Active Super who is stated to be one of Australia’s leading responsible super funds has become a party to civil penalty proceedings commenced by the Australian Securities and Investments Commission (ASIC) for allegedly greenwashing their Impact Report.

The term ‘greenwashing’ is used to describe organisations that spend significant funds and time on marketing themselves as environmentally friendly than on actually taking steps to minimising their environmental impact. It is a marketing strategy used by organisations to show and persuade the public that the organisations business practices and policies are environmentally sound. They are also alleged to have made misrepresentations regarding environmental and social impacts and governance.

The proceedings are being heard in the Federal Court and they allege that Active Super misled the market and consumers by making claims that it was an ethical and responsible superannuation fund. Recently, there has been a crack down by ASIC on numerous organisations for greenwashing with legal claims commencing against EnergyAustralia and Vanguard and even Etihad who faced a complaint by the Australian Competition and Consumer Commission instead.

Active Super currently has an estimated 89,000 members with $13.5 billion superannuation assets. They stated on their website that Active Super had eliminated investments that pose too great of a risk to the environment and the wider community such as the manufacturing of tobacco, gambling, and oil tar sands. They also stated that they included Russia in the list of excluded countries after the invasion of Ukraine was announced. As such, ASIC is now claiming that Active Super has exposed its 89,000 members to investments which it advertised they had restricted or eliminated altogether.

From February 2021 to June 2023, Active Super is reportedly alleged to have 28 holdings, both directly and indirectly, in organisations that were involved in tobacco manufacturing, gambling, coal mining, oil tar sands and Russian entities.  This is why ASIC is now seeking declarations, adverse publicity orders, pecuniary penalties and an injunction against Active Super.

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 War on Drugs

Australia is no stranger to the war on drugs. With over 1.5 billion dollars invested into Australia’s drug criminalisation, per year, the war on drugs is a great priority of the Australian Government. With a myriad of legislation including, but not limited to, the Narcotic Drugs Act 1967 (Cth), Therapeutic Goods Act 1989 (Cth), Customs (Prohibited Imports) Regulations 1956 and Narcotic Drugs (Licence Charges) Regulation 2016 (Cth), Australia drug laws have a retributive purpose; to criminalises and punish the possession, cultivation or trade of drugs. The status of Australia’s drug use must be rather low then, right? In reality, despite copious amounts of funding, legislation and police efforts, the Australian public spends over 10 billion dollars on drugs annually, and consumed an estimated 15.7 tonnes of methylamphetamine, cocaine, MDMA and heroin in 2020–21, according to the Australian Criminal Intelligence Commission.

Clearly, the retributive attempts of the law to punish drug users are not an adequate enough deterrent to stop the Australian public from consuming potentially dangerous drugs. As such, the nation’s capital city, Canberra, has taken a leap towards decriminalisation. This follows the Drugs of Dependence (Personal Use) Amendment Act 2022, which aims to prioritise harm reduction.

What is Decriminalisation?

 Decriminalisation, not to be confused with legalisation, allows wrongdoers to be dealt with by the law from a civil standpoint, rather than a criminal standpoint. This means that, in most cases, perpetrators may no longer face jail time for small possessions of illicit drugs. Whilst this may seem like a radical switch for many Australians, decriminalisation has already proven itself to reduce addiction and death internationally, the most renowned example being Portugal’s leap towards decriminalisation in 2001.

In Canberra, as of 28 October 2023, it will not be a criminal offence to carry drugs, including but not limited to, 1.5 grams of amphetamines, cocaine, methylamphetamine and 3,4 Methylenedioxymethamphetamine (commonly known as ‘MDMA’) 50 grams of Cannabis and 1 gram of Heroin. Rather than be arrested, people found in possessions of these quantities may be issued with a “simple drug offence notice”. The person will then be able to pay a $100 fine or attend an assessment and harm reduction session.

Why is Decriminalisation Important and What are the Next Steps?

Criminalising an issue without addressing the social and political drivers that make Australians susceptible to dangerous drug use does not work to eradicate the problem. Similarly, criminalising the drug supply, without attempting to alleviate drug demand, is a short-term, and unjust approach. In order to increase the safety of our communities and decrease harm, decriminalisation steers wrongdoers away from the Criminal Justice System and allows for education and medical attention where needed.

So, what are the next steps for decriminalisation in Australia? Australia needs to further address the harms associated with drug composition – that is, all the substances inside the drugs sold through illegal trade. One of the greatest catalysts for a bad drug reaction is the quality of the drugs – and when illicit drugs like MDMA are not sold in pharmacies and by medical professionals, they cannot be regulated. As such, drug users may find that their substances actually include baby powder, glass and sawdust. One answer to this is pill testing, again relating back to allowing Australians to educate themselves on the substances they intake and seek medical help.

