Photograph: James Ross, AAP

The infamous saga of Cardinal George Pell continues with another appeal but this time, his final one to the High Court.
The Catholic cleric was sentenced to 6 years of imprisonment and 3 years and 8 months of non-parole period for sexually abusing two choirboys in the 1990s. While his appeal against his child sex abuse convictions was dismissed, Justice Weinberg’s dissenting judgment has been the push for this final appeal based on the grounds of his dissenting opinion.

Pell has to lodge an application for special leave in order to appeal to the High Court within 21 days of the Court of Appeal’s judgment and he is likely to have his next hearing by this year. Should his leave be approved, his appeal is likely to be heard within 4 to 6 months from then.

Currently, Pell is held in a high security cell in the Melbourne Assessment Prison where he is locked up for 23 hours per day. He is to be moved to the Hopkins Centre in Ararat to be imprisoned alongside other ex-priests convicted of varying sex crimes against children.

While Pell’s lawyers argue on the grounds of lack of evidence it is not unusual for cases of sex abuse to have no witnesses to the crime, besides the victims, and for juries to hand their decision through analysing the quality of the statements provided by the victim and how it holds up in cross-examination. Thus, it may be unlikely that the High Court will reverse the judgment. However, in light of the dissenting judgment, more Pell supporters like the Melbourne Archbishop feel further strengthened in their position and hope for Pell’s acquittal in the High Court.

With prevalent institutional sex abuse as indicated by a long line of notorious sex abusers like Father Kevin O’Donnel, anti-abuse advocates like Chrissie Foster believe that Cardinal Pell’s dismissed appeal sends a signal that other victims of institutional abuse will be believed.

More to come if the High Court hears the appeal next year, in 2020.

If you or anyone you know is affected by sexual assault, please call 1800 RESPECT (1800 737 732) or contact Lifeline on 11 13 14. If you would like to discuss your legal options, contact our offices on 8917 8700 or via the enquiry form on this website.

Arguably Australia’s biggest cricket event of the year, the Ashes test series has raised concerns surrounding player safety. Specifically, whether a player should be immediately withdrawn from a match following a blow to the head.

Cricket’s number 2 batter in the world, Steve Smith, who has been Australia’s best batter in the Test series so far, was struck on the neck with a 148km bouncer by England’s fast bowler, Jofra Archer. Smith was then taken off from the ground to undergo a series of ‘concussion tests’ to determine whether he in fact did have a concussion. Smith passed these tests and after 40 minutes following the blow to his head, returned to bat.

The following day Smith woke with a headache and felt ‘groggy’, symptoms of a concussion, and was withdrawn from the Test by the Australian medical team.

New international procedures were implemented following the death of Philip Hughes, who passed away 2 days after being struck in the head which resulted in a traumatic basal subarachnoid haemorrhage.

Symptoms of concussions on most occasions do not occur until hours after the injury, possibly even a few days.

Without the resources of specialised medical staff at hand to determine whether a player should be withdrawn from the game and/or match, what is your opinion if a player from your local cricket team received a blow to the head from a bouncer? Should they be immediately withdrawn?

There are arguments that no risks should be taken with a concussion. However, there is also the argument due to the nature of the sport whereby bouncers are a bowler’s weapon in their arsenal in the strategic game, a player should not be withdrawn on every occasion that they are hit in the head.

If you or anyone that you know has been subject to any injuries as a result of negligence from a sporting body, contact our offices on 8917 8700 to discuss your options.  

Strip searches are the most invasive action police can take without a court warrant.

This week, academics the University of New South Wales have released a report titled ‘Rethinking Strip Searches by NSW Police’. They’ve found that in the last ten years, the number of strip searches has risen dramatically: in 2006 strip searches were used 277 times, but in 2018-19 financial year they were used 5,483 times. In 91% of recorded reasons, police stated they suspected the person possessed prohibited drugs. However, the report argues that the increased strip searches are doing little to tackle serious drug crime.

Police have a broad discretion to conduct searches. Police may conduct a strip search if they have reasonable suspicion to believe that the circumstances are ‘serious and urgent’ enough that a strip search is necessary. So, when empowering police with this power, Parliament intended strip searches to be a last resort. An indication from a drug sniffer dog, when not combined with other factors, such as observation and asking questions, would be insufficient to meet the requirements of a strip search.

What exactly is a strip search?

A general search is when police pat down outer layers of clothing. The police may ask the person to take off their jacket, socks, hat and/or gloves.

