‘Barristers Launch Broadside at ACU; Basketball League Owners Hits Back with ‘Grievance Notice”, published in Business, the Australian

27 March 2025

It was front page news in December – on Christmas Day, no less, a deadzone for headlines of any kind, even the landing of alien spacecraft – that the Australian Catholic University was facing a compliance probe from the country’s higher education regulator, known as TEQSA.

This was bad news for the university. Embarrassing, consequential, and it broke days after TEQSA’s CEO, Mary Russell, emailed a shopping list of grievances to ACU vice-chancellor Zlatko Skrbis.

Her correspondence warned that if questions weren’t satisfactorily answered, the university’s bid for re-registration could be placed in jeopardy. Nearly four months later, that inquiry continues, the decision on registration pending.

And now comes an intriguing development. A bevy of barristers and publicly notable figures have put their names to a 20-page letter addressed to Russell, at TEQSA, outlining their own litany of concerns with why ACU may have breached the “standards for continued registration”.

And they’re not short of clout, either. They include former NSW attorney-general Greg Smith SC, Jeffrey Phillips SC and Margaret Cunneen SC, NSW shadow treasurer Damien Tudehope, and barristers Gray Connolly, Philippe Doyle Gray and Sophie York.

“We believe,” they write, “that, in the current circumstances, ACU is not a candidate for automatic renewal of its registration and should be subject to a conditional renewal of registration. This should be for a period of three years rather than seven years.”

Armed with information provided by current and former ACU officials, this contingent says it wrote to ACU’s leadership months ago urging an independent investigation of these whistleblower complaints. The university rejected that proposal.

“At this point we are concerned that the only way to restore confidence will be a public inquiry into these threshold standards and the governance culture at the

university,” the letter says.

Matters highlighted include last year’s shambolic appointment and termination of – Professor Kate Galloway, the university’s Dean of Law, over her history of pro-

abortion positions in academic papers, an outcome that led to a confidential settlement of almost $1.5m in compensation.

“The use of public monies to remedy a hiring mistake by the vice chancellor due to religious considerations is beyond the appetite of the taxpayer, the ACU community and we respectfully submit should similarly be so for TEQSA,” the letter says.

Other objections were cited with the management of ACU: the reappointment of Skrbis “more than a year before the expiry of his contract”; “compelling accounts” of bullying within ACU’s Senate leadership body; and allegations that Skrbis and ACU chancellor Martin Daubney had “soured relations” with ACU’s “chief institutional backers”, but also that they had expressed an “antipathy to the church itself and aspects of its teachings”.

Asked to respond, ACU dismissed much of the report, but it took care to single out for dispute the shade cast over the reappointment of Skrbis, which it said was a “thorough and carefully considered” over two months (even if that was by Daubney, his chief sponsor, and the one guy who wanted Skrbis reappointed), but also the claim that senators had been bullied. No formal complaints had been received, it said.Moreover, the report alleged that ACU had leveraged international enrolments to prop up its budget, attacked its deteriorating financial position – a $35m loss for the 2023 financial year – and noted a blowout in costs from the use of KordaMentha consultants.

Those advisers are alleged to have provided “weekly advice sessions direct to the vice chancellor”, the report said, noting that the ­ nature and terms of that arrangement “remain unclear at the Senate level”.

An ACU spokeswoman didn’t deny the characterisation, but said the $3m figure nominated in the report was “wildly incorrect” and went on to say the university had “reduced its expenditure on consultants”, so make of it what you will.

“The Senate has full confidence in ACU’s governance and management processes, and in the university’s compliance with the higher education standards,” the ACU official said, adding that the report – which she called a “20-page manifesto” – contains “verifiably false claims”.

What a pity that TEQSA doesn’t agree. And why would they?

The confidential and disgraceful treatment of Galloway is verifiably true and documented in a paper trail that we published across a series of columns last year. The university’s dire financial ­ position and reliance on inter­national enrolments – alongside its previous decade of healthy profit and loss – can be confirmed with a glance at any of ACU’s annual reports.

And if one needs further proof of ACU’s broken relationship with its stakeholders, look no further than Sydney Archbishop Anthony Fisher, who wrote so damningly to Skrbis and Daubney in November, saying: “I find myself ashamed of the university’s recent performance.”

