – with a few exceptions around the edges.

Show: How to get away with murder

Myth: A lawyer can waive legal professional privilege

One of the biggest transgressions in HTGAWM is when university criminal law professor and lawyer Annalise Keating invites her students into a meeting with her client charged with murder – and then asks them to think of potential defenses two days out from trial.

You know, just like every unpaid internship ever.

Busted: This one, too, is busted. LPP is a privilege belonging to the client. It’s not for a legal professional to determine when to waive it. Especially when a client is not fully informed as to exactly what they might be consenting to. In Australia, Annalise’s conduct could very well amount to professional misconduct.

Show: The Twelve

Myth: Wearing inappropriate clothing to jury selection can influence whether a party makes a challenge

In local Australian production, The Twelve, a juror wore clothing to jury selection that she thought might influence whether she was selected for jury duty.

Confirmed (partly): The only point at which a party to a jury trial is able to challenge the selection of a juror is when those called by random ballot present for swearing in. At that point, with little more information than the appearance of the potential juror, a party may make a challenge to their selection. But each party only has a certain number of challenges.

For more on The Twelve check out Hearsay: The Legal Podcast’s own Sidebar episode Legal dramas – fact or fiction? Dissecting Australia’s smash hit legal drama The Twelve. And if you need more information, Hearsay’s CPD offering for Australian lawyers has you covered. Check out the list of topics on the Episodes page.

By: Hearsay: The Legal Podcast with research by Sophie Yeh, Sales Consultant

How Angus the miniature schnauzer overcame the strata committee

After four and a half years (or about 30ish dog years), the NSW Court of Appeal (NSWCA) likely paws-ed before handing down its judgment concerning Angus, a then-13-year-old mini schnauzer.

Angus’ owners, Jo, and Lee Cooper sought to have a strata by-law forbidding pets in their prestige high-rise apartment quashed in accordance with the powers in s 150 of the Strata Schemes Management Act 2015 (NSW) on ground it was “harsh, oppressive or unconscionable” under s 139(1). At first instance, NCAT agreed with the Coopers.

However, that decision was overturned on appeal, prompting the Coopers’ to pursue the matter to the NSWCA – where they were ultimately successful.

Cooper is important as a reminder to strata committees and communities that strata by-laws must have reasonable limits, and that such laws ought to maintain “a rational connection with the enjoyment of other lots and the common property” [Cooper at 61]. It is not acceptable to run any sort of “majoritarian dictatorship” [at 48] despite the beliefs of many strata el presidents who rule their schemes using fear, proxy votes, and fervour.

Adding strength to this judgment, NSW subsequently enacted the Strata Schemes Management Amendment (Sustainability Infrastructure) Act 2021 (NSW), which provides that owners and corporations will not be able to unreasonably deny permission for residents to have pets.

One newly adopted scheme to circumvent the Cooper decision has been domination over the strata community pet approval or application process. This avoids the outright blanket ban by requiring pet-owner applicants to apply to the strata committee, providing references for their pet, and requesting approval for the pet to stay.

Ostensibly, this weeds out the loud and fearsome troublemaker pets, but in reality, it can be a blanket ban by proxy as committees deny, deny and deny to continue their majoritarian rule.

– Cooper v The Owners — Strata Plan No 58068 [2020] NSWCA 250

For more on the Cooper decision, and on the powers and operations of strata committees check out the Hearsay: The Legal Podcast episode featuring Marcus Carbone and Robert Pietriche. Hearsay allows Australian lawyers to claim their CPD, their way – all on the go.

By: Tim Edmeades, Paralegal

5 cases that locked the nation: COVID edition

From lockdowns to night curfews, travel bans, vaccine mandates and density limits, the COVID-19 years presented our courts with an unprecedented variety of legal oddities.

In perennial southern hotspot Danistan, Niall JA of the Victorian Supreme Court took the boot to a “business owner’s” freedom of political communication gripe against Premier Dan Andrews. Meanwhile, Thawley J of the Fed tackled legislative restrictions on the common law right of re-entry to Australia arising out of the Commonwealth’s India travel ban. Elsewhere, the HCA put down Clive Palmer’s toddling attempt to cross the West Australian demilitarised zone.

