Earlier this week, social media feeds and traditional media outlets were flooded with outpourings of anger and outrage for the victim of Stanford rapist, Brock Turner. This anger stemmed from the disbelief and confusion surrounding his sentence after being found unanimously guilty. The sentence handed down by the Judge Aaron Persky was that of six months in prison with the possibility of being released after three months. One of his reasons for serving this particular sentence was the belief that a longer sentence would have had a ‘severe impact’ on the twenty year old Stanford student.

This is not the first time the public has been distressed after hearing the final sentencing. Criminologist Doctor Karen Gelb claims that these feelings and opinions stem from earlier decades in Australian history as the 1960s saw the rise of the victims’ movement. Further, as rehabilitation and government intervention programs were increasingly unsuccessful, crime rates continued to rise and views of the public on sentencing became increasingly prominent.

Sentencing laws have been designed to allow courts to impose financial penalties or loss of freedom on offenders, limiting their decisions to guidelines already in place by legislation and the principles laid down by superior courts.

The media plays a significant role in the public perception of sentencing as they capture high-profile court cases with confrontational and sensitive issues such as domestic violence, but often do not explain how the court came to their decision.

Therefore, when judging the judge for their decision, here are some things to keep in mind.

• Many believe that issuing a longer sentence acts as a deterrent to the offender, or a way of ensuring the offender cannot commit the same crime. As was seen in Veen v R (No 2) [1988] HCA 14, it is possible to spend a significant period in prison and commit the same crime upon release. In this case, it was held that ‘while protection of the community is a consideration in the sentencing of offenders, a sentence should not be increased beyond what is proportionate to the crime merely to protect the community from the risk of further offending by the offender’.
  In many ways, this case illustrated that issuing a longer sentence no longer acts as a deterrent for offenders.
• It has also been argued that judges are too lenient in their judgements. However, a recent study identified that 90% of the public who were fully informed about the circumstances of the case and offender, viewed the judge’s sentence as appropriate.

These factors above in no way justify the offender’s actions in the current US rape case, but are possibly some of the other contributing factors to the American judge’s stance on the sentence.

What should be of comfort to those opposing Brock Turner and the Judge who handed down the final sentence, is the presence of the Sex Offender’s Registry. Whilst his sentence is not long enough, the development of Google and harsh restrictions of the Registry will ensure that Mr Turner will not forget his crimes anytime soon. Nor will anyone else.

If you believe you were given an unfair sentence, or have further questions, please do not hesitate to contact our offices on 02 8719 8700.

If you are currently dealing with a family law matter that needs to go to Court, which one should you look to?

The Federal Circuit Court of Australia

The Federal Circuit Court of Australia is an independent Court under the Australian constitution and is constituted by the Chief Judge and judges as appointed under section 8 of the Federal Circuit Court of Australia Act 1999 (Cth). The primary objective of establishing this Court was to provide a simple and accessible alternative to litigation in the Family Court.

It hears approximately 80% of family law matters including parenting, financial, divorce and child support cases. However, this Court also has the jurisdiction to hear matters pertaining to legal issues such as bankruptcy, copyright, migration and trade practice. One of the benefits of having your matter heard in this court is the direction from the Federal Circuit Court of Australia Act 1999 to ensure the Court operates informally and uses streamlined procedures. This has the effect of providing, generally, a cheaper and quicker litigation process.

This court tends to deal with less complicated matters than its partner, the Family Court.

The Family Court of Australia

The Family Court of Australia hears a smaller percentage of family law cases but tends to deal with the most complex of parenting and financial cases such as child welfare agency allegations of sexual abuse or serious physical abuse, international child abduction under The Hague Convention and complex mental health issues.

In regards to financial matters, the Family Court of Australia will hear a case if it involves more than two parties, complex questions of law and complicated valuations of trusts and corporate structures.

If you have a family law matter, and you believe it is a matter for one of these Courts, contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

For years, debate and controversy have surrounded the issue of the unpaid internship experience as an operation that straddles the line between legal and illegal. Some have gone further to argue that university students especially, are being held by the ‘short and curlies’.

This issue is on the rise as an influx of young people are applying for unpaid positions to garner experience that will make them more attractive to future employers and bridge the gap between their education and eventual career.

Employers are well aware of the above facts which is why it is important to know the difference between employment and an internship.

Under the Fair Work Act, both vocational placements where students receive course credit from an educational institution and internships where there is no ‘employment relationship’ are legal.

Thus, the following factors should be considered:

What is the nature and purpose of the arrangement?

Distinguish between a meaningful and learning work experience in which training and skill development is involved as opposed to assisting with the ordinary operation of the business which is more likely to reflect an employment relationship.

