The recent uproar around the projection of advertising NSW’s Everest Competition has raised questions with regards to heritage law. The Everest Competition is a horse racing competition with Australia’s largest prize pool of its kind. Sydney Opera house’s management refused the request because it would contravene its policies. The CEO Miss Louis Heroin defended the policy grossly and refused the accede to the request made by Mr Alan Jones on behalf of Everest. The Sydney Opera House policy on elimination of the Opera House sails states;
“No logo or corporate identity shall be permitted to be projected onto the sails, a colour shall not be used to promote a corporate identity. This for a specific artistic purpose in relation to the Sydney Opera House, texts or logos will not be permitted”
However Premier Gladys Berejiklian intervened to allow the promotion of the race and the advertisement was beamed on to the sales of the Opera House as of 9 October 2018. This was based on the argument that the race is an important event for NSW and is crucial to the state’s economy and workforce.
Despite public outrage, including a petition submitted to State Parliament with over 270,000 signatures asking Parliament to overturn the decision, the projection went ahead on 9 October 2018. Approximately 1000 people showed up in protest of the projection chanting and shining torches on the sails to disrupt the advertising.
Sydney Opera House’s Conservation Management Plan states:
Policy 14.3 – Temporary lighting projections: Use of the exterior of the Sydney Opera House, including the shells, for lighting projections is acceptable as long as these are exceptional occasions, non-commercial, infrequent and for a limited period of time, and any equipment or installation required can be erected and completely removed without damage to any fabric. All projections should aim to maintain the legibility of the form of the shells.
The Government’s decision to act in contradiction to the policy reflects a disregard for the authority of the Sydney Opera House Trust who have been established under the Sydney Opera House Trust Act 1961 No 9 (NSW). It is this disregard for the authority of bodies set up for the conservation and management of NSW’s heritage that raises concern about the validity of the Government’s decision.
Part 4 of the Heritage Act 1977 (NSW) outlines the process for the application of an interim heritage order that allows approved peoples to do activities relating to the site. Section 57(1)(g) of the Act states that an approved person must not ‘display any notice or advertisement on the…building.’ The Trust can provide persons with exceptions to these rules, but only where the Minister for the Environment and Heritage publishes the exemption in the Gazette on the recommendation of the Heritage Council according to section 57(2) of the Act. In the decision to display the Everest advertising, no regard was provided to this process. However, the Act does not outline the consequences if the Minister does not follow the process outlined in Part 4 of this act. Whether the Government’s decision can be reviewed remains unclear at this stage.
In response to the 80% of NSW residents who were against the advertisement the Premier stated “a government's role is to find that right balance in making sure that we are promoting NSW."
However, it is even more central to the role of government to ensure they are complying with principles of responsible and good governance.
If you wish to discuss your rights, please do not hesitate to contact Freedman & Gopalan Solicitors.
We are pleased to announce that Freedman & Gopalan has been short-listed as a Finalist in the Lawyers Weekly Women in Law Awards, in the category of:
Boutique Diversity Law Firm of the Year
We take this opportunity to congratulate our clients for this honour and our team for being part of our success!
We especially thank our loyal clients for their incredible ongoing support and their appreciation of our commitment to delivering a personal and high quality service.
The Women in Law Awards recognise female legal professionals who have demonstrated strength and excellence in their field. Lawyers Weekly editor Emma Ryan has said:
Being a woman in the business of law isn’t always easy; however, these finalists represent all of those who have broken down the barriers, challenged the status quo and enhanced the practice of law in Australia for the better. They have gone to incredible lengths to demonstrate exceptional performance in their respective areas of expertise, as well as made an outstanding contribution to their organisations, clients and the community at large.
We are extremely pleased and humbled to have made it this far! Stay tuned; the final results will be announced on Thursday, 22 November 2018.
Thank you all once again!
The ABC Managing Director Michelle Guthrie has recently been fired, only 2 years into her 5-year term. In her initial statement on Monday 24 September she stated that she would consider her legal options.
But what are the legal options when your employment has been terminated?
In the case of Ms Guthrie, her contract was an executive contract, which are typically difficult to challenge, and a termination payment is unlikely. The rules are different for regular contracts.
The Fair Work Act 2009 protects employees from having their employment terminated unfairly. It covers employees earning up to $123,300, but not all casual employees and not all employees in traineeships. It also does not apply to employees on specified term contracts that were not renewed, or employees dismissed in their first 6 months of employment.
Under the unfair dismissal laws in the Act, an employer must have a valid reason to dismiss an employee, such as redundancy. Other valid reasons may include serious misconduct such as theft, or a pattern of misconduct and poor performance. If the reason relates to the employee’s conduct, the employer must have warned the employee and given them a chance to improve, with the knowledge that their employment was in danger. If the dismissal is due to serious misconduct the employee is not entitled to notice of termination, however, in all other situations, employees are entitled to the appropriate notice period, pay in lieu of notice or redundancy pay.