So stuff a cotton bud up your nose – or get one stuffed down your throat (no judgement) – put your pyjamas back on, and tuck into a pangolin; hark back to the collective trauma of the COVID years with this retrospective into some of the weirdest cases that locked the nation.

“Stay close, go nowhere”: Gerner v State of Victoria [2020] HCA 48

The combatants in our first oddity presented to the High Court in its original jurisdiction in November 2020, bearing with them the question of whether the Constitution contained an implied freedom of movement internally in an individual’s state of residence. In sum? Yeah, nah… to the tune of 5:0.

Our plaintiff, restaurateur and sommelier one Gerner, may have bitten off more than he could chew bringing this particular question to the HC. Gerner asked the Court to invalidate certain Victorian COVID-19 directions which restricted the movement of people within Australia’s penultimate great state.

In throwing the sink at the issue, Gerner asked the Court to consider whether such a freedom was: i) implied by the text and structure of the Constitution and necessary for preserving its operation; ii) implied as part of the implied freedom of political communication, and iii) implied as aspect of free interstate trade.

The HC gently informed our erstwhile wino that he shouldn’t drink and drive – swiftly pointing out that Gerner’s statement of claim did not allege or particularise facts supporting a conflict between the impugned Victorian directions and political communication or interstate trade. Whoops.

But even on the issue that did receive judicial airtime, the Court was not convinced. The majority found no basis in the text and structure of the Constitution which could restrict legislative power to circumscribe freedom of movement.

Back to the living room, Vic!

Across this new divide: Palmer v Western Australia [2021] HCA 5

With the tactical brilliance of a Russian special operation, Clive Palmer fumbled his way into COVID-19 legal folklaw with his blitzkrieg attempt to cross the West Australian demarcation line.

Throw your mind back to 2020; born-again statist, WA Premier, COVID-phobe, and New South Welshman Mark McGowan took inspiration from the breakup of Pangea and all but separated the Lone Star State from the rest of the continent, denying entry to almost all but the most West Australian among us.

More particularly, on 5 April 2020, the Quarantine (Closing the Border) Directions (WA) (Directions) slammed into full effect – with the result that the WA border was closed to everyone except those with an exemption. Well-known man-of-the-people Queensland magnate Clive Palmer, sought and was denied an exemption to travel into WA, and took umbrage at being denied access to the western front of his fiefdom.

Thus was the decision in [2021] HCA 5 born, as the spurned industrial titan sought to bend the Breakaway State to his will. Properly before the Court was the question of whether the state of emergency powers in ss 56 and 67 of the Emergency Management Act 2005 (WA) (authorising the Directions) were an impermissible impingement on interstate intercourse under s 92 of the Constitution.

The HCA fell on the conclusion that “the differential burden capable of being imposed by ss 56 and 67 of the Act is reasonably necessary where an emergency is constituted by a hazard in the nature of an epidemic” (per Gordon J at [209]; see also Kiefel CJ & Keane J at [77]). Meaning Palmer’s denial of entry to WA was, at that time, entirely permissible.

Keep huffing that ivermectin, Clive.

Prison island – LibertyWorks Inc v Commonwealth of Australia [2021] FCAFC 90

LibertyWorks – whose emblematic eponym foreshadows their position and politics in respect of the closure of Australia’s international borders – challenged the validity of the equally ridiculously named Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth) (Travel Ban Determination).

The Travel Ban Determination, if it wasn’t already part of your COVID-19 trauma, closed the border for all outbound Aussies except those in possession of an exemption from the Australian Border Force (ABF) – giving new meaning to the party of (cough) “personal responsibility”.

In order to get an exemption, those of us among the plebeian masses were required to demonstrate some kind of exceptional circumstance – which amounted to demonstrating a “compelling reason” to leave to the ABF. In November 2020, a LibertyWorks employee applied to travel from prison island to London to assess conference venues for a political chinwag. Result: not compelling enough; application denied.

Standing thus engaged, LibertyWorks challenged the Travel Ban Determination on the ground it lacked authority or was inconsistent with the Biosecurity Act 2015 (Cth).

In dismissing the challenge, the Court took particular umbrage with LibertyWorks’ proposed construction of s 477(6) of the Biosecurity Act, approving the Commonwealth’s submission that LibertyWorks’ interpretation would “eviscerate” the Minister’s power, stating “[i]t would at least emasculate it. And it would frustrate Parliament’s clear intention in enacting the emergency powers”.

