Boxing Day sales and restrictive trading – The law behind whether or not you can sales shop on the 26 December 2015

Did you go Boxing Day sales shopping on 26 December or did you have to wait until 27 December? Growing up in Adelaide, I found it very frustrating that the Boxing Day sales started on 26 December in other states, but Adelaide had to wait until the 27 December because of restrictive retail trading hours. South Australia, Western Australia and Queensland have traditionally had more restrictions on retail trade than New South Wales, Victoria and Tasmania. In fact, Tasmania has the most simple and deregulated retail trading system out of all the states. In this blog post I look at the state legislation, including restrictive trading legislation, behind Boxing Day sales.

Public holidays and restrictive trading laws are state based

In the division of powers between Commonwealth and state governments, state governments have the residual power to legislate for public holidays. State governments also have the power to regulate retail trading hours. Some public holidays are known as “national public holidays”, as each state has legislated for those days to be public holidays. A list of national public holidays can be found in s.115(1) of the Fair Work Act 2009. State specific public holidays are located in state statute. Public holidays are fantastic for those who work full time, as the Fair Work Act 2009 gives certain employees the right to be paid their base rate of pay on the public holiday (s.116) and an entitlement to be absent from work for the public holiday, though an employer can require an employee to work if the request is reasonable (s.114).

Boxing Day is a national public holiday, as each state has legislated to make 26 December a public holiday:

1. New South Wales - s.4(k) of the Public Holidays Act 2010 (NSW);

2. Victoria – s.6 of the Public Holidays Act 1993 (Vic);

3. South Australia – s.3(2) Holidays Act 2010 (SA);

4. Western Australia – s.5 and Second Schedule Public and Bank Holidays Act 1972 (WA);

5. Queensland – s.2 and Schedule Holidays Act 1983 (Qld); and

6. Tasmania – s.4 Statutory Holidays Act 2000 (Tas).

Whether retailers can trade on a public holiday is determined by restrictive trading laws on a state by state basis.

Restrictive trading on Boxing Day by state:

New South Wales

Restrictive trading days in NSW are Good Friday, Easter Sunday, Anzac Day (but only before 1pm), Christmas Day and Boxing Day (s.3 Retail Trading Act 2008 (NSW) (NSW RT Act). All shops predominantly selling retail goods are required to be closed on the restrictive trading days unless an exemption in Part 3 of the NSW RT Act applies (s.4 NSW RT Act). The general exemptions from trading on a restrictive trading day including exempt shops such as book shops, chemists, and florists (s.7 and Schedule 1); small shops where not more than two people are in the shop, one is the owner of the business, and neither of the persons in the shop are employees (s.8); and premises solely selling liquor or meals that have a hotel or small bar licence (s.9).

Significant changes were made to the NSW RT Act in 2015 by the Retail Trading Amendment Act 2015 (NSW)(Amendment Act). Schedule 1 of the Amendment Act inserted s.8A, an exemption to restrictive trading on Boxing Day only:

8A Shop not required to be closed on Boxing Day if staff freely elect to work

(1) A shop is not required to be kept closed on Boxing Day if the shop is staffed only by persons who have freely elected to work on that day.

(2) This section has effect despite any other provision of this Act and any other Act or law.

“Freely elected to work” is defined in s.3A in the negative. A person has not made a free election if they were coerced, harassed, threatened or intimidated or because the person is merely rostered or required by an Award or Enterprise Agreement to work on that day.

Prior to the introduction of s.8A, not all shops in NSW were able to open on Boxing Day. Now any retail shop may open on Boxing Day, as long as the staff have “freely elected to work on that day”.

In 2015, Boxing Day sales throughout NSW started on 26 December.

Victoria

Victorian retailers have been able to trade on Boxing Day for years, as under the Shop Trading Reform Act 1996 (Vic) shops to which the Act applies must remain closed during “ordinary shop closing times” (s.5(1)), and Boxing Day is not an ordinary shop closing time. Retail shops in Victoria are only required to be closed on Good Friday, Christmas Day and until 1pm on ANZAC Day (see definition of “ordinary shop closing times” in s.3). Not all shops are prohibited from trading on these days. Exempt shops in s.4 include chemists, petrol stations, and restaurants.

In 2015, Boxing Day sales throughout Victoria started on 26 December.

