Privacy Laws - what are they?

The Privacy Act 1988 (Cth) promotes and protects the privacy of individuals by regulating how Australian government agencies and large organisations (with an annual turnover exceeding $3 million) handle personal information.

Despite the significant changes to the distribution, accessibility and use of personal information by government agencies and corporations in the turn of the digital era, major privacy reforms have only been implemented in 2014. The immense quantity of data flow in digital ecosystems have created the conditions for recent major data breaches, and exposed Australians to a high risk of identity fraud and scams.

As highlighted in the Privacy Act Review Report by the Attorney-General’s Department, Australia’s existing privacy laws are quite disparate from leading privacy laws on the global scale. Accordingly, the Australian Government’s response to the Attorney General’s Department’s review of the Privacy Act 1988 (Cth) outlines a crucial set of proposals that are critical to ensuring Australia’s privacy framework is strengthened for the future. The Australian Information Commissioner and Privacy Commissioner, Angelene Falk, noted that “this is the most significant change to the Privacy Act in decades, and will require organisations to ensure that their practices are fair and reasonable”.

The proposed changes and their consequences for you

The consequence of the reforms to be implemented in the Privacy Act will be multifaceted, impacting consumers, business, government and the broader economy.

One of the fundamental developments is the ability for individuals to exercise new privacy rights and take direct action in the courts if their privacy is breached; greater autonomy is therefore provided to consumers, and a higher level of accountability for agencies and organisations who misuse the handling of sensitive information.

Additionally, potentially updated definitions for terms such as “personal information” and “consent” will increase the currently available protections for consumers against intrusive and manipulative data practices.

Along with changes to the definition of “consent”, the addition of a “fair and reasonable test” to assess whether a practice is substantively fair, ensures that companies with inappropriate data practices cannot claim that such practices are lawful simply because consumers provided consent.

Furthermore, the proposals include a greater range of enforcement powers to be provided to the OAIC, and expand the scope of orders able to be made by the Court in civil penalty proceedings.

Although issues with the protection and use of privacy information are inevitable in the digital age, the oncoming reforms to Australia’s privacy laws are an important start to the protection of individual’s personal information and accountability of companies and organisations that misuse such information.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

 

As a new client to a Family Law practice, you will often be asked an array of questions before your initial consultation such as ‘what is your partner’s name’. Whilst this may seem arbitrary or unnecessary, questions like these serve a great purpose. By confirming the other party’s details before their consultation, new client’s allow law firms to conduct Conflict of Interest checks to ensure that their partners have not been acted for, currently, or even in the past.

Of course, Freedman & Gopalan Solicitors, and all other law firms in New South Wales, welcome all. However, in order to maintain the highest level of professional conduct, all law firms and solicitors must abide by rules set out by the Legal Professions Act 1987 – Rules. Accordingly, per rule 3 of the Act, ‘a practitioner must not accept a retainer to act for another person in any action or proceedings against, or in opposition to, the interest of a person (a) for whom the practitioner or the firm…has acted previously; and (b) from whom the practitioner or the practitioner’s firm has thereby acquired information confidential to that person and material to the action or proceedings; and that person might reasonably conclude that there is a real possibility the information will be used to the person’s detriment’.

So, What Does This Mean?

In plain terms, rule 3 means that a legal practice cannot act against a person for whom they have acted in the past and from whom they have gained confidential information from, pertaining to the matter at hand. For instance, if a lawyer has past knowledge of confidential information provided to them by person A, they should not act against this former client if Person A’s partner, Person B wishes to retain their services, as this would create an unfair advantage.

The legislation uses the phrase, ‘a real possibility the information will be used to the person’s detriment’. This demonstrates that the goal of this rule is to protect clients from having information which they shared in confidence, used against them in proceedings.

Why is this Important for Law Firms?

Proceeding forth with a client, despite a clear conflict of interest constitutes as unsatisfactory professional conduct, which is defined by section 296 of the Legal Profession Uniform Law (NSW) as an act (or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner. As such, providing a questions or forms to initial clients is imperative to ensuring law firm’s carry out their due diligence, and means that existing or previous clients do not have to fear when sharing information with their solicitors.

Where do we Draw the Line?

At first, the standard to which a conflict of interest is held, was explained in McMillan & McMillan [2000], whereby the Full Court said, “the client only need to give evidence that he has provided confidential information to the solicitor… the client does not have to divulge the content of that information”. This is enough to establish a ‘theoretical risk’ that information may be used to disadvantage said client.

However, in 2015, the court in Osferatu & Osferatu proposed that the theoretical risk is too narrow, and that rather, a ‘real possibility’ needed to be established. This means that there needs to be evidence to support whether any confidential information has actually been disclosed.