Whether these changes come, we’ll just have to see.

If you need support in relation to your drug use, call the National Alcohol and Other Drug Hotline on 1800 250 015.

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

When hearing your Family Law-related case before a judge, courts will begin by considering the presumption of “equal and shared responsibility”. This means that courts must consider arrangements for the child to spend time with each parent and for each parent to share an equal say in decisions relating to their children.

This was often misconstrued. Rather than the law’s intention for a child to spend a nominated period of time with each parent, it was often misunderstood that each parent had a right to spend the same, equal or a significant amount of time with the child.

As a result, the Family Law Amendment Bill 2023 has been proposed. Simplifying a court’s process to determine Parenting Orders, the Bill aims to place the child’s safety, wellbeing, and best interests at the forefront of any decision made on parenting arrangements.

The Bill proposes the following changes:-

  1. To remove the presumption of “equal and shared responsibility”;
  2. To simplify the list of factors considered when assessing the best interests of the child;
  3. To clarify when an existing parenting order may be reconsidered.

Removing the presumption of “equal and shared responsibility”

According to Section 61DA and 65DAA of the Family Law Act 1975, the court is required to apply a presumption, which says parents must have equal shared parental responsibility for the child – equal or substantial and significant time.

The wording is to be amended to a presumption of “joint decision making on major long-term issues”, as to prevent misinterpretation of “equal time” spent with the child.

This amendment has been proposed with the aim of the child’s best interests being of most importance.

Simplifying the list of factors considered when assessing the best interests of the child.

In abolishing the “equal shared responsibility” presumption, the best interests of the child will be the primary focus. Judges will be required to assess and review the following factors when determining what their best interests entail:-

Clarifying when an existing parenting order may be reconsidered.

The Family Law Act 1975 currently does not specify the circumstances as to when parties may seek revisions on a Parenting Order. Taking this issue into account, the Bill provides the following conditions to revise an existing Order:-

More information on the progress of the Bill can be found here.

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 use of AI in legal proceedings has arisen again as a subject of discussion following a trademark battle in India between Louboutin, and M/S The Shoe Boutique.

ChatGPT in Louboutin Trademark battle

The High Court of Delhi proceedings focused predominantly on Louboutin’s red sole trademark and spiked shoe design, which Louboutin’s counsel argued was breached by shoes sold by M/S The Shoe Boutique. As the elements of trademark were made out, Justice Singh ordered an injunction against M/S The Shoe Boutique from selling shoes which slavishly imitate Louboutin designs.

But more interestingly the Court’s comments on the trademark elements of the proceedings encompassed discussion of the use of AI-generated evidence in courts. As part of its arguments on the acquired distinctiveness of Louboutin’s products, Counsel for Louboutin relied on a response from ChatGPT to demonstrate the association of red soled shoes to the brand. A screenshot of the ChatGPT interface highlights ChatGPT’s affirmative response to the question of whether Christian Louboutin is “known for spiked men’s shoes”. Although the Court accepted other evidence to the brand’s acquired distinctiveness, such as Louboutin’s advertising and long-standing use of red soled designs, it rejected the use of ChatGPT’s response as evidence of the same.

Justice Singh’s reasoning followed that the answers provided by Large Language model-based chatbots such as ChatGPT do not satisfy the standards of reliability and accuracy for legal evidence, given that significant possibilities of incorrect information and Imaginative data persist. The Court stated that “AI cannot substitute either the human intelligence or the humane element in the adjudicatory process, [and] at best the tool could be utilised for a preliminary understanding or for preliminary research and nothing more”.

Views on Use of AI in Court Proceedings

Courts in other jurisdictions have echoed similar sentiments regarding the use of generative AI tools in legal proceedings – particularly the use of such tools directly and significantly in the drafting of legal documents to be filed. In the United States, a New-York based law firm and 2 experienced lawyers were fined almost $7,500 for misusing ChatGPT in a court filing for a personal injury case. Even in this circumstance, the Court did not condone the use of ChatGPT as a tool for assistance. Rather, the Court’s censure was directed to the failure of the legal professionals to undertake due diligence in confirming the accuracy and relevance of citations and arguments made in the court filing.

The rise of commonplace and innovative uses of AI is a phenomenon which we will continue to watch unfold in the coming months and years, and ultimately, it requires areas such as the legal sector to have open discussions on the limitations of using such tools, as well as the undeniable advantages from incorporating AI into our daily work.

On Wednesday the 30th of August, the Federal Court found that Judge Salvatore Vasta made numerous errors by going beyond the jurisdiction and engaging in what was called a “gross and irregularity of procedure”. This is a result of Judge Vasta holding a man, known only by his pseudonym Mr Stradford, in contempt in late 2018.