Kestelman hits back

And while we’re writing about the launch of broadsides …Looks like Larry Kestelman has finally cracked it with Illawarra Hawks owner Jared Novelly, the NBL proprietor issuing Novelly with a “notice of grievance” on Thursday that could actually see him barred from running his team.

Is it revenge for Novelly’s mutinous plan of a week ago to buy out Kestelman and try to turf him from his NBL ownership – with a minimally attractive offer of $44m and the carrot of a trophy to be named in his honour? Yes, obviously.

The whole thing was totally insulting.

Plus the Novelly offer was served on a bed of unsubstantiated allegations that claimed Kestelman’s ownership of the league had screwed the teams out of their fair dues.

Worth noting is that Novelly’s buyout plan was first publicised here, in this column a week ago, but it was only transmitted formally to Kestelman on Wednesday night.

And then the grievance ­ notice was sent back to Novelly literally the morning after.

Another coincidence, we think.

Tahmoor who?

Unpaid creditors have been crying foul at Sanjeev Gupta’s Tahmoor colliery for the better part of six months, so you’d think the operation would have a pretty solid handle on who they are.

But maybe not. Margin Call hears that GFG’s accounts department sent round an urgent plea this week for staff to update the ­ accounts system ahead of a deal to refinance the mine, so creditors can start getting paid as soon as the money arrives.

On the one hand, that’s a positive sign for the 600 or so workers at Tahmoor, the bulk of whom were stood down in February after cranky suppliers stopped delivering goods due to non-payment.

Then again, if GFG still doesn’t know who Tahmoor owes money to when it’s in this much trouble, perhaps that’s part of the problem? At least it wasn’t the accounts department offering to trade tax advice for urgently needed supplies of toilet paper …

Meanwhile, we hear Gupta has hit the pavement in New York seeking to lock down details of the long-promised financing deal that will solve all of his problems.

Good luck to the lenders.

From the Australian – Ellie Dudley 3rd August 2023

Employment lawyers have sounded the alarm over an influx of disputes between workers and their employers who do not agree on the proposed Indigenous voice to parliament, warning employees to be careful posting political content on social media or risk losing their jobs.

Companies such as Qantas, Clayton Utz, Transurban, BHP, Rio Tinto, NAB, Woolworths and Lendlease have publicly endorsed the voice and will advocate for the Yes campaign in the lead up to the referendum at the tail end of this year.

Swaab workplace relations partner Michael Byrnes told The Australian employees with an opinion that differed from the public stance of their company will be a “flashpoint” for employment law as the votes nears.

“If we live in a society where employees have to mirror the views of their employer then this becomes a complete dystopia,” he said. “Say I was a Qantas employee, and I posted on social media account something anti-voice, and the social media account identified me as a Qantas employee. That could be cause for disciplinary action.”

Mr Brynes, who has worked in the industry for more than 20 years, said employers must navigate what constitutes unlawfully forcing a worker to support the company’s stance on the voice – be it for or against – and what is legally allowed. “Obviously an employer can’t direct an employee as to how they vote or direct employees to wear shirts or engage in activities that actively promote the voice,” he said. “But it could extend to directing them to an information session, because even if you don’t agree with the voice you can still go to an information session.”

Employment law silk Jeffrey Phillips SC said he expected legal disputes to arise in the same fashion they did during the same-sex marriage plebiscite.

In 2017 small business owner Madlin Sims sacked a staff member who came out in support of the “no” campaign against same-sex marriage. At the same time. Ms Sims, who runs a party entertainment company in Canberra, said she was taking a stance on the issue, likening it to employing a staff member who posted racist material online. The sacked contractor was a woman who took photos of events often posted them on Facebook.

“Today I fired a staff member who made it public knowledge that they feel ‘it’s okay to vote no’,” Ms Sims wrote on social media in September 2017. “Advertising your desire to vote no for SSM is, in my eyes, hate speech. Voting no is homophobic. Advertising your homophobia is hate speech. As a business owner I can’t have somebody who publicly represents my business posting hate speech online.

Mr Phillips said it was “inevitable” instances like this would repeat themselves throughout the voice campaigns. “Especially if you work for one of these large corporations and don’t align with their values,” he said. “It’s a potential flashpoint, there’s no doubt about that. Any employer would need to handle it sensibly and many wouldn’t be able to do so.”