Finally, the Family Court is a discretionary jurisdiction, meaning that the discretion of the presenting judge dictates which approach is taken, and based on context, understanding and perception, the conflict of interest can either be proven or disproven. Whatever the outcome may be, it is important for law firms and solicitors to exercise professional rules and their duties of fairness and confidentiality, and not represent a party whom is in opposition to a past client.

New South Wales drug law will be dramatically changed by new laws that divert individuals caught with small amounts of illicit substances away from the Courts. The recent changes will create a ‘two-strike’ process whereby individuals who are caught by Police with small quantities of illegal drugs for personal use will be issued with a fine rather than be sent to Court for a hearing.

This change comes after criticism of NSW drug law schemes being too harsh on those who possess small quantities for personal use only. Ryan Park, the NSW Health Minister, has commented that drug use is a health issue, and thus, the same is better addressed through health support rather than the criminal justice system. This change in NSW starts to fall in line with that of the ACT, where the Labour-Greens government also decriminalised the possession of small quantities of drugs. Interestingly, in September, NSW Premier Chris Minns commented following the change in the ACT that there were no plans to contemplate drug decriminalisation in NSW and that if he were to be voted in again, such conversations would occur afterwards. However, many MPs, along with many community members, were disappointed by this since there is an understanding that the hard stances against drugs in the past have only increased drug-related deaths.

Currently, individuals who are found guilty of possessing drugs have to attend Court and can face up to two years imprisonment or a fine of up to $2000.00. Under the new laws, Police officers will have the power to issue a Criminal Infringement Notice amounting to $400.00 to adults caught with small quantities of drugs for personal use on two occasions. Individuals could choose to pay the fine, or they will be given the opportunity to complete a drug and alcohol intervention where they will be eligible to have the issued fine wiped. While it is not mandatory for the Police to issue a fine, this power will be at their discretion to be used when they deem it an appropriate alternative to issuing a Court Notice.

These new laws will bring NSW in line with the other Australian states and territories and are also in agreement with what many experts in the area of drug law have stated and with the findings back in February 2020 by the Ice Inquiry led by Dan Howard. The Inquiry recommended a complete decriminalisation of drug possession in NSW, introducing pill-testing music festivals and abolishing drug dogs. The previous government took over two years to respond to these findings as there was a significant disagreement in the Cabinet regarding the suggested changes. Despite the changes to how individuals will be dealt with when in possession of small amounts of drugs, the government still maintains a hard stance on rejecting the proposal to run a pill-testing trial now that we are in the festival season. This is even so after the deaths of two young men and ten more people hospitalised after a festival at the beginning of this month.

Despite the many changes that are required in the area of drug law, this is an essential step in the right direction and hopefully the beginning of many. Yasmin Catley, the Police Minister, has stated that the new scheme will lead to better outcomes for low-level offending without compromising safety. This change will also align NSW with other Australian states and territories and is welcome by many nationwide.

A barrister is an independent legal practitioner who acts as an advisor in law and is a specialist advocate. With their experience and knowledge of the law, they make a great difference to the outcome of cases.

Barristers’ strengths are found within their Dispute Resolution in judicial and non-judicial contexts as they have gone through training that has equipped them with the knowledge and experience to navigate the variety of outcomes in a case. They work hand in hand with Solicitors and their clients to advise and choose the most appropriate path. Barristers are equipped with and provide specialised knowledge of their area of law, a full understanding of litigation tactics, the ability to persuade the client’s opponent or the Court of the merits of the case, detailed knowledge of the rules of evidence and their matter, and the skills to identify the most appropriate case preparation.

Many of us have heard the terms ‘QC’ ‘KC’, ‘Silk’, ‘Senior Counsel, and ‘Junior Counsel’ used in reference to barristers – but what do those terms mean? ‘QC’ and ‘KC’ are abbreviations for the terms ‘Queen’s Counsel’ and ‘King’s Counsel’, respectively. Both these titles are known to apply to those barristers who are considered ‘Senior Counsel’. While Her Majesty Queen Elizabeth II reigned, those who are now known as ‘KC’ were titled Queen’s Counsel. After the passing of Her Majesty and the accession of His Majesty King Charles III, Queen’s Counsel became King’s Counsel. These were used to reflect Australia’s British heritage and how our legal system was derived primarily from the Westminster system from the United Kingdom. Since 1993 and to the present, those who reaches seniority in the area who would have otherwise been afforded the title “QC’ or ‘KC’ are instead titled with Senior Counsel only.  However, barristers who were given then title now being ‘KC’ are able to retain it and as such there are very few barristers who are KCs in Australia left.