How long is the arrangement for?

Traditionally, the longer the period of the arrangement, the more likely the person is an employee.

How significant is the arrangement to the business?

If the work being done is normally performed by paid employees and the business or organisation needs it to be done to continue functioning, it is more likely you are performing the tasks of an employee.

What are the person’s obligations?

There will often be requirements and obligations regardless of whether you are being paid or are unpaid, so it is important to note that you role is primarily observational and the expectations are incidental your learning.

Who benefits from the arrangement?

Whilst the business or organisation may also get some benefit out of your role, they are primarily there to aid and train you in developing your learning before anything else.

As seen above, it can be quite difficult to tell the two apart. As a result, countries like England have made steps to ensuring that all internships are paid in order to bridge the gap between the poor and the rich. This largely comes from the belief that the unpaid internship leads to inequality and sends the message that only those who can afford the best experience will have it.

With such an emphasis placed on securing a position with a company before seeking a job in that area, young people feel like they do not have the luxury of searching for paid positions which are, undoubtedly, harder to find. Thus, young people need protection from the potential illegality that follows the unpaid internship.

Lawyers Weekly writer, Stephanie Garber, argues that young people do not have the time or money to seek out tribunals much less endure the Court process. In the meantime, perhaps Australia should follow the US model of placing the onus of proving that an employment relationship does not exist, on the employer.

Considering the area of law is rooted in ethics, one might ask why students and young people are still being asked to work for free when the benefits are not outweighing the consequences?

If you feel that you are being exploited as a young intern or as a casual employee, please do not hesitate to contact Freedman & Gopalan to discuss your rights on 02 8917 8700.

Earlier this year, the government put into action the Opal Card scheme making paper tickets redundant and unable to be sold. The exception to this is the purchase of single adult and concession tickets, regional and country excursion, international student and return tickets.

The Opal System enticed and attracted many with the promised benefits of costing less per week than the average paper ticket and rewards for increasing your travel with NSW transport services.

Specifically, for those who made more than eight journeys in a week, a series of free trips would follow until the commencement of a new week.

However, earlier this week, the Honourable Mr Andrew Constance, NSW Transport Minister has announced that travellers will no longer travel for free after their eight journeys in a week, but instead pay half price for those trips.

The rationale behind this new adoption stems from the argument that approximately 70% of customers are not reaching this reward and those that do are rorting the system, forcing the government into a position of losing money rather than gaining the funds originally considered.

Government opposition have insisted that this new scheme is going to punish the commuters travelling into work five days a week and potentially ‘drive down public transport use’.

However, it should be mentioned that many hardships encountered by the Opal System have centred around the transfer fee when a commuter needs to switch modes of transport, especially if they catch a bus to a train station and then board a train to work. This issue has worsened as a result of the George Street closures in the Sydney CBD.

In an attempt to appease the majority, the new scheme will implement a $2 ‘transfer discount’ against the cost of paying twice. For those coming from areas including the Northern Beaches, this discount could make a significant difference.

However, State Opposition Leader, Mr Luke Foley, has argued that the adoption of these new proposals could lead to weekly fares from areas such as Blacktown or Liverpool into the CBD increasing by at least 48%.

As the majority of us hope to reduce our carbon footprint and travel into work or school without the hassle of parking or traffic, it is crucial that the NSW government does all it can to ensure commuters are benefiting from the amount of money they spend a week on public transport.

Nobody likes being taken for a ride…unless it is free.

If you receive a fine from the State Authority in relation to the misuse of an Opal Card or any issues, please to not hesitate to contact Freedman & Gopalan in order to have your legal concerns addressed or appropriate legal advice sought. Please feel free to call us on 02 8917 8700

Co-ownership is where a property is owned by two or more parties, either as joint tenants or as tenants in common. In instances where co-owners of a property are in dispute, for example when or whether the property is to be sold, the Court may allow one or more of the co-owners to apply to appoint trustees for the sale or partition of the property. This essentially has the purpose of forcing the sale of the property, even where one or more parties may object to such an act.

While it is perhaps easier and definitely less costly to attempt to settle such matters outside of Court –   a situation where your lawyer can also assist –  where this is not possible or mediation has failed, an application under Section 66G of the Conveyancing Act 1919 (NSW) has long been a source of assistance to parties wanting to sell the property but faced with an uncooperative co-owner.

As stated above, the court’s power to appoint a trustee to effectively force the sale or partition of property comes from section 66G of the Conveyancing Act, which states:

… on the application of any one or more of the co-owners, appoint Trustees … [for the property] to be held by them on the statutory trust for sale or on the statutory trust for partition.”