Homeward Bound; or not – Newman v Minister for Health and Aged Care [2021] FCA 517

From can’t get out to don’t come in… the subject matter of Newman infected waves of Australians with despair.

In issue was the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 (Cth) (Re-entry Determination), which criminalised entering Australia if you had been in India in the last 14 days.

Mr Newman, a dual UK-AUS citizen at that time residing on a visa in India, wished to return home to Australia, and was thwarted by the Re-entry Determination. The relevant prayers for relief answered in this decision were that there were procedural failures in the making of the determination, and that there was a fundamental common law right of re-entry to a country of citizenship. Spicy.

So about that common law right? Yeah, it exists, but like other rights it can be abrogated by legislation. That is, abrogated by a positive law expressly restricting access to Australia (at [76]).

In the view of Justice Thawley, it was a necessary incident of the scheme contained in Ch 8 of the Biosecurity Act 2015 (Cth) (containing the provisions authority the Re-entry Determination) that an Australian could be prevented from entering the country (at [82]).

Hit the road Jack (boots) – Cotterill v Romanes [2021] VSC 498

Returning once again and finally to Australia’s penultimate great state; Danistan. Given the pattern of judicial decisions in this article no prizes for guessing the outcome of this lockdown challenge.

Victoria suffered an inordinate amount of pressure to contain the spread of COVID-19 within its borders for the health of the rest of Australia, and it’s no surprise that many of Australia’s agent provocateur class kicked up a fuss over the state’s restrictions. Ms Cotterill was no exception.

On 13 September 2020, while out exercising during a lockdown, she carried a sign which read “toot to boot” Commissar Dan Andrews. She was given an infringement notice. Exercising, permitted. Protesting… not so much. She contended before the court that the relevant health directions were an impermissible infringement on the implied freedom of political communication found in the Constitution.

The VSC gave the boot to the arguments advanced by Ms Cotterill. Despite being a “significant obstacle” to political activity, quoting the HCA’s Palmer, the Court noted that the importance of the protection of health and life justified the severity of the measures.

The COVID-19 years challenged the public and vexed the bench with a wild and woolly start to the 2020s. Cross your fingers, touch wood, get vaxxed, and strap in – money’s on the legal oddities are bound to continue throughout the decade.

The Hearsay: Soapbox is an add-on to Hearsay: The Legal Podcast, a CPD resource for Australian lawyers. Hearsay allows solicitors and barristers to obtain their CPD points when convenient to them.

By: Alexander Ross Davis, Producer, Hearsay: The Legal Podcast

Have you Heard the latest? (update)

After six weeks of courtroom drama akin to that of a Hollywood film, the world finally has an answer in the peculiarly American saga of Depp v Heard, with (surprisingly) Johnny Depp coming out on top and intact (with the exception of his finger).

The seven-member jury found in favour of Mr Depp, unanimously concluding that Ms Heard had defamed him in an op-ed she wrote for the Washington Post in December 2018. The total damages awarded to Mr Depp ($US10,350,000) were a far cry from the original claim of $US50 million. Ms Heard did not lose entirely, as she was also awarded a figure of $US2 million in her counterclaim for one count of defamation made by Mr Depp’s former solicitor.

In a role we are sure neither of them anticipated playing, the courtroom drama was certainly entertaining and thought-provoking – some calling it Depp and Heard’s best performance yet.

For a more in-depth look at Depp v Heard, or defamation generally, check out Hearsay: The Legal Podcast’s own Sidebar. Episode 1 of Sidebar tackles the Depp v Heard trial, while Episode 2 takes a down to earth legal lens to defamation claims in Australia. You can catch both on Spotify and Apple Podcasts – and remember the original Hearsay can get Australian lawyers their full 10 CPD points!

By: Constantina Papos, Associate, Assured Legal Solutions

How to get deported: Novak Djokovic

As the tennis season roars back to life at The Championships and the US Open, throw your mind back to the beginning of the tennis – and legal – year when the Djoker became the Djoke.

The fault heard around the world

After competing in 2021 for a single-year Calendar Slam (holding each of Wimbledon, the Australian, French, and US Opens), the tempestuous Serb fell to Russian Daniil Medvedev at the final hurdle. Djokovic commented that although he had failed, it was the first time he felt like the US crowd – and tennis world – was truly behind him.