‘Senior Counsel’ are barristers who are of high seniority and eminence in that within the legal profession they have a high standing and whose achievements result in the assumption that they will provide outstanding advocacy services and advice. Barristers who are considered Senior Counsel will have the title ‘SC’ after their name and must have an exceptional degree of integrity, honesty, independence, diligence, skill and experience. Senior Counsel are nicknamed and colloquially known as ‘Silks’ as the robes they are required to wear in Court are made of silk material compared to that of Junior Counsel whose robes are made of cotton.

Junior Counsel is a barrister who has yet to attain the term of Senior Counsel. Junior Counsel is often briefed by their ‘leader’, who is Senior Counsel. What is required of them will depend on the given matter, however their primary function is to assist Senior Counsel.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

R U OK? Day happens on the second Thursday of September every year and is a campaign that aims to ignite meaningful conversations about mental health. After this year’s R U OK? Day, some firms were approached regarding their opinions on the current state of mental health in the legal profession.

There is no doubt in the legal profession, many individuals may experience high levels of stress, burnout, and lack of purpose as a result of long working hours and the intensity of the demands of the job.  Hamilton Locke managing partner, Nick Humphrey, has commented that this can negatively impact mental health and well-being overall. Significantly, the Leading Mentally Healthy Workplaces Report 2023 has reported that burnout has become a significant problem affecting many Australian workers – 44% reported that burnout affects their performance at work.

The Corporate Mental Health Alliance Australia has encouraged organisations and companies to begin creating and implementing safe environments that encourage an open dialogue and normalise discussions about mental health and to ensure that employee’s mental health is considered in business strategies.

Particularly in the legal profession, it has been noted that vicarious traumatic stress has increased, and family law firms have been encouraged to implement safety plans for the workplace for any staff that may be involved in family violence matters. It is a tough area of law where individuals are exposed to difficult conversations and circumstances through cases and ensuring that there is a plan for staff to seek help if needed is crucial. This is not only something that impacts staff, but it can also potentially impact a practitioners ability to work at the best of their ability. A Healthy Mind Clinical principal psychologist, Dr Adrian Allen, has commented that some factors that have the potential of increasing the risk of experiencing vicarious traumatic stress include an individuals own traumatic experiences, relating to a clients experience, and experiencing or being prone to anxiety and depression. The demands of the profession then intersect with these situations which can lead to lawyers and other legal staff vulnerable to developing vicarious traumatic stress.

To tackle these concerns, it is important to ensure that leaders are trained and coached to be attuned to the signs of burnout and to take steps to have conversation regarding mental health. Nick Humphrey has further commented that turning away from the culture of doing all-nighters, not getting any sleep and working all through the weekend is important to changing the impacts of the profession on mental health. He says: it is a marathon, not a sprint.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

In NSW, drink and food spiking reached record highs last year. “Spiking” is the term given to the action of placing drugs in another person’s drink or their food without their knowledge or consent. Under section 38A of the Crimes Act 1900 (NSW), the spiking of another person’s food is illegal and can result in a maximum term of imprisonment of 2 years, 100 penalty units, or both.

NSW Police received record breaking reports just in the last year of food and drink spiking incidents. The NSW Bureau of Crime Statistics and Research reported that between July of 2022 and June of 2023, there were a total of 220 reports of food and drink spiking. It is reported that this is the highest number of spiking reports since the number of incidents regarding the same which last occurred back in 2008. The spiking of food and drink has almost doubled since June 2019 where 115 reports were made – that is a 20% increase since 2019.

The predominant areas where spiking has been reported to occur in the last year include the Sydney CBD, Central Coast, Newcastle and Wollongong. Almost half of the total reports occurred in these areas. 71% of the incidents occurred in either clubs or pubs. Yet, despite the prevalence of these incidents, a very small proportion of the reports resulted in legal actions being sought. Out of the 183 reports lodged back in 2021/2022, only 2 (1.1%) led to a criminal proceeding.

NSW Police opinions that the rise in spiking incidents is due to individuals’ willingness to report the incidents rather than an actual increase in spiking behaviour. They note that recent campaigns that target spiking have educated and supported victims by encouraging them to come forward and have ensured that other members of the public are always on the lookout for their drinks and food. NSW has ensured that all spiking reports are thoroughly investigated.

A significant gap in the regulation and law in the area can be seen in the processes that licensed venues are required to take when these incidents occur on their premises. While they are required to log incidents of drink spiking, they are not required to inform the police of these events. The Alcohol and Drug Foundation has commented that although new data confirms spiking incidents to be higher than previous years, it may still be underreported as victims may feel that they will be blamed or not believed, meaning that real data of food and drink spiking incidents may be much higher than understood at this time.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

An update on the law

Following the passing of a landmark bill on Wednesday 20 September 2023 by the Western Australia Parliament, abortion by doctors has now been decriminalized across all of Australia and replaced with laws which are more health-focused and support reproductive freedom.

What are the changes?