After a successful application is made and the property is sold, monies made from the sale are kept in trust by the trustee/s appointed by the applicants and the Court. The money from the sale will be distributed between relevant parties following any orders the Court has made.

Interestingly, a Court will generally only refuse an application under Section 66G in special circumstances. This may include evidence of a prior agreement between parties that indicates a promise not to sell the property unless all co-owners agree.

It is best to seek legal advice if you are thinking of selling your home which is currently owned with another person who is not prepared to sell the property, so that you can apply for a Section 66G Order as we can advise you best in order to prepare the Application and ensure that your costs are sought to be paid by the other party.

If you are in a property dispute or are looking to sell your property which is currently co-owned with another registered proprietor but have dispute in relation to selling the property, contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

The leaves are starting to fall off our trees, the chill in the air is becoming more noticeable and the Budget for 2016 has been released.

Whether you are a university student striving to move out of home or a parent of three children working a full time job, the Budget concerns you. Whilst a lot of the promises delivered by Treasurer Scott Morrison depend on Turnbull’s re-election, it is evident that you cannot please everybody.

Here is how the 2016 Budget is going to affect you.

Schools and Child Care

For the new parents of 2016, it is important to note the changes to the Commonwealth Paid Parental Leave Scheme. This Scheme has enabled new parents entitlements to financial support for up to 18 weeks to help them take time off work to care for a newborn or a recently adopted child. This will be affected by the Budget as this Scheme will be reduced where a claimant is also entitled to employer provided paid maternity leave.

Further, don’t think you can count on the Government’s proposed plans for a Child Care Subsidy just yet. After some setbacks concerning the Senate, the Scheme will be deferred a year until it can be passed through the Senate. However, the existing Child Care Benefit and Rebate will keep its seat warm in the meantime.

On a positive note, both public and private schools will see a rise in Government funding, on the condition that schools invest and lift their numeracy and literacy standards. Additionally, the Abbott-driven School Chaplaincy Programme will expire in 2017 – 2018 and will not be renewed.

Youth and Students

Instead of continuing to push higher education reforms, the Coalition has given university students a breather but the inevitability of changes to the system are impending which could see an increase in student rallies down the track. However, as a bonus for students, the Government will no longer need students to make a separate application for Health Care Cards, but issue them to eligible students.

One of the most radical and controversial changes made in the 2016 Budget has been the Youth Employment Package. This scheme will invest $751.7 million dollars into developing youth employability skills by paying businesses to hire and train a young person as an intern which in turn, will incentivise businesses to hire them as employees.

The Working Australian

The Government has brought us good news in regards to superannuation.First of all, the Government has provided us with a clear definition of what superannuation entails in order to prevent people thinking it can be used to pay off their mortgage or student loans. In addition to this, for those who are earning less than $37, 000, there is a proposed tax discount which has the intention of cutting down your super tax bill

Affecting all

Whilst there continues to be a freeze on Medicare Benefits Schedule fees, the Government has introduced, finally, a Children and Adult Public Dental Scheme which will attempt to treat more people with less money than was originally put in place by the Labor Government.

What are your thoughts on the 2016 Budget? Has the Government covered the appropriate areas? Some, including The Project’s Carrie Bickmore, have argued that the Government has not listened to the Australian Public and tackled the social and communal needs that impinge on Australian social well-being. So far, the above are only promises and estimations. So far, we are going to need more than a budgetary outline to determine who should next lead our country.

Have any thoughts you want to share with us about the budget? Send us an email! 

Has Australia finally been thrown overboard without a life vest? Or are we still clinging to the life-line some call a mockery of international law; our immigration policy.

Earlier this month, Papua New Guinea’s Supreme Court ruled Australia’s detention of asylum seekers on Manus Island to be illegal. The Court ordered that both PNG and Australian Governments needed to take immediate action in closing down the ‘unconstitutional and illegal detention of the asylum seekers or transferees at the relocation centre on

Manus Island’. The grounds for this decision lay largely rest on the interference this detention centre inflicts on a refugee’s human rights at international law and under the PNG constitution.

President of the Australian Human Rights Commission, Gillian Triggs, commented on this decision by demonstrating that the key difference between both countries, is the constitutional human rights provisions. As evidenced by previous Australian High Court decisions, Australia has not included these provisions within the Constitution. Triggs argues that this is why Australia has been able to validate offshore processing without regard to fundamental human rights including preventing the deprivation of liberty.

The Australian Government has responded through Immigration Minister Peter Dutton who has attempted to reassure Australian citizens that the findings of the Supreme Court in PNG are not binding on the Australian Government and will not affect Australian Immigration policy.

Is this reassurance?