South Australia

South Australia retains restrictive trading laws on 26 December in non-CBD locations. Rundle Mall (CBD) is the only retail precinct permitted to be open on Boxing Day, and even then is only permitted to open from 11am-5pm which is a very limited 6 hour trading period compared to other states. Regional shopping centres cannot commence Boxing Day sales until 27 December. While small retail shops have no restrictions on trading hours (s.12C), general retail shops are restricted in their trading hours.

Shops outside the CBD district must be closed on 1 January, Easter Sunday, Christmas Day and Boxing Day (s.13 Shop Trading Hours Act 1977 (SA)), unless the Minister has granted an exemption (s.5). Anyone in doubt over the high levels of retail trading regulation in South Australia, should have a look at s.13 of the Shop Trading Hours Act 1977 which details the restricted hours retail shops can open throughout the year.

On an aside, South Australia has two part day public holidays on Christmas Eve and New Year’s Eve from 7pm to midnight (s.3B Holidays Act 2010), meaning that retail employers have to pay applicable public holiday penalty rates to employees for these periods.

Boxing Day sales in the Adelaide CBD commenced on 26 December 2015. Sales commenced in shopping precincts outside the CBD on 27 December 2015.

Western Australia

Western Australia is another highly regulated jurisdiction for retail trading. While the legislation remains restrictive, the Minister has made a number of orders enabling retail trade for general retail shops on most public holidays.

The Retail Trading Hours Act 1987 (WA) categorises shops into “general retail shops”, “small retail shops”, “special retail shops” and “filling stations” (s.10(1)). Large retailers like Myer and David Jones who engage in Boxing Day sales fall within the category of “general retail shops” (s.10(2)). General retail shops must be closed on public holidays (s.12(3)(d)) unless an order has been made by the Minister (of Commerce) to vary trading hours (s.12E). The Minister cannot authorise general retail shops to be open on ANZAC Day, Christmas Day or Good Friday (s.12E(3A)). The Minister has authorised trading on most public holidays aside from those specified in s.12E(3A). The Minister for Commerce authorised retail trading on Boxing Day from 8am to 6pm, as well as the Boxing Day public holiday on 28 December from 8am to 6pm.

Restaurants, cafes and take away food shops are not regulated by the Retail Trading Hours Act 1987.

Western Australian legislation is “special” in that it often splits the state into two by dividing the state into north of the 26^th parallel and south of the 26^th parallel. The Retail Trading Hours Act 1987 (WA) only applies to locations south of the 26^th parallel, which includes Perth where most of the retail trading in Western Australia occurs.

The Public and Bank Holidays Act 1972 (WA) gives the Minister the power to proclaim a half-holiday, such as those in South Australia – to my knowledge this has not occured.

In 2015, Boxing Day sales in Western Australia commenced on 26 December.

Queensland

The Trading (Allowable Hours) Act 1990 (Qld) categorises retail shops into “exempt shops”, “independent retail shops” and “non-exempt shops” (see ss.4 to 6). “Exempt shops” include antique shops, arts galleries and ice cream parlours (s.5). The definition of “independent retail shop” in s.6 is complex, but the definition excludes shops engaging over 20 persons at any one time. “Independent retail shops” have unrestricted trading hours except on Christmas Day, so can open on Boxing Day. Most large retail shops such as Myer and David Jones that participate in Boxing Day sales exceed 20 employees and will be “non-exempt shops”.

The trading hours of non-exempt shops are also regulated by orders made by the Queensland Industrial Relations Commission (QIRC). The Commission makes amendments to this Order on an ad hoc basis to regulate trading hours of non-exempt shops. Currently, non-exempt shops are required to close on Good Friday, Easter Sunday (South East Queensland area only), 25 April, Labour Day and Christmas Day.

In 2015, Boxing Day sales in Queensland commenced on 26 December.

Tasmania

The Tasmanian retail sector is relatively unregulated (probably because of the state’s small size). The Shop Trading Hours Act 1984 (Tas) only applies to retail businesses with 250 or more employees (includes all employees full time or otherwise) (s.4). Section 5 of the Shop Trading Hours Act 1984 (Tas), prohibits retail shops which fall in the definition of s.4 from opening on Christmas Day and Good Friday. Retail shops are not exempt from trading on Boxing Day.