When a dismissal is found to be unfair, the employee may be reinstated to their previous position and paid for the time they were forced to miss. Another option is payment of compensation up to a maximum of six months’ pay.
Section 772 of the Fair Work Act also incorporates the state and federal discrimination laws. A dismissal will be unlawful if the reasons behind it include ethnicity, age, disability, gender, sexual preference, pregnancy, family responsibilities, carer status, temporary absence due to illness or injury, political opinion, union membership or making a complaint about the conditions of employment.
If you have been unfairly dismissed, or have any queries relating to issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.
Recently, the District Court of NSW ordered a solicitor to pay costs to their client. The solicitor Grace represented the Plaintiff, Bennie from 1999 to 2009 in a dispute with the State of NSW. Bennie, a police officer, had informed on another officer engaged in criminal activities, and in 2009 was awarded $2,236,408.00, plus costs.
However, it was when the costs were assessed that this sum began to shrink. More than 6 years after the judgment in 2009, the total bill was reduced to $1,534,234.59. Bennie had already paid more than this amount to his solicitor and Mr Grace was forced to repay $186,141.00.
Subsequently Mr Grace brought proceedings to avoid payment. The District Court did not decide in his favour and ordered that he pay $187,452,34, plus interest from 2009 and the costs of the matters. This could add up to over $500,000.00.
What was already a costly, 10-year litigation against the State of NSW has amounted to a two-decade dispute in which Mr Grace has not received remuneration. This case shows most of all the utmost importance of resolving legal disputes in a timely and cost-effective manner.
Firstly, we take this opportunity to recommend that any cost dispute should be addressed as soon as possible so that issues in relation to facts and outstanding costs matter can in fact be resolved at the earliest with either party being in a position to address the concerns and issues without the time lapse scenario. As outlined in every Tax Invoice issue by a legal firm it would be most prudent if the legal costs are challenged or disputed and a cost application bought at the earliest.
If you have any questions or concerns, please do not hesitate to contact us on 02 8917 8700. We shall endeavour to revert to you at our earliest.
Further misconduct has been revealed by the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.
Commonwealth Bank’s insurance arm has refused to pay out on insurance claims for heart attacks based on the out-dated criterion they use to define ‘severe’ heart attacks. The Royal Commission has heard the CBA’s CommInsure admit to publishing misleading advertising about their cover and to knowing at the time that their definition of heart attack ‘didn’t reflect the universal definition’.
Not limited to heart attacks, CommInsure also refused to pay out for a breast surgery, based on another out-dated definition of ‘radical’ breast surgery which only included mastectomy. Once again, the insurance company’s definition was not found in the publicly available policy documents. In this case, the operation involved a combination of breast-conserving surgery and radiotherapy, which is now commonly used instead of a complete mastectomy. CommInsure had not updated its definition to keep up with medical advancements until 2017, meaning treatments before this year were not covered.
Other companies that have been asked to appear before the Royal Commission in relation to insurance practices include AMP, TAL, REST, Allianz and Youi. What is clear from the findings of the Royal Commission is that misconduct is not limited to any one area in the financial services industry.
If you have been victimised by the misconduct of an insurance company, or have any queries relating to issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.
The list commonly known as the ‘airport watch list’ (although it also applies to international travel by sea) is used by the authorities to prevent the unauthorised removal of a child from Australia.
Children in Australia cannot leave the country without the consent of their parents, and children subject to ongoing parenting proceedings also cannot leave without the consent of the other party or a court order, according to sections 65Y and 65Z of the Family Law Act 1975. Child abduction in breach of these sections is punishable by imprisonment of up to 3 years. If the child’s name is placed on the Family Law Watch List, the departing parent will be stopped and not allowed to leave.
To place a child’s name on the list, one must apply for a court order and if successful, present this order to the Australian Federal Police who can enforce at all international departure points. In granting the order, the Court would consider the best interests of the child, and whether there is a real and immediate risk the child will be removed and not returned to Australia. Also, the order can be unconditional (barring all travel) or dependent on certain conditions being met.
Once a child’s name is on the Family Law Watch List it will remain there until they turn 18, unless limited to a shorter time period. Many names remain on the list long after the threat is gone and failing to apply for a Discharge Order to remove a child’s name can have unintended negative consequences. The children who were once protected under the order may be caused inconvenience and distress if they begin to travel internationally as teenagers, for example on school sports trips or with friends after their HSC exams.
Apart from the Family Law Watch List, another possible solution is to apply for an application under section 67ZD to have the passport of the child and any other concerned person delivered to the court.
If you are concerned about your child’s overseas travel, or you have any queries relating to the issues raised by this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.
What is Domestic Violence? Domestic violence is referred to being violent, abusive or intimidating behaviour in a relationship and includes social, physical, financial, sexual, emotional and mental violence. It does not have to occur within your home as long – as it happens within a relationship, it is deemed and classified to be a ‘Domestic Violence.’
Such an act occurs when someone close to you has the power and control over you and this control/abuse can be expressed in different ways.