Jeffrey Phillips, SC

State Chambers 

From the Australian – 3rd August 2023

This week The Australian reported on Emma Covacevich, the first female chief executive of national law firm Clayton Utz. Her policy on achieving gender parity is simple: “It’s about more women coming and more men going out.” On the face of it such a tag line is attention grabbing, but is there not a danger of getting what you wish for? What does such a policy say to male senior associates vying for partnership at Clayton Utz? Will they not be tempted to jump ship for more “sunlit uplands”?

However if one follows the modern lunar left’s view of gender, what does this Clayton Utz policy mean by gender? The biological sex one assigned at birth or the social construct of gender? Affirmative action based on gender is widespread within the large law firms and the bar associations across the country. At the NSW Bar and elsewhere this has been labelled the Gender Diversity Briefing program, of which I have been a long-term critic. That policy was introduced after an unscientific earnings survey, as well as counter “unconscious bias” by solicitors briefing male barristers. This program seeks to sign up chambers, law firms, large corporations, government bodies and others to allocate more briefs to female barristers as senior or junior counsel. In my view such a policy discriminates on the basis of sex and is not in the best interest necessarily of the client.

Permit me to offer an example. A male barrister in my chambers successfully won a case. The losing side then appealed. Despite the male barrister’s success, his deep understanding of the matter, both factually and legally, he was not briefed on the appeal. A female barrister, with only a slight connection to the speciality, was briefed by the solicitor, who needed to boost the firm’s KPIs for gender diversity briefing. Such a switch would have added significantly to the costs by getting fresh counsel to grapple with the case and to defend the appeal. Can one ask, rhetorically, was that choice of new counsel based on gender acting in the best interests of the client? Anecdotally, other male barristers have been removed from briefing panels because of their gender. One of the most powerful interest groups at the NSW Bar is the Women Barristers Forum. Its perceived raison d’etre is more work for female barristers. However, many women at the Bar do not need such regulatory, market-distorting assistance provided by the Gender Diversity Briefing and similar affirmative action programs.

Many female barristers went to the best schools, the best universities, both Australian and international; were associates at large law firms or with senior judges. They do not need additional help by such bien pensant programs. For the Women Barristers Forum to suggest it, and for them to take it, amounts to unalloyed rent seeking. Recently, the US Supreme Court overturned affirmative action policies for university admissions based on race. In a case challenging admission policies of Harvard University and the University of North Carolina, Chief Justice John Roberts, writing for the majority, said for too long universities had “concluded, wrongly that a touchstone of an individual’s identity is not challenges bested, skills built or lessons learned but the colour of their skin. Our constitutional history does not tolerate that choice.” If one employs that principle in the legal community based on gender one would ineluctably arrive at the same result. New partners at law firms should be chosen by their “challenges bested, skills built and lessons learned”, not their gender.

The same applies to the Bar. If I were in serious criminal strife I would want Margaret Cunneen SC, or if I were in a defamation trial I would want Sue Chrysanthou SC, to appear for me. Not because they are women but because they are the best at what they do. No doubt at some sumptuous dinner Covacevich will get a legal Logie award for her significant contribution to diversity in the profession.

At the annual Women Barristers Forum cocktail party celebrating new female silks, I will probably get the WBF version of the Ernie Award for this article. It perhaps should be called the Roddy Award, named after Roderick Pitt Meagher, the bane of the feminist cabal, I would be delighted to receive a Roddy.

Jeffrey Phillips, SC

State Chambers 

From the Australian - Rhiannon Down and Sarah Ison

Labor’s proposed crackdown on misinformation and disinformation on the internet is “inherently wrong” and a “dangerous piece of legislation” that could chill freedom of speech in Australia, social media giants and senior lawyers warn.

The world’s biggest social media company Meta – the owner of Facebook and Instagram – told MPs on Tuesday the Albanese government’s proposed laws on misinformation and disinformation “could be abused” and inadvertently harm free and legitimate expression if they were to be passed by parliament.

The US-based tech giant’s ­Australian head of public policy Josh Machin told a select committee that Meta was concerned about the additional powers the legislation would give to the nation’s media watchdog to set “binding standards” around mis­information and disinformation with tough penalties.

“We can see some potential for that power to be abused, or for it to be used in a way that inadvertently chills free and legitimate political expression online,” Mr Machin said.

Twitter head of global government affairs Nick Pickles said the pendulum was swinging towards greater censorship across the globe, with many countries implementing broad laws with high ­financial and criminal penalties “that will have a chilling effect on free speech”.

