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Year of crises leans heavily on government lawyers

Year of crises leans heavily on government lawyers

By Karin Derkley

Finance Workplace Relations 


Government lawyers have been kept busy throughout 2020 as first the bushfires and then the COVID-19 crisis piled demand on their advice services, the LIV Government Lawyers Conference was told last week.

WorkSafe legal counsel Tom Lynch said that in times of uncertainty, organisations look for the counsel and support that the legal function can provide.

"The definition of crisis as a time when difficult or important decisions must be made is quite relevant to us as lawyers, and relevant to us in the way that we give advice back to our organisation,” he said.

The bushfire crisis had unforeseen flow-on effects on WorkSafe as the organisation was forced to respond at speed to the issues that arose from the fires, he said.

"There were increased inquiries into workplace incidents, potentially unsafe workplaces, air quality issues, as well as new work cover claims, including both physical and mental health claims that arose as a result of the responders and the workers that were addressing the fires."

Mr Lynch said one great benefit for lawyers working within WorkSafe was that it quickly established a bushfire response task force. “That was probably the lawyer’s best friend because it managed to get all the subject matter experts in one room to provide the information to the lawyers that was required to give the advice."

"But what became obvious was that it was essential that a lawyer was on that task force to understand the issues that were going on and to troubleshoot any other issues that were arising and to make sure the task force was kept on track as far as possible to try and avoid the organisation giving in to any issues or drama as part of that."

ASIC Victorian regional commissioner and executive director, Assessment and Intelligence division, Warren Day told the conference the commission had been well prepared to deal with the COVID crisis after former ASIC chairman Tony D'Aloisio was caught in China during the 2009 Avian Flu epidemic.

"So we've had a pandemic response team for about 11 years and we were quite well-drilled in terms of how to deal with critical functions and getting our staff to be mobile, and we've built on that plan over those years."

In quick succession ASIC put into action a number of strategies to protect consumers and support businesses and the financial industry, while cracking down on a spate of scams and other harmful activities that emerged in the wake of the crisis.

"We've had a really high focus on scams because we've seen a significant spike in all types of scams across the board," he said.

That started early in April when ASIC had to warn real estate agents against directing their tenants to consider early release of their superannuation to make their rental payments.

ASIC put out warnings to “mum and dad investors" speculating on highly volatile sharemarkets (some with money withdrawn from their superannuation funds), and cautioned against risky cryptocurrency trading that has boomed during the past few months, he said.

Interestingly there has been a drop in insolvency appointments of as much as 40 per cent during the COVID period, compared to the same time last year, a result of JobKeeper maintaining previously struggling businesses on "life support", he said.

When JobKeeper winds up and those “zombie companies” collapse, the flow-on effect is likely to have significant impacts across the economy, he warned. "The government support has been covering up a lot of cracks and once those subsidies aren't there anymore we expect there will be a big problem in those businesses."

Meanwhile, reform to whistleblower laws that now makes ASIC the clearing house for reports on misconduct by companies has resulted in a spike in disclosures over the past three months, Mr Day said. Whether that was "because people have time on their hands to make those disclosures, or they have been impacted by underpayment from their employers, we've now got a lot work in that space."

Photo: WorkSafes's Tom Lynch and ASIC's Warren Day

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