This is a case that has changed Australian judicial history as a judge has never been sued in their personal capacity for a determination they made sitting on the bench. The original case pertained a property division between a divorced couple who were both unrepresented. In a property division case, both parties are required to make full and frank disclosure of all liabilities and assets so that a split of their property can be made in a way that is just and equitable. Judge Vasta is said to have thought that the ex-husband, Mr Stradford, was not being honest regarding his financial situation and not providing full and frank disclosure of his documents. Mr Stradford had outlined that he was trying his best to do so, but that certain people and organisations would not give him the documentation he was requesting. Judge Vasta warned Mr Stradford that if the documents were not presented that he would deal with the matter by way of contempt. Holding an individual in contempt is a power that courts have when it is considered that an individual has broken the law by disobeying or disrespecting the judge or court procedure – a power reserved the most serious situations.

It was found that Judge Vasta told Mr. Stradford to “bring your toothbrush”; in other words, he had already made up his mind about whether Mr Stradford would be held in contempt prior to conducting the necessary hearing. He was sentenced to 12 months for contempt of court, to be suspended after 6 months. He was taken from the court, transferred to the prison system and was allegedly threatened in the van on the way there.

The court found that because Judge Vasta acted outside of the powers he had as a judge that he was largely responsible for the false imprisonment of Mr Stradford, and therefore judicial immunity could not protect him. Therefore, there is an expectation that Judge Vasta will pay for any damages Mr Stradford is entitled to out of pocket.

This is a landmark case as it shows that if judges act extremely beyond their powers and what is deemed appropriate, they may be held personally liable.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8917 8700.

 

The Hague Convention on the Civil Aspects of International Child Abduction, commonly referred to as “The Hague Convention” is a multilateral treaty ratified between Australia and numerous other countries. This treaty assists those seeking the return of abducted children to their home country, and provides processes in which a parent can seek to have their child returned.

When a parent removes a child out of their home country, without the consent or knowledge of the other parent, the procedures in getting the child back is an incredible complex process, however the enforcement of the Hague Convention through Australian domestic law makes international child abduction a punishable offence. This is through the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).

When a child is abducted to Australia, it is primarily the role of the Attorney General’s Department or the Department of Communities and Justice to satisfy the requirements under the Hague Convention, and the Regulations require Australian courts to order the return of a child to his/her home country unless certain specific and exceptional circumstances exist. The best interest of the child is not a paramount consideration and the discretion of a court to refuse to order the return of a child to his/her home country is very limited. The same standards are imposed by the Hague Convention on all signatories of the treaty.

If a child is abducted to a country that is not a part of the Hague Convention, then you may seek assistance from the Consular Branch of the Department of Foreign Affairs and Trade, or an application may be made under the other country’s local laws.

If you are concerned that the other parent of family member may take a child without your knowledge or consent, you should seek immediate legal advice in order to ensure the safety and wellbeing of the child.

Should you wish to discuss this matter further, please do not hesitate to contact our offices on 02 8917 8700.

In Australia, 1.5% (4,754) of women who gave birth in 2021 were under the age of 20.

Whilst the key focus in a teen pregnancy should be on receiving proper health care and support, these are the legal facts you should be aware of:-

Telling others

  1. The law does not require someone who is undergoing a teen pregnancy to tell family members, their parents, or anyone who is close to them.

Receiving treatment

  1. A doctor will need to assess and determine whether the patient is able to consent to medical treatment, without the supervision of parents, if you are under the age of 18. The doctor may consider the patient’s maturity (their ability to comprehensively understand the potential outcomes of a pregnancy, and the required steps of treatment to ensure wellbeing and safety), their age, and the severity or seriousness of the need for treatment.
  2. If a doctor decides that the patient has a capacity to consent, medical treatment may be discussed and serviced with no requirement to have parent’s knowledge or consent. This will mean that any treatment or information discussed will be confidential.
  3. If a doctor decides that you do not have the capacity to provide your informed consent, they may request for a parent’s involvement and consent.

Terminating a pregnancy

  1. The law states that the individual who is undergoing a teen pregnancy is the person who will decide if the pregnancy should be terminated.
  2. The consent of the intimate partner is not required.
  3. There is no requirement to seek the consent of parents (if you are over the age of 16). Someone who is pregnant and under the age of 16 must discuss with a health care professional, social worker, or counsellor if they are unable to tell their parents.

Ultimately, it is crucial for anyone undergoing a teen pregnancy to speak with a health care professional, social worker, or counsellor in order to fully understand the options and consequences of pregnancy and treatment.

Services which provide support include: your local GP, The Women’s Information Service, SHINE SA, Kids Help Line, Legal Help Line, Family Planning NSW, ReachOut, and many others.

