“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:

• The brief is within the barristers expertise and skills;
• The barrister is not already committed to other professional engagements which would prevent       them from accepting the brief, and
• The fee offered is acceptable;

(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.

We have all experienced the phenomenon of ordering too much food and realising that our eyes may be bigger than our stomachs. Whilst one may assume that, once their meal is paid for, they own their meal and are able to act accordingly, deciding what happens with the leftovers, some Australian restaurants are opting for a ‘no-takeaway policy’.

The aim of enforcing a ‘no doggy-bag’ rule is generally to ensure that consumers cannot fall ill to food that has been taken outside of a restaurant’s premises, where a restaurant is unable to control the environment in which the meal is stored. This is because food substances which have been left in bacteria-infested environments known as ‘Danger Zones’, such as a hot car, may lead to food poisoning, as warned by Department of Health. It is this risk that makes restaurants potentially liable.

One man from Sydney, Ian Hogan, described his experience at Crowne Plaza in the Hunter Valley who refused takeaway of his young daughter’s meal, despite paying for the meal and the facilities associated with the Hotel. Standard 3.2.2 of the Food Safety Practices and General Requirements does not express a legislative requirement for restaurants to provide or refuse takeaway, and so the ability to refuse takeaway is within the discretion of each individual restaurant.

Other establishments, such as the Shangri-La Hotel in Sydney, are meeting patrons half-way, requesting the customers signature on waivers and indemnity forms to ensure no liability on behalf of the restaurant once their food has left the premises. Accordingly, once the food is taken off the food business premises, each customer is responsible for its safe storage and handling.

This new practice has been refuted by many restaurants, namely Hana Assafiri, the founder of Fitzroy restaurant Moroccan Soup Bar, who has stated “I always encourage people to take leftovers home if they want to. It's ridiculous that restaurants should have to fear litigation”. Instead, these restaurant owners are using techniques to mitigate the risks of bacteria breeding, like Scott Brown of Grana, Sydney, who is educating his customers about the dangers of the Danger Zone, being between 5°C and 60°C.

The Department of Health also encourages the use of sticky labels on food hygiene, which provide care-instructions for customers, telling diners to cool the food quickly, reheat until steaming and to dispose of after 24 hours.

In Australia, more than $8 billion-worth of edible food is disposed of on an annual basis, and the increase in reusing takeaway will only accelerate this further. Let us know what you think, is the no takeaway policy a step towards greater care of food practices, or is this contributing to a much larger issue?

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

On 6 August 2023, the Commonwealth Bank of Australia (CBA) announced Australia’s first police referral pilot in New South Wales (NSW). The pilot will aim to revolutionise how banks report technology-facilitated abuse, utilising artificial intelligence and other technologies to alert law enforcement.

In the age of digital banking and ‘apps’, bank users are more susceptible than ever to technological abuse. To combat this threat, CBA utilises a range of interventions to make online banking safer. For example, CBA blocks over 400,000 transactions annually by using artificial intelligence to detect inappropriate language sent via the CommBank app. The newly announced police reporting pilot, which will launch in mid-September of this year, will take safety precautions to the next level, and allow CBA to identify repeat abuse faced by victims. CBA will then reach out to the victim and ask consent to contact NSW police to report the abuse.

As a result, users will be provided with a streamline and fast process of reporting abuse. This pilot will not only support victims, but will also prevent abuse, paving the way ‘for more effective collaboration in the fight against domestic and financial abuse’ said Angela Macmillan of CBA Group Customer Advocate.

If you or someone you know with to discuss the issue further, please do not hesitate to contact our offices on (02) 8917 8700.

If you or someone you know is experiencing domestic or family violence, call 1800RESPECT (1800 737 732) or visit www.1800RESPECT.org.au.

In an emergency or if you’re not feeling safe, always call 000.

Jumping into pop-culture news for this article from F&G, let’s follow the most recent legal battles relating to conservatorships in America, and how that translates to guardianship laws in NSW.

Britney Spears' Conservatorship

Public knowledge about conservatorships boosted exponentially following the debacle that was Britney Spears’ 13-year conservatorship, which was terminated after nearly 14 years by a Los Angeles court ruling in November 2021. Spears’ case revealed the extreme lengths to which an individual living under a conservatorship or a guardianship order, can be governed – including her being unable to remove a contraceptive device so she could fall pregnant.

ABC News notes that 1.3 million Americans live under strict conservatorships. Australia does not have conservatorships as they exist in the United States. Instead, each state and territory harbour various guardianship and financial management laws which mimic the function of a conservatorship. A report by the Australian Guardianship and Administration Council notes that there are a total of 19,879 guardianship and administration/financial management orders active between 1 July 2021 and 30 June 2022.