Taking off anything more than that is a strip search. If an offer looks down the back of someone’s pants, and down their top, that is a strip search.

Conditions of a strip search:

So a ‘squat and cough’ search at a music festival, with many young people in the same room, who are questioned during the process, is unlawful.

Who is being searched?

45% of all recorded strip searches in 2017-18 financial year were of young people, aged under 25 years old. Children under 10 cannot be strip searched. For children aged 10-17, police must obtain guardian consent unless they think the evidence will be destroyed and the search is ‘urgent’. Case studies have indicated this exception for 10-17 years olds is being abused, and children are being stopped by police and being made to stand in their underwear in public places.

10% of strip searches in the field and 22% of strip searches in custody were Aboriginal and Torres Strait Islander people. This is despite Aboriginal and Torres Strait Islander people being less than 4% of the total NSW population. As with other police powers, there is indication the discretion can be used in a discriminatory way.

What does the report recommend?

One of the major issues identified in the report is a lack of accountability by the police. Data is generally not publicly available. Public accountability and transparency about internal rules and policies of the police would decrease the amount of unlawful searches.

The report also recommends changing the law in relation to strip searches to be clearer about when and how police can conduct strip searches. The law should be clear that police cannot ever search genitals or breasts, and strip searches of children in the field (outside a police station) should be prohibited unless there is a court order.

Read the full report here.

If you think you have been strip searched unlawfully, seek immediate legal advice. Please do not hesitate to contact Freedman and Gopalan by calling 8917 8700 or by filling out the enquiry box.

At Freedman & Gopalan, we facilitate legal dispute resolution, analyse the law, attend Court, liaise with clients and give legal advice. The law is very important to us. So, it is important to reflect on what exactly the law is.

Is law simply the Acts that are passed in Parliament, and the judgments handed down in Court? Or is there something more that defines the law – does it have to uphold justice, equality and other moral values?

This is an issue that one of our clerks has recently been considering in her studies in Berlin. After World War Two, Germany was faced with a very particular and urgent issue. Many of the war crimes and human rights violations that Hitler’s totalitarian regime had carried out, including the mass murder of the Jews of Europe, had been done lawfully. While in power, many oppressive laws had been enacted by the German legislature and enforced by the German courts. So, the question after the war was, could we prosecute people for the terrible things that were done during the war, even if those things were legal at the time?

In the end, German legal scholars and courts decided that yes, they would define law as being the Acts in Parliament and judgments in Court, and everything else that makes up the law, but if a law was 'intolerably unjust', then it would not be lawful. So, people could be prosecuted for the wrongful things they did during the Nazi regime, even if they were technically legal at the time, because those laws were not valid. This was a big change from how we thought about law previously, and is often labelled a “natural law” theory, meaning that the law’s authority is derived, at least partly, from the moral authority of the substance of the law.

Since World War Two, many countries have written human and civil rights into their constitutions, and now laws that contravene those rights will be unconstitutional. So, this "natural law" definition has lost popularity over time because there is less of a need to refer to a higher sense of unwritten justice. However, it is possible that we may need these ideas and philosophies again one day, and it is interesting to consider how Germany dealt with this issue after the Nazi regime collapsed.

Following the news last week that the recently aired Season 11 of Masterchef will be the last one hosted by Gary Mehigan, George Calombaris and Matt Preston, rumours have circulated about the reasons for their departure.

All we know for sure is that contract negotiations broke down between Network Ten and the three judges.

It has been reported that the three judges, each being paid $1 million a year, demanded a 40% pay increase that Network Ten wasn't prepared to accept. However, Matt and Gary have denied that the negotiations broke down because of money.

Many commentators have noted that the timing indicates George Calombaris’ under-payment scandal may have played a role. Calombaris was recently fined a $200,000 ‘contrition payment’ for underpaying hundreds of workers at his restaurants a total sum of $7.83 million. Considering that $200,000 is approximately 2.5% of the $7.83 million Calombaris owed workers, some people have criticised the figure as being too low. The President of the Australian Council of Trade Unions has said “While anyone else would face prison time for theft of millions of dollars, employers routinely steal huge amounts from working people and get away with simply returning the money they have stolen and paying a paltry fine." The pressure on Network Ten from unions to fire Calombaris continued to build in the week leading up to the announcement that the trio of judges was leaving Masterchef. George Calombaris' full interview on ABC's 7.30 will air tonight (31 July 2019), but to see a preview in which he apologises for underpaying staff, click here.