In 2015, Boxing Day sales in Tasmania commenced on 26 December.

Conclusion

While most retail shops were able to open across Australia on 26 December in 2015, the reason retail shops were able to open in many jurisdictions was dependent on an order being made by a Minister or a tribunal. The right to trade on Boxing Day can easily be removed by order. Certain jurisdictions such as Tasmania and Victoria are not reliant on orders being made for the right to trade on Boxing Day. While NSW has removed impediments to Boxing Day trading, the “freely elect to work” test is bound to fail. NSW should either go the full way to deregulation or go back to their earlier restrictive trade, rather than sit in an in-between position that is not fooling anyone. While there have been moves towards deregulation of retail trading on public holidays, there is a long way to go for states such as South Australia. While progress is slow, many retailers have adapted by moving their Boxing Day sales online. David Jones and Myer started their sales before their in-store sale started, a very welcome move.

Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370 – Reservist saved by implied freedom of political communication

An Army Reservist of Roman Catholic faith who was terminated due to his highly critical comments made on social media concerning gay members of the ADF, women serving on the front line, and Islam has been saved by the Federal Court who found the ADF’s termination decision was contrary to the implied freedom of political communication in the Constitution. The case sheds light on the extent to which the ADF (or employers by analogy) can control a person’s political expression on social media out of hours. Note that this is not an unfair dismissal case, as members of the Australian Defence Force (ADF) are not employees. Members of the ADF are commissioned, with their commission being governed by the Crown prerogative and regulated by the Defence Act 1903 (Defence Act) and the Defence (Personnel) Regulations 2002 (Personnel Regulations).

Background and facts

Mr Bernard Gaynor served in Afghanistan (2006) and Iraq (2006-7, 2008-9 and 2009) and was awarded the United States of America Meritorious Service Medal in October 2009. In July 2011 he transferred to the Australian Army Reserve. At the time the incidents that led to his termination occurred, Mr Gaynor was a Major in the Army Reserve.

In January 2013, Mr Gaynor launched a webpage, Twitter page and Facebook page to promote his candidature as a Senate Candidate for Katter’s Australian Party for the Federal elections in 2013. On 23^rd January Mr Gaynor tweeted “I wouldn’t let a gay person teach my children and I am not afraid to say it”. Mr Gaynor’s webpage identified him as having served in the Iraq War. On the 24^th January, Mr Gaynor made a press release available along the same lines, that parents should be able to choose if their children are taught by a gay teacher.

On 6 February 2013 Major Gaynor was interviewed and counselled by Lieutenant Colonel Buxton who directed Major Gaynor, using the relevant DI(G), not to make any further intemperate or inflammatory remarks on social media, whether or not on duty or in uniform while he remained a member of the ADF.

Mr Gaynor ignored this direction, and made no attempt to prevent his audience from knowing he was a current ADF Reservist. On 22^nd March 2013 the Deputy Chief of Army sent Mr Gaynor a letter referring to his publications and asking him to stop. Mr Gaynor also ignored the direction contained in this letter.

In March and April 2013 Mr Gaynor published a number of controversial statements on social media including:

1.       A series of press releases, reflecting the material on his webpage, critical of the ADF’s participation in the Mardi Gras, stating that the ADF was accommodating to gay officers and transgender officers but discriminatory against Christian members who make public comment.

2.       Press releases critical of the ADF’s women on the front line policy.

3.       An article on his webpage headed “domestic betrayal a waste of soldiers’ sacrifices” which was openly critical of defence policy in Afghanistan and linked Islam to violence.

4.       A Facebook post which was critical of the ADF’s policies in relation to gay officers, sex-change operations, women serving on the front line, and Islam. The post contained a link to a press release by Mr Gaynor. Both the Facebook post and press release identified Mr Gaynor as a Reservist.

5.       A Facebook post where Mr Gaynor wrote “at what point does the ADF become complicit in child abuse? Should children be exposed to nudity and sexually explicit behaviour at the Mardi Gras?”

6.       A Facebook post critical of ADF personnel participation in Mardi Gras that directly mentioned the Deputy Chief of the Army. The identification of the officer was intended to mock and ridicule the officer. Mr Gaynor also mentioned the Deputy Chief of the Army in a tweet along the same lines.