Australia is a signatory to the Refugees Convention, a key international instrument that defines the duties and obligations of states to protect refugees fleeing from persecution. Australia has ratified Article 1A(2) into the Migration Act 1958 into domestic law.

These steps taken by Australia to prove itself worthy in the eyes of the International Community fall short, especially given the recent PNG decision. As a result of the current stance taken by Australia and the well-known Abbott Government policy ‘turn back the boats’, Australia has been condemned for its treatment of refugees.

Whether you are in agreeance with the PNG decision or not, the public, through social movements like the Let Them Stay campaign, want an answer. The constant stream of news alerting us to another detainee suicide or a criticism from an overseas government is distressing and embarrassing as a citizen of a country that once espoused equality and mateship.

The reassurance should and must come from an alternative. A lifeboat that promises to prioritise human rights as well as border security.

There is a stigma that has attached itself to women’s handbags; they contain one’s makeup, nail file, purse and possibly some chocolate. Not anymore!

In contemporary society, women are now using their handbags for work-related reasons whether they are carrying electronic devices such as a laptop, or files and paper to write on. It is for this reason that the Australian Tax Office (ATO) has agreed that a woman’s handbag can be tax deductible.

But there is a catch!

In order to claim your handbag as a work expense, it could be necessary to keep a logbook proving that the bag was used for carrying more than just personal items. In this way, it is hard for anyone to argue that, despite the description, it is different to the purpose served by a man’s briefcase or satchel.

The Financial Review engaged in this issue by writing that, traditionally, the ATO has stated,

‘the purchase of a handbag has the hallmarks of a private expense, as a handbag is used for carrying personal items. That is, handbags are not bought to be use for work purposes and are not used for work purposes and therefore are not deductible.’

However, as has been recognised by Workplace Gender Equality Agency director Libby Lyons, this viewpoint does not take into account that the workplace also accommodates women.

Therefore the ATO has agreed that a handbag could be tax deductible should there be proof that it is used for work purposes, taking into account the cost of the item, the size and the profession of the claimant.

If the item is less than $300, there is a significant chance that the full amount can be claimed back. However, if the cost is over $300, the ATO will depreciate the item. Further, if the item has been bought in March or earlier, there is a greater possibility of the ATO accepting your claim due to the evidence provided by a logbook. Thus, shop with caution closer to June to make the end of year tax claims.

Ladies, if you do own a handbag you carry predominately for work purposes, now might be the time to start logging down the items you carry each day so that the bag you do cart to and from work five days a week weighs just a little less around June.

A business cartel is an illegal activity where two or more companies decide to act together in their business ventures rather than compete against the other, effectively monopolising the market – or at least, greatly minimising healthy competition with other businesses.

The purpose of cartels is to control the market of whatever business the companies are involved in; this can mean that cartels can more easily drive up prices, restrict others’ access to the goods and services involved in their business; and lessen the chances of smaller and honest businesses running smoothly, putting them at severe financial risk and detriment.

Cartels and Business Owners

Worryingly, business cartels are becoming more common and harder to catch. As a business owner, particularly if you are the owner of a smaller business, it is vital you know your legal rights in regards to the operation of cartels. This is particularly important when it comes to the legal relationship between you and your supplier/s, as should a cartel target one of your suppliers, this can adversely affect your access to these goods and services and/or drastically increase the prices of these goods. This can have dire consequences for your business as your budget may be pushed to its limit attempting to accommodate for the change in costs.

What kinds of activities should your business look out for?

As a business owner, you should always be aware of the following and be sure to report any suspicious activity to the ACCC and obtain legal advice:

• Be aware of the different kinds of supply and other arrangements that competitors in your industry have, particularly with other companies and suppliers
• Has your supplier recently had a significant price rise or other sudden change?
• Liaise with different suppliers to obtain the best possible price, and try and utilise a wide range of suppliers, rather than relying on a single one, which would effectively be ‘putting your eggs in one basket’
• Ask your lawyer to include anti-collusion clauses in any documentation and contracts you need to have with your suppliers and other related parties. This may involve requiring these parties to declare they have not conspired or colluded with any competitors or other parties in the supply of good and services

Business Cartels and the Law

Business cartels are illegal under civil and criminal law; thus, individuals and corporations caught acting in a cartel are liable for civil and criminal penalties, including fines ranging between $360,000 and $10 000,000, jail time of up to 12 months; injunctions; orders disqualifying parties from managing corporations; and community service orders. It is evident that the severe and far-reaching nature of penalties available to the Courts means that the operation of business cartels is something the law takes very seriously. Accordingly, should your business be affected by business cartels, it is imperative you seek legal advice to ensure your business is protected.

If you want to protect your business from the threat of collusion, or for any other business related matter such as contract advice, contact our solicitors on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.