Now we are left with two questions. Firstly, who will host Masterchef next year? Secondly, and more importantly, what is an adequate penalty for such extreme wage theft?

Wage theft is never okay. If you feel like you have not be paid fairly for your work, or that an employer has taken advantage of your labour, please contact Freedman & Gopalan Solicitors on (02) 8917 8700 or via the enquiry form on the website. If you are not sure what is the correct award for your industry, check with Fair Work Australia's Pay Calculator. 

The topic of death is a tricky one to navigate, especially when it is the result of unusual circumstances.

Coroners play an important role in investigating certain deaths, fires and explosions, by collecting and examining evidence and making findings. During this process, coroners must delicately balance the rights of the public and the rights of individuals against each other.

It is important to protect the privacy of individuals, especially the deceased, who can no longer speak for themselves. Coroners must also navigate between the families right to privacy, whilst informing them of the circumstances surrounding their loved ones death.

The process

Once a death is reported, the coroner begins the process of investigating the circumstances of the death to establish the medical cause of death. This may involve a coronial investigation, or an inquest.

Reportable deaths include deaths where:

Coronial investigations or inquest?

(a)          Investigation

Generally, when a death occurs, the death is reported to the coroner by the police, or medical practitioner, who attends the scene.

Once a death is reported, the coroner investigates the circumstances of the death to establish the identity of the deceased and the medical cause of their death. In most cases, the coroner will order an autopsy to help determine how and why the person died. Once the autopsy is complete, the body of the deceased is released to the family for burial and a copy of the coroner’s written findings is sent to the family.

During this period of investigation, the coroner has wide powers of investigation, and can request additional reports or information from police, doctors, engineers as well as professional inspectors and witnesses. A coroner can also decide whether to hold an inquest into the death, either on their own accord or at the request of the family.

(b)          Inquests

An inquest is a court hearing where the Coroner considers evidence to determine the identity of the deceased and the date, place, manner and cause of death of the deceased.

It is important to understand that not all deaths will be the subject of a coronial inquest. Rather, very few coronial investigations proceed to inquest.

An inquest must be held if:

As well as making findings concerning the cause and manner of the death, the Coroner’s Court uses an inquest to make recommendations to Government agencies and regulatory bodies. Such recommendations are aimed at preventing future deaths in similar circumstances.

Consider the inquest into the death of Melissa King. The State Coroner’s Court of New South Wales found that Ms King had died as a result of the hospital system shortcomings. Upon attending Blacktown Hospital, Ms King was treated for vomiting and later died as a result of sodium and fluid overload. In light of these events, the inquiry recommended the introduction of a New Clinical Handover Policy which outlines that core observations of a patient must be conducted at a minimum 3 times per day.

If you have been affected by any of the issues raised in this article, please do not hesitate to contact Freedman & Gopalan Solicitors on (02) 8999 9837 or by email to reception@freedmangopalan.com.au to discuss your legal avenues!

Market darling turned embattled franchisor Domino’s Pizza has become the latest stalwart in the scandal-plagued sector to be hit with a class action lawsuit. The restaurant is currently under fire for allegedly having its franchisee employees work without entitlements including 25 per cent loading for casual work, penalty rates or uniform cleaning allowances. This is because delivery drivers and in-store workers at Domino’s restaurants are not being properly paid under the Fast Food Industry Award and as such, they are being paid less than what they should be paid. According to Retail and Fast Food Workers Union (RAFFWU) secretary Josh Cullinan, who was involved in the investigation into a Fair Work Commission case which terminated more than 20 outdated Domino’s enterprise agreements in late 2017, believes more than 10,000 workers are being underpaid.

Federal Court proceedings against the fast-food giant, alleging franchisees underpaid thousands of workers at its direction, has initiated. The class action seeks the difference between the wage paid under the “inapplicable employment agreements” and relevant Award wages. A Statement of Claim filed with the Court on 24 June 2019 claims Domino’s misled or deceived franchisees, by telling them to pay workers under outdated enterprise agreements for almost five years. It is also alleged that “Domino's misled franchisees who, in reliance upon Domino's representations and conduct, paid their employees in accordance with a number of industrial agreements rather than under the Fast Food Industry Award 2010".

The lead applicant claims compensation against Domino’s for alleged underpayment by the lead applicant’s franchisee employer. Also, the lead applicant has not made any claim against his franchisee employer and no franchisee employer is a party to the action. The documents do not quantify any loss by the lead applicant or the alleged group and thus Domino’s rejects the allegation made in the documents and intends to defend the action.