“When these kinds of regulations are being considered, laws need to be drafted as narrowly … as possible with robust transparency and due process because without those you will see a significant deterioration in free expression,” Mr Pickles told the hearing.

Top lawyers, including former NSW Supreme Court judge and anti-corruption advocate Anthony Whealy, told The Australian it would be “easy to politicise the project and equally damaging to democracy”.

“The usual definitions of truth and untruth are very difficult to apply and it’s all very subjective,” he said. “We need to proceed with extreme caution.”

Labor is now facing a war on all fronts if it continues to pursue its legislation that will give the Australian Communications and Media Authority elevated powers to fine social media giants millions of dollars for misinformation and content it deems “harmful”, with Meta, Twitter and lawyers joining Coalition MPs in voicing strong concerns about the proposal.

The “Orwellian” legislation has also come under fire from a group of Coalition frontbenchers for being “straight out of (the novel) 1984”, including James Paterson, David Littleproud, Dan Tehan, Barnaby Joyce and Bridget McKenzie.

Senator Paterson, who chaired Tuesday’s committee hearing into foreign interference on social media, said that censorship was not the answer to tackling online misinformation.

“Social media platforms including Meta are right to be cautious about the government’s proposed mis and disinformation laws,” Senator Paterson said.

“The evidence before the Senate select committee on foreign interference already indicates there are better ways to tackle this problem than censorship, and (we) will provide recommendations for the government soon.”

Tech giants including Meta, Twitter and TikTok are already signatories to a code of practice to combat misinformation administered by industry body DIGI, which was launched in February 2021.

Under the proposal, digital platforms will continue to be responsible for moderating content on their services but the regulator will be able to seek information from tech companies about the measures they are taking to address misinformation and disinformation, and develop an industry-wide standard or a tougher form of regulation if self-regulation falls short.

Examples provided with the draft included misinformation that undermined the impartiality of the Australian Electoral Commission ahead of an election, misinformation that caused people to ingest bleach to treat a viral infection, or spreading misinformation about water-saving measures during a drought.

Communications Minister Michelle Rowland said misinformation posed a threat to the safety and wellbeing of Australians and the government would work with the sector to ensure it adheres to the industry’s code.

“The proposed powers are designed to strengthen the voluntary Australian Code of Practice on disinformation and misinformation – of which Meta is a signatory – which requires signatories to commit to a range of measures to tackle misinformation and disinformation on their services,” she said.

“The ACMA would work with industry to ensure continuous improvement to the voluntary code, and would have powers to make the code enforceable if self-regulation proves inadequate.

“This consultation process gives industry and the public the opportunity to have their say on the proposed framework.”

Victorian barrister Peter Clarke said it was “a disgraceful piece of proposed legislation” and was particularly concerned about the clause that captured the causing of “harm” as disinformation.

He said terms used by the government including references to “hatred against a group in Australian society”, “disruption of public order or society in Australia” and “harm to the integrity of the Australian democratic process” were “so vague as to be dangerous”.

“It’s all tied in with this vague idea of the public good. It’s a dangerous piece of legislation,“ Mr Clarke said.

Sydney barrister Jeffrey Phillips SC said what the bill was trying to do was “inherently wrong”.

“When you start having things like this on contentious political issues, it poses the ability to censor and shuts down debate,” he said.

“It’s very subjective. This is a bad direction for us to be going in,” he added.

Barrister and university law lecturer Sophie York said she was concerned the ACMA could become a PR body for the government.

“Allowing any unelected body to decide what is misinformation would require them to have a wisdom which is just not possible,” she said.

“They can’t possess the wisdom that means they decide what every Wikipedia entry should be on every topic. It’s very hubristic for them to even think that.”

You Tube Australia – which is owned by Google – has revealed it would support the legislation, with public policy and government relations senior manager Rachel Lord telling the committee hearing “broadly speaking we do support giving ACMA powers to enforce the code”.

Chinese video platform TikTok has also indicated it would support the bill, saying it had begun considering the draft legislation and “transparency is something that we welcome”,

In the at-times heated hearing, Senator Paterson accused TikTok Australia head of public policy Ella Woods-Joyce of misleading the committee when she claimed that TikTok did not “censor content in relation to political sensitivities”. WeChat declined to appear before the senate hearing in a move that Senator Paterson said demonstrated “contempt for the parliament of Australia by WeChat and their parent company Tencent”.