In May 2013, Mr Gaynor became more aggressive in his strategy and turned specific attention to the transgender officer on the staff of the Chief of Army. His comments were personal and offensive such as “he thinks that because he has had a nip here, a tuck there and popped a bunch of pills that he is now a woman” and “the Army is now the employer of choice for those who want to take their cross- dressing career a little further”.

On 30 May 2013 My Gaynor was served with a Termination Notice issued by Chief of Army who was satisfied the criteria in reg.85(1)(d) and (1A) was established (Termination Notice). My Gaynor responded with a statement of reasons on 27 June 2013.

The decision to terminate Mr Gaynor’s commission was made on 10 December 2013 by the Chief of the Defence Force (Termination Decision). A variety of reasons were given in the termination decision including:

·         being openly critical on social media of ADF and government policy, support offered to gay and transgender members, and the decision to permit women to serve in combat roles;

·         clearly identifying as an active Army Reserve member on many occasions when making comments contrary to ADF policies;

·         behaviour generally acting contrary to policies and cultural change initiatives;

·         conduct repeatedly inconsistent with the DI(G) PERS 50-1;

·         failure to modify online behaviour; and

·         persistence of the conduct.

Mr Gaynor made a Redress of Grievance complaint, and progressed it through all internal avenues before the Chief of Defence Force finally rejected the Redress of Grievance on 30 June 2014.

Mr Gaynor challenged the Termination decision under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) as well as under constitutional grounds (s.116 freedom of religion, and the implied freedom of political communication). He was successful before Justice Buchanan on the implied freedom of political communication argument.

Defence Instructions (General) (DI(G))

The Secretary and Chief of the Defence Force have joint administrative responsibilities in the administration of the Defence Force (s.9A Defence Act). Instructions and policies issued with the authority of the Secretary and the Chief of the Defence Force pursuant to s.9A have statutory effect and are known as Defence Instructions (General) (DI(G)). DI(G)’s relevant to this case include:

·         DI(G) PERS 50-1 issued 18 October 2001 “Equity and Diversity in the Australian Defence Force”;

·         DI(G) ADMIN 08-1 issued 5 October 2007 “Public comment and dissemination of official information by Defence personnel”; and

·         DI(G) ADMIN 08-2 issued 16 January 2013 “Use of social media by Defence personnel”.

Mr Gaynor was required to follow these Defence Instructions.

Mr Gaynor was also required to abide by the Chief of Army Directive CA Directive 15/12 “Army Implementation Plan for Removal of Gender Restrictions” which attempts to improve the Army’s gender diversity and implement an ADF wide plan.

Personnel Regulations

Regulation 85 of the Personnel Regulations lists the reasons for which the service of an officer may be terminated. The list includes at 1(d):

“the Chief of the officer’s Service is satisfied that the retention of the officer is not in the interest of:

(i)                  The Defence Force; or

(ii)                The Chief’s service”

The reasons for which the Chief of the officer’s Service may be satisfied under 1(d) are not limited but include reasons relating to the officer’s behaviour.

Regulation 85(2) permits the Governor-General (or their delegate under reg.85(6)) to issue a termination notice stating the reasons, particulars and facts of termination, inviting the officer to give a statement of reasons and giving a period of at least 28 days for the officer to provide their statement of reasons.

Regulation 85(4) states that the Governor General (or their delegate under reg.85(6)) must issue a termination decision where a statement of reasons has been provided by the officer within the period, and having considered the statement, the Governor General is of the opinion the reason for termination has been established and has not been affected by a change of circumstance since the termination notice was given to the officer. 

In Mr Gaynor’s case, the Chief of the Defence Force and Chief of Army had been delegated the power to issue a termination notice and make a termination decision.

The ADJR Act claim

The ADJR Act claim was brought under s.5 of the ADJR Act. Mr Gaynor attempted to rely on every ground available in s.5(1), which made it difficult for Justice Buchanan to distil the essence of Mr Gaynor’s argument.

However, Justice Buchanan did conduct an analysis of possible grounds, reiterating that reg.85(1)(d) is a satisfaction power. The judiciary cannot rule on whether the satisfaction of a decision maker is appropriate, as this would amount to merits review, not judicial review. Similarly, the judiciary cannot analyse the appropriateness of ADF policies. The DI(G) applied to Mr Gaynor whether or not he was in uniform, as his service obligation was to obey the instructions and orders he was given and respect the disciplined nature of the ADF. The DI(G)’s themselves were not unlawful. There was no evidence showing bias, judgment or predetermination by the Chief of the Defence Force and no substance in any of the challenges to the Termination Decision under the ADJR Act.