As of 24 June 2019, the nation’s largest pizza company confirmed it still had not been served with the class action court documents, but it did have an unsealed copy of documents reportedly filed in the Melbourne Registry of the Federal Court Australia on the 24 of June 2019. Domino’s claims it is of the view that “those industrial agreements applied to its franchisees at all relevant times” and that “it did not mislead its franchisee employers as to their employee payment obligations”. Conclusively, the company denies it misled franchisees over employee payments terms and has reiterated plans to defend the class action.

If you think your employer is underpaying their staff, or you have otherwise been unfairly treated in the workplace, please do not hesitate to contact Freedman & Gopalan Solicitors on (02) 8999 9837 or by email to reception@freedmangopalan.com.au to discuss your legal avenues!

 

 

The Australian Competition and Consumer Commission (ACCC) has initiated proceedings in the Federal Court against Samsung Electronics Australia Pty Ltd (Samsung) for breaches of the Australian Consumer Law. The consumer watchdog alleges the company made false, misleading and deceptive representations in advertising the water resistance of various ‘Galaxy’ branded mobile phones across more than 300 advertisements since February 2016. The tech giant has widely advertised on a variety of platforms including social media, online, TV, brochures, radio and sponsored articles about the water resistance of their Galaxy smartphones including the fact that the phones are water resistant up to 1.5 metres deep for 30 minutes (example shown right). The ACCC alleges that these Samsung advertisements falsely and misleadingly represented Galaxy phones as being suitable for use in, or for exposure to, all types of water including in ocean water and swimming pools and would not be affected by such exposure to water for the life of the phone, when this is not the case.

The ACCC claims Samsung did not have a reasonable basis for making the representations because:

Aside from not having a reasonable basis, the ACCC also claims that the representations are false, misleading and deceptive, because the Galaxy phones were not suitable for use in all types of water, and the life of the phones could or would likely be adversely affected if used in water (including non-fresh water)

Samsung itself has acknowledged that water resistance is an important factor when it comes to consumer decisions as this feature has a considerable influence over what mobile phone people will purchase. As such, Samsung’s advertisements are believed to have denied customers an informed choice which in the process gave the company an unfair competitive advantage. Under the Australian Consumer Law, businesses cannot mislead consumers about their product’ capabilities and as Samsung showed their Galaxy phones used is situations they shouldn’t be to attract customers, they are consequently breaking this law.

Samsung intends to defend the proceeding, standing by its marketing and advertising of the water resistance of its smartphones. The ACCC is seeking penalties, consumer redress orders, injunction, declarations, publication orders, an order as to findings of fact and cost.

If you would like to discuss any issues raised in this article, please do not hesitate to contact our team at Freedman & Gopalan Solicitors, on 02 8999 9837 or fill out the enquiry box and we will get back to you ASAP.

 

The impact of increasing greenhouse gas ("GHG") emissions resulting from human activities has driven innovation in market-based solutions, technology development and international law. The signing of the 1997 agreement known as the ‘Kyoto Protocol’, which was set to go into force in 2005, set binding emission reduction targets for the countries that signed it. This consequently resulted in the creation of carbon credits and the mechanism of emission trading.

What are Carbon Credits?

A carbon credit (also known as a carbon offset) is a tradable permit or certificate which grants a holder whether that be a country, company or organisation to produce carbon dioxide or other greenhouse gases. The credit limits the emission to a mass equal to one ton of carbon dioxide, ultimately serving the purpose as a market-oriented mechanism to slow worldwide carbon emissions.

How do Carbon Credits work?

Fundamentally, a carbon credit functions as a permit – issued by a government or other regulatory body which allows the holder to burn a specified amount of hydrocarbon fuel over a specified period. Each carbon credit is valued against one ton of hydrocarbon fuel with each company or nation being allotted to a certain number of credits. These credits function in two ways; the compliance or cap-and-trade market and voluntary market.

Compliance – Government agency puts a cap on GHG emissions for specific entities. Entities are required by law to strictly abide by this limit and are allowed to sell credits to other entities if the entity can cut back on emission below the requirement level required by law.

Voluntary – Any person or entity can balance out their carbon emissions by bankrolling projects that spearhead campaigns geared towards reducing greenhouse gas emissions.

Pros of Carbon Credits:

Cons of Carbon Credits:

If you would like to discuss any issues raised in this article, please do not hesitate to contact our team at Freedman & Gopalan Solicitors, on 02 8999 9837 or fill out the enquiry box and we will get back to you ASAP.

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