The NSW Equivalent of an American Conservatorship

In NSW, guardianship orders can be sought for individuals seeking to appoint another person with the ability to make decisions about their health, accommodation, services and other lifestyle matters. Similar to the conditions of Britney Spears’ conservatorship, individuals subject to a guardianship order are not able to consent themselves to medical and dental treatment. There are limitations on who can be the subject of a guardianship order. Unfortunately, these limitations still raise significant concerns about the impact of substituted-decision making where supported-decision making can be more beneficial for some individuals under guardianship orders.

The NSW Civil and Administrative Tribunal (NCAT) is responsible for reviewing guardianship applications and making orders. The NCAT will only grant a guardianship order, where the following requirements are satisfied:

• The person being subject to the order has a decision-making disability and is over the age of 16;
• The consequence of the disability is such that the person is partially or wholly incapable of managing themselves; and,
• There is a need for the person to have a guardian appointed.

The Intended Purpose of a Guardianship Order vs the Practical Effect

As these requirements highlight, guardianship orders are intended to serve as ‘support’ mechanisms for those with a disability – this may be a mental health condition, an intellectual disability, or a disability affecting someone’s ability to communicate their decisions. The Guardianship Act 1987 (NSW) states that the welfare and interests of persons with disabilities should be given paramount consideration and that their freedom should be restricted as little as possible.

In practice, however, there are minimal checks and balances on how a guardian undertakes their role to substitute an individual’s capacity and consent with their own – which is discussed by the Intellectual Disability Rights Service in this report. Australia has also been subject to criticisms by the United Nations. Despite being a signatory to the Convention on the Rights of Persons with Disabilities (CRPD), the UN finds that Australia has failed to adhere to the values and principles of the CRPD, by continuing to implement substituted decision-making regimes that enshrine restrictive practices.

If you or someone you know wish to discuss this issue further, please do not hesitate to contact our offices on (02) 8917 8700.

Although the Matildas loss in the FIFA Women’s World Cup semifinal hit home for everyone, there are still so many positive points that we can learn from their achievements.

There is no doubt that all of Australia is incredibly proud of the Matildas’ achievements recently and the incredible impact they have had for women’s soccer. The semifinal match was the most watched TV program since 2001, as Channel 7 says that its broadcast of the game reached 11.7 million people. However, some comment that this number could be even greater as it does not take into account those individuals who streamed them match on Optus Sport, those who attended watch parties and the many who tuned in at their local pub.  There is no doubt that they have reached the hearts and minds of many across the country and will be remembered as inspiring many young girls and boys who aspire to play soccer in the future.

Following the match, one fan favourite, Sam Kerr, called for more funding for Women’s soccer in Australia. She noted that the legacy people remember is what the players do off the pitch rather than on it. She stated that funding is needed everywhere in the area and that she hopes the latest tournaments change the way it is done.

The team has shown a great example of how one can recognise areas of improvement while not taking away from the hard work one has done. They recognised where they could have done better or worked harder but did so while still acknowledging the huge impact that they have had and their accomplishments. They are a great example of how the dynamics in a team and collaboration can make the world of a difference.

We have learnt great things from the Matildas, from comradery to perseverance. Win or lose, the girls support each other fiercely, which is something every one of us should aim to achieve amongst our friendships and relationships.

They united the country in an incredibly special way. Many have a newfound obsession for women’s sport and maybe that is the greatest victory of all.

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

Breaking news from 9 News Australia on Wednesday 9 August 2023  followed the story of a woman who was dismissed from her 18-year tenure at an insurance company, after her employer was unsatisfied with her work productivity and performance while working from home.  What may seem a normal instance of workplace dismissal was made more controversial by the fact that the woman’s employer had been monitoring her laptop activity through logged keystrokes and assessing the amount of work she was doing from home.

Understandably, this has raised concerns from employees regarding their right to privacy in light of employers’ rights.

Is it legal for employers to spy on employees in this manner?

Yes – in NSW, employers can monitor the usage of equipment provided to employees for work purposes. Actions to be monitored can generally include time spent on work-issued devices such as laptops and phones, as well as the content of movements on such devices (i.e. text messages on a work phone). Reports also identify employees tracking location, mouse movements, and capturing screenshots.

How is this data obtained?

With the intention of more accurately measuring productivity and efficiency outside of the physical workspace, employee monitoring software saw a significant rise in demand during the COVID pandemic. The use of such spyware on company-supplied equipment has continued into the post-pandemic era, and concerns arise where the focus of the tool turns to surveillance and control. In most circumstances, employers must also notify employees of the software being installed on work-issued devices and explain what is being monitored, 14 days prior to the installation of such software.

What can employees do to protect themselves?

The key action to take is to check the terms of your employment contract and your workplace policy. These documents are essential as they:

• outline the extent to which your employer is entitled to monitor uses of work-issued equipment
• state the expectations of employee conduct in the course of work and consequences of failing to meet set standards.