Physical abuse:
This is where the perpetrator is hurting victim physically.
Emotional abuse:
This is when someone is emotionally abused and attacks your worth and independence.
Financial abuse:
This is when someone controls your finances and ensures that you are financially dependent on them in a manner you are always obliged to ask them for money. This is also classified as a form of domestic violence.
Social abuse:
This abuse takes place when someone insults or humiliates a partner in front of other people and ensures that the victim is isolated from family and friends and is controlled in what he/she does.
Spiritual abuse:
This form of abuse involves the perpetrator preventing the victim from having his/her own opinions about religion, cultural beliefs and values. This also includes manipulating your thoughts on spirituality in order to make the victim feel powerless.
Do you know someone who is undergoing domestic violence and what can you do about it?
Always reassure the victim that he/she can leave where he/she feel unsafe and that it is urgent that the victim talks to someone who he/she can trust such as a friend, counsellor or social worker. They should talk to the police if they feel unsafe and if their life is in danger. The police are there to protect them.
Kindly also advise the victim to reach out and obtain advice from either their solicitor or call 000 or 1800 RESPECT. Translation services are also provided via 13450 number. Please also check out your rights at www.domesticviolence.nsw.gov.au, phone:1800 656463 (NSW). Kindly remember that if you are a victim, you do not have to put up with the situation believing that you do not have a choice. You do have a choice and at no stage does one need to succumb to these excruciating circumstances.
We are all aware of the recent death of Ms. Kaur at her Glenwood home on 15 January 2018. Her husband Mr. Jagdish Singh was subsequently charged with murder. It was only upon the police investigating the matter, did the unfortunate domestic violence incidents relating to the family become public knowledge. If the community members, family members or friends had in fact known to help Ms Kaur and reach out, maybe her life could have been saved.
If you are aware of anyone or if you are undergoing domestic violence, please contact the emergency hotlines outlined above.
Please also do not hesitate to contact Freedman & Gopalan Solicitors at 02 8917 8700 in order to discuss the situation. All discussions held will of course be kept confidential and you do not have to feel obliged at any stage to put up with it for the sake of family or community.
In the coming weeks the NSW Parliament will debate new laws that would create a new strangulation offence, in an effort to reduce domestic and family violence. Non-fatal strangulation is a key indicator of a fatal attack, with one in four domestic murders preceded by strangulation.
The NSW Crimes Act (1900) already contains two strangulation offences, however less than half of the prosecutions under these laws result in convictions. Under section 37 of the Crimes Act 1900 (NSW) the offence of choking, suffocating or strangulating carries a maximum sentence of 10 years, but first it must be proven that the victim was rendered unconscious or unable to resist, or that the strangulation occurred in the course of an indictable offence, such as sexual assault. Due to this high threshold, many strangulation incidents are prosecuted under section 61 as common assault, which carries a maximum sentence of 2 years.
The new law would only require non-consensual and intentional choking, strangling or suffocating and it would carry a maximum sentence of 5 years.
This new strangulation offence is easier to prove and would mean less strangulations prosecuted as the lesser offence of common assault. It would also be a red flag to authorities regarding future violence when considering ADVOs and granting bail.
If you have experienced domestic or family violence, or have any queries relating to the issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.
“Affray” is where one uses, or threatens to use, unlawful violence towards another person and causes a fear of personal safety, that individual to be upset or frightened. This is covered in Section 93C of the Crimes Act 1900 (NSW).
One can also be guilty of affray if:
- A third person was present at the scene to observe your violence; or
- A third person of reasonable firmness had been present at the scene and was personally affected by this violent behaviour.
Affray can occur in either a private or public place, regardless of whether or not a third party is even likely to have been present at the scene. In the Matter of R v Sharp (1957), the Court outlined that: “if two lads indulge in a fight with fists, no one would dignify that as an affray… whereas if they use broken bottles or knuckle dusters and drew blood, a jury might well find that it was, as a passer-by might be upset and frightened by such conduct.”
This offence carries a maximum penalty of up to 10 years imprisonment. An assault, for example, causing bodily harm only carries a maximum penalty of 5 years. An assault charge carries a maximum penalty of up to 2 year in prison.
The prosecution only needs to prove, by way of evidence, the violent conduct inflicted upon another person. This can be substantiated by video recordings, without the need to identify an alleged victim! Accordingly, affray appears to be increasingly implemented as a charge against individuals, in cases of minor assault. In addition, affray has been raised in instances where the prosecution lacks evidence to prove an assault charge.
In the recent matter of Aouli v R (2012) NSW CCA 104, Mr Aouli did not cause any injury to anyone. However, the Court found that the significant fear was “undoubtedly endanger[ing] members of the public.”
A charge to affray can only be rebutted by proving that the nature of the violence was undertaken as a means of self-defence or under duress. A defence may also be raised on the basis that the conduct could not, or did not, cause any witness to be alarmed.
In the event that you get charged for assault or affray, please do not hesitate to contact Freedman & Gopalan Solicitors (02 8917 8700).