The constitutional law claims

Section 116

Section 116 of the Commonwealth Constitution states:

“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”

Mr Gayor argued that his posts on social media were protected by s.116 of the Constitution, as his comments amounted to the exercise of his Roman Catholic religion. Justice Buchanan immediately dismissed this argument, as the Termination Decision did not require Mr Gaynor to refrain from the exercise of his religion or satisfy a religious test of any kind. There is limited case law on the point, Justice Buchanan cited Mason ACJ and Brennan J’s test from Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 120:

“The area of legal immunity marked out by the concept of religion cannot extend to all conduct in which a person may engage in giving effect to his faith in the supernatural. Conduct in which a person engages in giving effect to his faith in the supernatural is religious, but it is excluded from the area of legal immunity marked out by the concept of religion if it offends against the ordinary laws, i.e. if it offends against laws which do not discriminate against religion generally or against particular religions or against conduct of a kind which is characteristic only of a religion”.

Justice Buchanan applied this test to Mr Gaynor’s situation and found s.116 could not be breached, as none of the instructions or orders given to Mr Gaynor or the Termination Decision infringe the test.

Implied freedom of political communication

Justice Buchanan begins his analysis by identifying the two limb test in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (Lange):

Limb 1: Does the law effectively burden the freedom?

Limb 2: Is the object of the law compatible with the constitutional system of representative and responsible government and is the law reasonably appropriate and adapted to achieving that legitimate end?

Justice Buchanan also describes the distillation of the second limb of Lange in McCloy v State of New South Wales [2015] HCA 34 where the majority required proportionality testing in the second limb, requiring an analysis of whether the law is suitable, necessary and adequate in its balance. For a more detailed analysis of the two limbed test, see my blog post on McCloy v State of New South Wales [2015] HCA 34.

Importantly, Justice Buchanan reiterated that the freedom is not a personal right, and in Mr Gaynor’s case, the implied freedom is a suggested limitation on the discretion available under reg.85 of the Personnel Regulations. The first limb required an examination of whether the statements and communications by the applicant were political in nature. Justice Buchanan found that Mr Gaynor’s statements were clearly political in nature, and the fact the statements were offensive did not take them outside the scope of political discourse, even when directed at an individual. The Termination Decision was essentially disciplinary action which was an adverse consequence aimed at preventing further communications.

In considering the second limb, the reasons given in the Termination Notice were analysed. As identified in the facts above, the Termination Notice contained a mix of reasons for termination. The reasons included Mr Gaynor identifying himself as an ADF member while making his comments, but were not confined to this, and included the contention that Mr Gaynor’s public comments and general behaviour and his membership of the ADF as such were incompatible. Justice Buchanan concluded that the main reason behind the decision to terminate Mr Gaynor’s commission was the fact that Mr Gaynor had expressed his views publicly while he was still a member of the ADF.

Mr Gaynor had made the comments in a personal capacity, unconnected to the ADF except by the ongoing formal circumstance of his ADF membership. Justice Buchanan found the second limb of the Lange test was not satisfied. The decision to terminate Mr Gaynor’s commission exceeded the statutory authority under reg.84(4) of the Personnel Regulations because it was not reasonably proportionate and adapted to a legitimate end served by reg.84.

In applying the “suitable, necessary and adequate in its balance” criteria from McCloy, Justice Buchanan considered the question of whether “a regulation which directly prohibited the applicant’s conduct, would be valid if it was based on the same matters as the findings of CDF in the Termination Decision”. Justice Buchanan found such a regulation would not be “adequate in its balance”:

1.       Suitable – there is a need for discipline, obedience to orders and adherence to standards by ADF members, and a restriction on public comment is “suitable”.

2.       Necessary – there is not another obvious and compelling means of achieving the objective in the face of conduct such as Mr Gaynor’s who was defiant and intractable.

