Excessive use of police powers in social justice contexts has been the topic of public criticism on numerous occasions, with respect to the impediment of individual rights to protest and right to privacy.

These concerns arose once again, ahead of the pro-Palestinian rally held on 15 October 2023 in Hyde Park, Sydney CBD. Comments by the NSW police Acting Commissioner, David Hudson, and NSW Premier Chris Minns advocated the use of “extraordinary powers” to search protesters without reason and arrest and charge those who refuse to identify themselves at Sunday’s planned pro-Palestinian rally.

Emergency Powers under Part 6A of the Law Enforcement (Power and Responsibilities) Act 2002 (NSW)

Introduced following the 2005 Cronulla race riots, these powers in Part 6A of the Law Enforcement (Power and Responsibilities) Act 2002 (NSW) assist police in defusing and controlling large-scale public disorder. The powers are enlivened when the threshold of an ‘actual or threatened large-scale public disorder’ is met. While what constitutes ‘large-scale’ is left ambiguous in the legislation, a ‘public disorder’ is defined in Part 6A as a ‘riot or other civil disturbance that gives rise to a serious risk to public safety, whether at a single location or resulting from a series of incidents in the same or different locations’. Once approved by either the Commissioner of Police, Deputy Commissioner or Assistant Commissioner, the powers enable the NSW Police Force to undertake a range of actions, including some of the following.

Section 87I - Power to place or establish cordon or roadblock

This power enables the police to establish a roadblock or place a cordon around a target area, for the purpose of stopping and searching people involved in the 'large-scale public disorder' or to prevent persons from entering or leaving the area without the permission of a police officer.

Section 87K - Power to search persons

Bodily searches without reasonable cause are authorised under this section, if a person is in an area where the power is authorised. A person can be detained by a police officer for as long as reasonably necessary to conduct a search.

Section 87L - Power to obtain disclosure of identity

Individuals in an area where use of the emergency powers are authorised, must disclose their identify if requested by a police officer to do so. Refusal to do so without  a reasonable excuse will result in a fine or 12 months imprisonment.

Use of the Powers in the Context of Peaceful Protest

Violent behaviour and the chanting of antisemitic slurs at the earlier pro-Palestine rally in front of the Opera House on Monday were the primary justifications for use of the extended police powers. Notably, in the Parliamentary debate on the Part 6A emergency powers and Second Reading Speech, it was unequivocally affirmed that the powers would not be used in the policing of peaceful rallies and demonstrations. However, the Legislative Review Committee’s review of the Part 6A powers included criticisms that the right to peaceful assembly and right to privacy were affected by the extended powers (NSW Ombudsman, Review of Emergency Powers to Prevent or Control Disorder).

While the rally on Sunday was originally planned as a march, the failure of the organisers to submit a form for the protest 7 days in advance meant that the event was changed to a static rally. Reports following the rally confirmed that while over 6,000 people gathered, no arrests were made. Notwithstanding the positive and peaceful outcome of the event, it is important to keep note of the potential imbalances between the extension of police powers for public safety, against individuals’ rights to peaceful assembly and privacy. If arrested, individuals will often be required to participated in a police interview. It is important to note that individuals under arrest reserve the right to remain silent, and to seek independent legal advice before answering any questions.

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

Appeals are applications to higher courts by a party who believes that the decision at first instance was incorrect. Appellate work is a special area of law and usually requires specialist lawyers who are knowledgeable in the area of appeals. Appeals are primarily heard and determined in the Federal Court in its appellate jurisdiction.

 

Jurisdiction

Across Australia, numerous courts have a specific ‘jurisdiction’, which refers to the scope of a Court's power to decide on a particular issue. This will usually depend on the purpose for which a Court was established and is typically defined within the legislation establishing said Court. Jurisdiction is often determined based on the location of the Court, the type of parties to a case or subject matter, the amount of money in the dispute or the penalties that can be handed down. Other Courts may also have a specific jurisdiction, like the Children’s Court or have a broader general jurisdiction, like the Supreme Courts of the states and territories. The distinction between jurisdictions also applies to the time a case is heard. If it is the first time that a matter is heard, then that will mean the Court at first instance is hearing a matter in its ‘original jurisdiction’. Whereas if a matter is heard a second time against the decision made by a Court in the original jurisdiction, the Court hearing that matter again will have ‘appellate jurisdiction’.

The appellate jurisdiction of the Federal Court of Australia includes:

Appeals sometimes reach the High Court of Australia; however, there is no automatic right to do so. An individual may apply to the High Court for permission to appeal, called a ‘special leave’ application. However, this is only granted in the most exceptional cases.

 

Types of Appeals

Strict Appeals: Where a Court with appellate jurisdiction determines whether the Court at first instance made a mistake, and it will be constrained to only considering evidence that was available to the first Court.

Rehearing Appeals: Where the appellate Court will consider the law at the time of the appeal and any events leading up to it. Here, fresh evidence can also be brought in.

Appeals De Novo: Where the appellate Court retries all the issues heard at first instance with the opportunity to consider fresh evidence. Each party will be able to present their case, and the Court will hear the whole matter and is not constrained to only reviewing the decision of the first Court.

 

Types of Review

Merits Review: This applies to decisions by government agencies rather than by the Courts. This right is created by legislation where a person is directly affected by the decision of a government agency and thus allows for the decision to be reviewed by other government officials.

Judicial Review: This is a common law right, meaning it is not derived from legislation. This applies to a higher appellate court, whether it is a decision by a government agency or by a lower Court or Tribunal. Traditionally, the grounds that can form the basis of a judicial review application include:

 

Appealing Discretionary Decisions

Some decision-makers in particular areas of law (e.g., family law, immigration law, probate law) have discretionary power. This means they can decide on a matter by making a judgment and considering all relevant information on a case-by-case basis. With discretionary powers, the decision maker has the choice of either choosing to exercise a particular power (or make a particular decision) or not. Conversely, some decision-makers have mandatory powers where they have an obligation to exercise a particular power in a certain way. Appealing a decision by a decision maker with discretionary powers is different to usual appeals.

In 1936, the High Court laid down the principles of appealing the decision of a discretionary decision maker in the case of House v The King (1936) 55 CLR 449. Justices Dixon, Evatt and McTiernan identified four grounds on which a party may make an appeal:

  1. The decision maker considered irrelevant material.
  2. The decision maker failed to consider relevant material.
  3. The decision maker made a mistake of fact; or
  4. The decision was unreasonable or wholly unjust.

The case determined that a person seeking an appeal must establish that the decision maker made an error while exercising their discretion. These grounds are known as ‘House Errors’ and continue to be used today. The grounds identified in this case can be applied to cases in criminal law, civil penalties, family proceedings, costs, valuation of property, quantum of damages and more.

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.

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.

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.

 

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.

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.

envelopephonemap-marker