The changes made by the Abortion Legislation Reform Bill 2023 include the following:

History and Current Issues

Western Australia was in fact the first Australian state to legalize abortion, following the introduction of the bill to decriminalize abortion by former Labor MP Cheryl Davenport in 1988. But since then, the state has fallen behind in the progress made by other states and territories with respect to viewing the medical procedure as a fundamental aspect of access to healthcare.

The issues with WA’s existing abortion laws were brought to stark attention following the Supreme Court decisions in Roe v Wade in the US, and the importance for laws in this respect to better reflect community values, expectations and modern clinical practice.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

The International Criminal Court’s (ICC) lead prosecutor Karim Khan has announced that the ICC will begin prosecuting cyber war crimes in the same way that kinetic and physical war crimes are.

The ICC is in an international court that investigates and, where possible and warranted, tries individuals who are accused and charged of some of the most serious crimes of concern to the international community such as the crime of aggression, genocide, war crimes, and crimes against humanity. In it’s endeavours the court aims to hold individuals who are responsible for such crimes accountable and to help prevent future crimes from occurring. The ICC aims to complement domestic national courts rather than replace them and as such it alone cannot achieve such goals.

Cyber war crimes involve acts whereby individuals from a nation-state attempt to infiltrate other nations computers and networks to cause a disruption or some type of damage.

The Hague, which hosts the ICC, has recognised that cyber war crimes have significant real-world consequences as it is a rapidly developing form of warfare that can be misused to carry out or help facilitate other war crimes and the aggression of one nation to another. As such, the ICC will begin, as part of its investigations, to collect and review evidence of this kind of conduct.

Under the Geneva Convention, a form of humanitarian law that regulates the conduct of armed conflict and aims to limit its effects, attacks against civilians constitute war crimes which forms the basis upon which many scholars and researchers in the area have pushed for cyber crimes to be recognised.

In fact, Ukraine has been calling for cyber crime to be considered a war crime as the Victor Zhora, the nation’s Chief Digital Transformation Officer, has stated that Russia has used these types of attacks to support their kinetic attacks which have been targeted towards civilians. It is noted that the State Service of Special Communications and Information Protection of Ukraine has already been collecting evidence to back up their claims and form a strong case.

As of yet, there has been no confirmation as to when these changes will come into effect. In a world where we all see the continuous and quick advancement of technology, it will be interesting to observe how the ICC and nations around the world begin managing such claims and cases.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

TW: This article has mentions of domestic and family violence.

Here are some common family law myths we've heard, and whether they are true or not!

“I can’t get a divorce unless my partner agrees to it”

This is false! The only legal ground for getting a divorce is to prove that there has been an ‘irretrievable breakdown’ of the marriage and there is no reasonable likelihood that the marriage may reconcile. Even if your partner does not agree to the divorce or want a divorce to occur, you can make an application on your own.

“My partner cheated so I will get more out of the property settlement.”

Incorrect! The Family Law Act 1975 (Cth) introduced the notion of ‘no-fault’ divorce. Prior to this legislation, one party could prove that the other party engaged in infidelity in order to have the offending party punished in some way, for example through the asset division.

However, the current law stands that reasons for divorce such as infidelity are irrelevant when determining the asset distribution split. In order to determine the property settlement split, the court will look at what is just and equitable, by examining factors such as the net value of the couple’s assets and liabilities, and the couple’s financial and non-financial contributions to the marriage and family.

“I automatically am entitled to 50/50 custody of my children”

The court puts the child’s best interests as a paramount consideration when determining parental responsibility, and under Australian law, children’s best interests often involve having a meaningful relationship with both their parents, so long as they are kept safe from harm. However, a 50/50 parental responsibility split is not always ensured, and numerous factors are considered including certain aspects of parenting and who the primary carer may be, ability of both parents to maintain an amicable co-parenting relationship, and special needs of the child.

“Since I have separated with my partner, one of us need to move out”

Not necessarily, but it is recommended! One of the requirements for a divorce is for both parties to be separated for 12 months, however you and your partner can be separated under one roof. There are many reasons why couples do this, including financial dependence or children. So in order to prove that you were separated for 12 months whilst under the same roof, parties will need to demonstrate that they had separated finances, were not sleeping in the same bed, told family and friends about the separation, and ceased almost all social activities between each other. Parties can make this claim by preparing a written statement, called an affidavit.

“Domestic or family violence is only physical abuse”

Abuse within relationships occurs in many forms, even an individual’s behaviour towards their partner may constitute abuse. Whilst physical abuse is the most well-known and evident form of abuse, other forms include verbal abuse, coercive control, financial abuse, emotional manipulation and sexual abuse. Australian law recognises that domestic and family abuse extend beyond the physical aspect, through enforcing Apprehended Violence Orders that can restrict a person’s actions and behaviours.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

envelopeprinterphonemap-marker