3.       Adequate in its balance –Mr Gaynor’s conduct involved the expression of political opinion, effectively as a private citizen. The burden on Mr Gaynor was significant, given the consequences of termination. The right to the freedom cannot be lost merely because of the main reason for termination, being Mr Gaynor remained a member of the ADF. Members of the full time regular services may rarely be free to publicy express opinions against the ADF, but the situation is not the same for Reservists who are often not on duty, and are private citizens when not in duty or uniform. When not in duty or uniform, Reservists should not have their freedom of political communication burdened.

While Justice Buchanan applied the elements of the McCloy distillation of the test, he made it clear his decision would fall the same way if he had applied the second limb of Lange in its traditional sense.

Key lessons

This case is a win for freedom of political communication advocates. It clearly states that the ADF cannot terminate a Reservist for expressing their political views where the political views are expressed when not on duty or in uniform, even where the Reservist makes it clear they are a current ADF member. The ADF case fell down on the “adequate in its balance” component of the second limb of the Lange test. If a decision lesser than termination had been made, this may have been “adequate in its balance”.

Analogies can be drawn from this case to the employment context. While each case will turn on an employee’s type of employment and the applicable policies, an employee’s freedom of political communication will be protected while the employee is acting in a private capacity. The protection may extend to instances where the employee states their connection to their employer, but this would depend on whether the second limb of Lange is satisfied, and in particular, whether the action taken against an employee is “adequate in its balance”. There is no higher authority case law on the application of the implied freedom of political communication to an employment law unfair dismissal context.

Note there is a strong chance this case will be appealed to the Full Court of the Federal Court and eventually the High Court. While it remains to be seen whether leave for appeal will be granted, given the case turned on the application of the “adequate in its balance” component of the test as enunciated in McCloy, and this is a new component of the second limb of Lange, there is a high chance leave will be granted.

Law graduate job market 2016 – what will the new year hold for graduate lawyers?

The years 2013 to 2015 were not good years for law students to graduate. The law graduate job market retracted at the same time that the number of law students graduating and job hunting increased significantly. Will 2016 offer improved opportunities for law graduates trying to get their foot in the door? While the downward trajectory in legal demand continues, there are some positive signs for graduates trying to get their first job as a lawyer, particular if law graduates are looking in the right places. In this blog post I have drawn from my own experiences and understanding of the legal market as well as the Melbourne Law School and Thomson Reuters’ Australia: State of the Legal Market 2015 available here.   

Traditional commercial law firms

Demand for commercial legal services in the Big 8 Firms (Allens, Ashurst, CU, CCW, HSF, KWM, Minters, Norton Rose) and larger firms has been on a downward trajectory for the past five years and the trend continues, with demand falling 2% in 2015 and a 3.8% decline in the number of lawyers employed in commercial legal services. The decline in demand is particularly prevalent in the industry’s three biggest practice groups – dispute resolution, banking & finance and general corporate advisory. Some Big 8 and large firms have continued to use offshore low-cost legal process operations in places like India for work like discovery, due diligence and document management services. While some of this work would ordinarily be given to graduates, most of this work is very basic and is more likely to effect the number of paralegals and administrative/support staff a firm employs than the number of graduates.

The outlook is not all doom and gloom for law graduates seeking a career in commercial law. Large law firms have been conservative in the number of graduates they have recruited the past three years, and in some cases, have under recruited. This could lead to an increase in graduate positions offered in 2016. Demand for legal work in some practice groups increased in 2015 including:

1.       Mergers & Acquisitions;

In 2015 there was a 2.1% increase in demand for M&A work. The weaker dollar has caused an increase in international investment in Australia, as investment is cheaper and there is a reduced risk of currency fluctuation for bidders. Australia is the second largest M&A region in the Asia/Pacific, second only to China. There is indication that these conditions for M&A will continue in 2016. There is potential for even greater growth in M&A, with the imminent review of the Foreign Investment Review Board. Large firms will look for graduates who have a keen interest in M&A, as this is a growth area in an environment where demand in other traditional areas of commercial law are in the decline.

2.       Real estate, property, constructions and projects;

In 2015 there was a growth in real estate and projects work, especially among the Big 8 firms.

3.       Intellectual property; and

4.       Tax law.

If you are interested in a career as a GST lawyer look out for a spike in recruitment if the rumoured GST reforms take place.