As the panel discussion for the program noted, the increase of working-from-home arrangements and its normalisation during and after the peak of the COVID pandemic has ushered both positives and complexities in how workplaces function. The flexibility offered by work-from-home arrangements enable greater employee engagement and productivity for some. However, issues arise where the benefits are misused and create an imbalance between privacy protections for employees and employers right to enforce a standard of workplace conduct.

If you or someone you know wish to discuss this issue further, please do not hesitate to contact our offices on (02) 8917 8700.

Kamilaroi woman Justice Louise Taylor was appointed to the ACT Supreme Court on 26 July 2023, as the territory’s sixth judge, making her the first Indigenous Australian woman to be appointed to a Supreme Court. She has been appointed as a resident judge and has made history as it is the first time an Aboriginal woman will hold the prestigious position in the ACT. This will be the second time Justice Taylor makes history as she was also the first Aboriginal woman to be appointed as a Magistrate in the ACT back in 2018. Justice Taylor is an Australian National University alumna who graduated with a Bachelor of Arts/Bachelor of Laws degree who has particular interest in women’s issues particularly with regard to family, domestic and sexual violence. She is passionate about the significance of access to justice for women, especially in relation to Aboriginal women and women from marginalised backgrounds.

Justice Taylor has noted that following her experience as a Magistrate, she is hopeful that it has placed her in an excellent position to deal with the workload in the Supreme Court and that she is honoured to have the privilege to serve the community in this way.  The ACT Bar Association has commented that Justice Taylor brings an extensive range of experience to the position. She has previously worked as a prosecutor with the Commonwealth and ACT Director of Public Prosecutions and as Deputy Chief Executive Officer of the ACT Legal Aid Commission. Justice Taylor has also been the chair of the ACT women’s Legal Centre for 10 years. In the 5 years she served on the ACT Magistrates Court it is noted that she spent her time displaying her expertise in criminal and civil law cases and a commitment to impartiality and fairness.

In 2019 Justice Taylor was awarded Indigenous Alumna of the Year Award from the Australian National University for her contributions to Aboriginal and Torres Strait Islander rights and access to justice for women. She was inspired to pursue a legal career as she wanted an opportunity to “speak to power with a foundation of knowledge and understanding about the law, in particular as it relates to Aboriginal people”, with her motivation being the chance to contribute to her community. There is no doubt that Justice Taylor’s achievements and recent appointment will inspire many.

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

On Saturday 6 August 2023, Elon Musk, CEO of social media platform ‘X’, formally known as Twitter, released the following post:

“If you were unfairly treated by your employer due to posting or liking something on this platform, we will fund your legal bill.

No limit.

Please let us know.”

This interesting post raises the question: Is it legal for an employer to terminate an employee’s contract because of their posts and likes on social media?

Whilst Musk takes a ‘Freedom of Speech’ perspective, his rejection of ‘wokeness’ must be taken with caution for Australian ‘X’ users and employees. In New South Wales, employees are protected by a set of ethical codes stipulated in the Fair Work Act 2009 (Cth). However, unlike America whereby Mr Musk made his post, Australia does not have ‘Freedom of Speech’ imbedded in its Constitution. Instead, Australia has various laws which restrict speech where prejudice and unfair treatment may occur. The Sex Discrimination Act 1944 (Cth) is a great example of this, which restricts discrimination on the ground of sex, gender identity or intersex status.

Social Media Clauses in Contracts

Due to the accessibility and prevalence of social media use in today’s society, many companies have begun including social media clauses within their contracts of employment. A breach of contractual clause was seen in the infamous case of Israel Folau, whereby Rugby Australia cancelled Mr Folau’s $4 million contract due to alleged homophobia within his Instagram posts. Whist Mr Folau argued unfair dismissal, on the basis that he was merely expressing his Christian faith, Rugby Australia declared they, as employers, hold the capacity to regulate the behaviour of their employers, on and off social media, to ensure that they do not contravene the company’s code of conduct.

What if there is no Social Media Clause?

In February 2022, the Fair Work Commission held valid the summary dismissal of an employee at the Australian Council of Trade Unions, after the man posted derogatory material on Facebook relating to the ‘Black Lives Matter’ movement, homosexuality, antisemitism, and domestic violence.

Whilst the employee argued that the posts were made only to his seventy Facebook friends outside of work hours, the Fair Work Commission held that this was irrelevant, as the posts were, at the end of the day, made publicly.

Therefore, although Mr Musk makes a strong push towards Freedom of Speech, it is important to be careful of what opinions employees express publicly, especially if they are contrary to the values and reputation of your employer!

If you or someone you know wish to discuss this issue further, please do not hesitate to contact our offices on (02) 8917 8700.