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

Sources:

https://lsc.sa.gov.au/cb_pages/young_people_and_pregnancy.php

https://www.aihw.gov.au/reports/mothers-babies/australias-mothers-babies/contents/focus-population-groups/teenage-mothers

Your rights at the doctor

“Football is also ours, that means history will be made, and that would make us very happy”. These are words of Irene Paredes, captain of the Spanish Women’s National Football Team, and with the teams win against England in the 2023 FIFA Women’s World Cup, Paredes was proven right. However, celebrations were cut short during the country’s historic win when Spanish soccer federation president Luis Rubiales non-consensually kissed player Jenni Hermoso on the lips.

The criticism placed on Luis Rubiales is neither unprecedented nor surprising. Throughout the tournament, Rubiales’s inappropriate behaviour was evident, from grabbing his crotch before thousands of fans, joking about marrying Hermoso whilst in the Women’s changing rooms and throwing player Athenea del Castillo, over his shoulder and parading her around the pitch. Rubiales has also been under fire for supporting team coach Jorge Vilda, who was publicly criticised in 2022 for his emotionally abusive, authoritarian coaching style, which included homophobia and Vilda monitoring the locations of his players.

As a result, eighty-one players eligible for the National Spanish women’s team have signed a letter declaring that they will not play for Spain until the current leadership is replaced. Many officials in the Spanish Football Federation have now called on the suspension of President Luis Rubiales. An overhaul in the federation’s management has also been called for.

In addition to suspension, Rubiales may be looking at criminal charges, with prosecutors at Spain’s top criminal court confirming that a preliminary investigation is underway on the grounds of sexual assault. Despite these claims, Rubiales maintains his position of innocence, stating that the kiss was “spontaneous, mutual, euphoric and consensual”.

Australia's Consent Laws

This scenario, which has garnered international attention on the meaning of consent, allows Australians to reflect on the definitions of consent in our own country and laws. In New South Wales, the Crimes Act 1900 (NSW) hopes to provide clarity on this matter and protect people from sexual exploitation and abuse. Accordingly, Section 61HF recognises the following:

(a) every person has a right to choose whether or not to participate in a sexual activity,

(b) consent to a sexual activity is not to be presumed,

(c) consensual sexual activity involves ongoing and mutual communication, decision-making and free and voluntary agreement between the persons participating in the sexual activity.

Similarly, section 61HJ (1) confirms that a person does not consent to a sexual activity if the person does not say or do anything to communicate consent. As such, Swinburne law lecturer and executive director of Rape and sexual Assault Research and Advocacy, Dr Rachael Burgin, confirms that assuming consent on the basis that a person does not say ‘no’ is not valid.

Overall, it is unfortunate that the accomplishments of the Spanish women have been overshadowed due to a disregard of the players free and voluntary right to engage in sexual activity. Whilst Captain Paredes was right, that attitudes towards women in football are changing, the behaviours and attitudes of those in the background have a long way to go.

If you or someone you know has faced sexual abuse, please contact NSW Sexual Violence Helpline on 1800 424 017 or 1800RESPECT on 1800 737 73.

Should you wish to discuss this matter further, please do not hesitate to contact our offices on (02) 8917 8700.

The Cab Rank Principle is a rule outlined by the Legal Profession Uniform Conduct (Barristers) Rules 2015 – Regulation 17 which outlines that a barrister must accept a brief from a solicitor or client to appear before a court if:

(A brief contains a summary of information that is given to barristers regarding a case with legal points that they are able to utilise in proceedings in court.)

The term “Cab rank” rule is derived from the idea that a Barrister must act on a first come, first serve basis, similar to the way a cab driver must drive the next person in like at the rank. This principle is a foundational to the Bar and comes back to the rule of law; the idea that no individual is above the law and hence it should be equally accessible and applicable to everyone. The rule has a further basis in that a barrister does not only owe a duty to their client, but also a duty to the administration of justice and thus they must maintain high standards of professional conduct.

As Justice Brennan said:

“The observance of the rule is essential to the availability of justice…it is unacceptable that the privileges of legal representation should be available according to the predilections of counsel or only on the payment of extravagant fees. If access to legal representation before the courts were dependent on counsel’s predilections as to the acceptability of the cause or the munificence of the client, it would be difficult to bring unpopular causes to court and the profession would become the puppet to the powerful” – Giannarelli v Wraith (1988) 165 CLR 453.

Presently, this rule is only applicable to legal professionals who practice as barristers but there have been discussions as to whether this is a rule that should also apply to solicitors considering that all legal professionals, irrespective of whether they practice as barristers, conduct their work primarily to serve the community. Solicitors are also officers of the law and also have their own duties to uphold justice. Thus, if they are able to pick and choose the cases they work on, there may be a danger that those who may be perceived to have unfavourable cases by the public, or those that are marginalised, may be denied access to justice.

Once again noting that lawyers do not only have a duty to clients, but also the wider community and the legal system, it is important to have discussions about the rule and what it will look like in the future.

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

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