If you have a keen interest and/or experience in one of these growth areas, you have a stronger chance of obtaining a graduate position at a large firm. These growth areas could also lead to large firms engaging in strategic hiring – that is hiring graduates to settle directly into a team rather than undertaking the traditional rotation training program. These opportunities will usually be advertised separately to the ordinary graduate program and sporadically throughout the year, so make sure you regularly check your target firm’s website. Demand for services of Big 8 and large firms increases significantly in November to December (before the January slow down). Firms anticipate this and often recruit extra graduates in September/October. Law graduates applying at this time of the year are usually required to start work immediately. If you missed out on a position earlier in the year, or finish half way through 2016 make sure you watch out for these opportunities.

Law graduates keen for a career in commercial law should also look at medium sized firms that are rapidly growing such as Mills Oakley and HWL Ebsworth. In the past three years HWL Ebsworth increased its revenue from $102m to $219m. More growth means more jobs for graduates. Note that medium sized firms that have seen rapid expansion may not have had a formal graduate program before, so you will probably experience a few teething issues, such as less comprehensive formal training than if you were working as a graduate at a large firm. However, the benefit of working at a rapidly growing firm is that you will likely be given more responsibility earlier on and will always have enough work and billable hours. Medium sized firms are more likely to hire graduates on shorter term contracts, such as 6 months and 12 months, but don’t let this put you off. Any experience in the legal sector is better than none.  

New law

The last two years has seen the rise of the unconventional law firm, which commonly use technology and pricing structure to differentiate themselves. Examples of new law firms include HiveLegal, Nest, LawPath, and LawCentral. New law firms are increasingly seen as a threat to traditional small and medium sized firms, as they are able to contain pricing through use of digital solutions. Many are experiencing double digit growth.

What can these new law firms offer law graduates? You will be surprised that some new law firms, such as Legal Vision, regularly recruit graduate lawyers. These positions generally offer very interesting work and a young, upbeat and relatively relaxed working environment, so are perfect for law graduates who would like to work in commercial law but are not so keen on a strict corporate environment.

Government sector

Obtaining a job as a government lawyer at the Commonwealth level has been difficult the past few years as graduate programs were cut and an APS freeze was in place on new permanent ongoing employees. This freeze has now been lifted, so prepare for an increase in law graduate positions in 2016, particularly at AGS, which has survived its movement into the Attorney-General’s umbrella and is once again thriving. At the state level, getting a position as a graduate lawyer has been cut-throat for some time. For example, NSW Crown Solicitors are rumoured to take on only three graduates a year. However, the programs remain in place, and are up for grabs. Remember that government recruitment processes take much longer than private sector, so start applying at least 6 months before you would like to start a government job. Formal graduate recruitment programs often recruit 12 months in advance.

In-house lawyers

The trend towards having larger in-house teams continues and is likely to continue in 2016. Companies are performing an increased amount of legal work internally, relying less on advice from external law firms and briefing barristers directly instead of through law firms. Some in-house teams are large enough to constitute their own law firm and recruit graduates and junior lawyers. Companies to watch out for include Telstra, Lend Lease, Woolworths, Coles Myer, Microsoft, Google and Yahoo.

Multi-disciplinary practices (MDPs)

Consultancy and business advisory firms are expanding their portfolio to include legal.  PricewaterhouseCoopers (PwC), KPMG, EY and Deloitte have all indicated they will grow their legal capacity. Each of these firms already has over 1,000 lawyers working for them and the numbers continue to increase. These positions are predominantly in tax advisory law. If you have an interest in this area, it could be a good alternative to working at a Big 8 law firm.

Community legal sector

Community legal centres have been under severe financial strain for years, mainly due to government funding cuts. In December 2014 the Productivity Commission released its Access to Justice Arrangements report. The Productivity Commission looked at a broad array of factors effecting access to lawyers and legal services including the level of demand for legal services and the economic and social impact of the costs of accessing justice services and securing legal representation. The Productivity Commission recommended an immediate increase in government funding for legal assistance services of $200 million per year. A full twelve months after the report was released the Productivity Commission is still to receive a formal response from the government and the community legal sector continues to operate on the verge of collapse. Community legal centres can barely afford to pay their current employees, let alone employ and train graduates. Law graduates keen for a career in the community legal sector may have to obtain initial experience elsewhere and volunteer at a community legal centre until they can work in their dream job full time.