Inevitably, pride goeth before the fall.

Basking in public adoration, in January 2022, the fervent vaccine sceptic posted a grinning airport selfie on Instagram stating he had a COVID-19 vaccination “exemption permission” to play the 2022 Australian Open. On the morning of 5 January 2022, he touched down in Melbourne and was detained for the first time by the Australian Border Force.

Djokovic v Minister for Immigration [2022] FCAFC 3

What resulted was a quasi-diplomatic incident as Serbia’s greatest modern cultural export was unceremoniously sent packing. But Australia issued a Class GG Subclass 408 Temporary Activity Visa in November 2021; so how and why did Djockovic find himself on a plane back to Europe?

At play was section 133C(3) of the Migration Act 1953 (Cth) (Act), which permits the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) to cancel a visa on the grounds of public interest – such as, say, where a vaccine sceptic tennis-GOAT is likely to win one of Australia’s premier sporting events and in doing so unintentionally rabble-rouse.

The power in section 133C(3) must be exercised by the Minister personally. That is, in contrast to the operation of many other government powers, it may not be exercised by a delegate of the Minister (for example, an employee of the relevant department). Section 133C(3) is often used as a catch-all because the power need not be exercised according to the rules of natural justice (s 133C(4)).

The section requires that the Minister be satisfied of two things: first, that there is a ground to cancel the visa arising under section 116 of the Act, and second, that it’s in the public interest to cancel the visa. The key to the Minister’s decision is not the fact of either requirement but that the Minister is satisfied.

The FCAFC ended up rejecting Djokovic’s three grounds of complaint, finding broadly that:

It was open to the Minister to conclude that Djokovic’s stance on vaccination was “well known” and that he was broadly opposed to it.

It was open to the Minister to conclude Djokovic’s presence in Australia could foster anti-vaccination sentiment.

The Minister’s decision was not impacted by unreasonableness because he had failed to consider the binary counterfactual presented by Djokovic’s legal team.

Regardless of your vaccine views, your views on Novak Djokovic, or your views of the Minister’s extreme powers, the tragicomic political mire of Djokovic’s arrival and deportation did not reflect well on us or our political class.

Game, set, and match.

Soapbox is a Hearsay: The Legal Podcast add-on. If you liked this article why not try our CPD platform for Australian lawyers at htlp.com.au. Catch the latest episodes of the podcast on the Episodes page, but if you’re not quite ready for all that continuing legal education, try Sidebar – the fun, free, no-CPD version of the podcast.

By: Alexander Ross Davis, Producer, Hearsay: The Legal Podcast

It’s time to decriminalise the world’s oldest profession

Sex work has a long history – not for nothing is it, tongue-in-cheek or otherwise, called the world’s oldest profession. In March 2022, Victoria joined the Northern Territory and New South Wales in decriminalising sex work.

But what exactly does “decriminalisation” mean? It’s one of those perennial questions without a simple answer. For Victoria, beginning 10 May 2022, a raft of changes came into effect in the state decriminalising certain parts of the sex work industry, including street-based work, certain advertising, and working while infected with an STI.

The remaining patchwork criminalisation of sex work across the rest of Australia perpetuates a harmful stigma which indirectly, and wrongly, affords protection to potentially violent customers because workers live in fear the of law.

Breaking bad… taboos

Sex workers have long been excluded from public discourse thanks to puritanical and anachronistic ideologies which attempt to erase their very existence. The criminalisation of sex work is one offshoot of such limited worldviews.

The avoidance of public discussion about traditionally “taboo” topics such as sex work has historically prevented, and is preventing, the access to justice that sex workers need and deserve. Latent social anachronism towards sex work is especially confounding given many workers identify as members of hot-button vulnerable groups, such as those from LGBQTIA+ community, or from migrant backgrounds.

It’s especially disheartening that over the past few decades and multiple waves of feminism, sex workers are regularly left out of vital feminist conversations, despite being one of the largest victims of gender-based violence. Breaking down barriers and engaging in these conversations is fundamental to the functioning of our legal system.

The Sex Work Decriminalisation Act 2022 (Vic)

On 22 February 2022, Victoria passed the Sex Work Decriminalisation Act 2022 (Vic) (Act). The legislation is a welcome change because it increases the legal protections available to sex workers in the state. Decriminalisation in this particular Victorian sense generally means the repeal of existing offences and penalties for consensual sex work.

The Act is split into two effective waves, with the first commencing on 10 May 2022 and the second in December 2023. The first wave of legislation decriminalises certain aspects of the industry such as street work, while the second wave focuses on abolishing the existing licensing regime, changes to planning controls, and the repeal of specific brothel and escort provisions in the Public Health and Wellbeing Act 2008 (Vic).

Importantly, the legislation is government recognition that “sex work is legitimate work and is better regulated through standard business laws”. To that end, the industry will be monitored and regulated by Victoria’s current workplace health and safety watchdog – WorkSafe Victoria.

There is still a long way to go with adequate legal protections for sex workers across all Australian states and territories, and an even longer way to go with eradicating the harmful stigma around sex work, but the future is looking bright with a number of passionate advocates leading the voice of reform.

Have you completed your mandatory continuing legal education this year? Hearsay: The Legal Podcast is a CPD provider for Australian lawyers which publishes up-to-date, on-the-go continuing legal education for solicitors and barristers.

By: Zahra Wilson, Paralegal, Hearsay: The Legal Podcast

How to unmask an anonymous troll (according to the government)

On 28 February 2021, then Prime Minister Scott Morrison announced in a media release that the government would be proposing legislation that will give courts the power “to force global social media giants to unmask anonymous online trolls and better protect Australians online“.

The Online Safety Act 2021 (Cth) (Act) passed later that year and made it easier for the targets of online comments to commence defamation proceedings against people criticising them online.

Step 1: Be a politician

Coincidentally Christian Porter, Peter Dutton, Andrew Laming, Anne Webster, and John Barilaro commenced defamation proceedings in 2020/21. So much for speaking truth to power.

The government claimed that the Act was a “world-leading move”, however, there was a foreign government that pipped us to the (political) post: Saudi Arabia – the renowned bastion of free speech and human rights.

Step 2: Invest the internet police with relevant power

Our Act expanded the powers of the eSafety Commissioner so that they are now able to fine or penalise individuals who post cyber-abuse material that targets adults. Cyber-abuse material targeted at an adult is defined as material posted online that “an ordinary reasonable person would conclude… [it] was intended to have an effect of causing serious harm to a particular Australian adult” and that same person “in the position of the Australian adult would regard the material as being, in all the circumstances, menacing, harassing or offensive.”

If material is deemed as cyber-abuse material then, under section 89, the Commissioner can provide the person who posted the offending content with 24 hours to remove it or risk a $110,000 fine. It’s at the discretion of the Commissioner whether this notice is issued after a complaint has been made.

Most importantly for anonymous internet dwellers, under section 194 of the Act, the Commissioner can require social media platforms to hand over users’ private data including their identity if it is relevant to the operation of the Act. The Commissioner is given full discretion in determining when a user’s identity is relevant to the Act.

If a social media platform doesn’t comply with forking over the user data, it could potentially cop a $22,200 fine. This may seem like a drop in the bucket, however, if a social media platform decides that they don’t want to violate users’ privacy then it’s essentially $22,000 in the Commissioner’s back pocket every time they ask for it.

Step 3: Go after the basement dwellers

Now that a troll’s personal data has been exposed, they can be sued for defamation. In Australia, a plaintiff doesn’t even have to prove that the statement is false. They can take a public stance that the statement isn’t true AND they don’t have the added baggage of having to prove it! They don’t even have to be named in the offending post. How good!

Then, they can drag the troll through the court system and make them rethink the day they foolishly decided to pipe up and voice their criticisms. Once they’ve had enough, it’s likely they’ll be begging to settle outside of court and the case will get dropped. Too easy!

The people more likely to be affected by this are the people whose identities are being revealed at the eSafety Commissioner’s discretion. This paired with politicians’ seeming propensity to sue for defamation, has the potential to be a deadly mix for people who dare criticise the people in power.

The Hearsay podcast is a CPD podcast for Australian lawyers in the format of your favourites from the podcasting world. Hearsay takes an experienced guest through an area of their expertise to get you fun, convenient CPD the way you want it. Catch all the Episodes on the website.

By: Jacob Malby, Legal Researcher, Hearsay: The Legal Podcast