The deadline to opt out of My Health Record was extended yesterday to January 31st 2019. The deadline had been set for today – November 15th 2018 – but the Senate approved an extension, after the site crashed when large numbers people tried to opt out before the deadline.

My Health Record has been created on an opt-out basis, meaning that if you do not express your wish not to have a record, a record will automatically be created for you. About 1.15 million people have already opted out online, by telephone and through the mail, 300,000 have opted in, and about 17 million people are expected to be automatically enrolled the deadline passes.

The advantages of a My Health Record

Health Minister Greg Hunt has said such a centralised database was a necessary part of any modern health management system, and says it is arguably the safest system in the world.

Its main advantage is that any registered health provider treating you, who is registered with the Australian Health Practitioner Regulation Agency, can see the record. This includes doctors, pharmacists, physiotherapists, nurses, diagnostic imaging practices, chiropractors, optometrists, dentists and psychologists. While patients can place restrictions online to give only certain people access, these controls can be overridden in any emergency. In an emergency, giving doctors access to medical records may assist them in knowing about your allergies, immunisations and medical history. Essentially, the system is ‘designed to save lives’ according to Federal Health Minister Greg Hunt.

Access also will not be given to employers, despite some fears that potential employees will have their information released without their permission.

The disadvantages of a My Health Record

Since the system was announced, there have been many privacy concerns about who can see the data. The government has proposed legislation that would ensure a patient’s right to permanently delete the record, as well as ensuring that police can only access someone’s medical history with a court order, but this legislation has not yet been passed. There is also debate about the privacy for those aged 14 to 17 and whether their parents should have automatic access. Hobart GP Robert Walker has said he plans on closing his weekly high school clinic which offers mental health support and STI checks for teens, after deciding it was ‘too risky’ under My Health Record.

The issue that has gained the most media attention is the issue of hacking, given that any online record is susceptible to this, regardless of its advanced security system. The Office of the Australian Information Commissioner – the independent regulator of the privacy aspects of the system – recently submitted more than 100 breaches to a Senate inquiry. Also, the director of privacy at Australian Digital Health Agency – the agency behind the My Health Record – quit last month, claiming that the Health Minister Greg Hunt’s office was not taking privacy concerns seriously enough.

Another issue is that not all data is automatically uploaded, despite the aims of the scheme. Two years of data from the Medicare Benefits Schedule, Immunisation Register, Organ Donor Register and Pharmaceutical Benefits Scheme will be automatically uploaded, but otherwise, it is up to doctors to upload the information. Given that most doctors already use their own systems and are often strapped for time, it is questionable whether records will be consistently updated. Moreover, only 86% of GPs are connected to the software that can access My Health.

Ultimately, it is a personal decision for you and your family whether to join the My Health Record or opt out. If you 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.

The Australian Institute of Family Studies estimate 2-5% of older Australians experience elder abuse each year. However, this issue is chronically under-reported due to a lack of understanding and the inability of the victims to seek help in situations of abuse.

The issue of elder abuse will only become more prevalent as Australia’s population ages, and can manifest in a variety of ways:

Elder abuse is most often perpetrated by someone the person trusts, such as a family member, carer or worker in a nursing home, and most importantly, is not always malicious. Elder abuse can arise through sheer lack of thought about how your actions and decisions impact the person you are caring for.

Anyone can take steps to stop an instance of elder abuse. In cases of serious financial abuse, you can also seek assistance from court or tribunal to freeze a bank account, recover stolen money or property or reverse an unfair contract.

If you suspect someone you know is experiencing elder abuse, 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.

The Australian Competition and Consumer Commission (ACCC) commenced proceedings against Optus for breaching section 12DA of the Australian Securities and Investments Commission (ASIC) Act 2001. Allegedly, at least 240,000 consumers have been impacted by a third-party billing service that added a charge for premium content that consumers did not agree to purchasing, such as games, ringtones and votes in TV programs. As Optus did not ask for payment details or verify the account-holder's identity, many charges were accrued without the account-holder’s knowledge, for example by children or other members of their household.

This billing scheme charged customers a total of $195 million and earned Optus $66 million in revenue. Optus has admitted to knowing about the misleading conduct since at least April 2014 and has issued $12 million of refunds so far. Likewise, the third-party providers have provided $19 million of refunds to affected consumers.

The ACCC has sought orders from the Federal Court to hit Optus with a $10 million penalty for their actions. The orders sought in relation to Optus by the ACCC echo the suit placed earlier this year against Telstra, who were penalised $10 million and have refunded more than $9.3 million to customers.

Reforms to the ASIC Act in May 2018 may mean that companies engaged in such conduct in the future could face penalties upwards of $100 million. Such moves towards greater penalties for misconduct committed by large service providers are reflective of a refocussing on the rights of consumers.

In the meantime, consumers on any mobile network are advised to check their mobile accounts, and contact the mobile carrier if they find unauthorised charges. If you have any queries relating to the issues featured in this article, please do not hesitate to contact Freedman & Gopalan Solicitors on 02 8917 8700.

Recently, a store in Kuwait was reportedly closed after its owners were caught sticking plastic eyes on their fish to make them appear fresh. Other fishmongers have responded with using the tagline “without cosmetic enhancements and coloured lenses.”

This incident comes in the same month as news of “fake” honey being sold in supermarkets around Australia. Among those found guilty of producing adulterated honey were IGA’s Black and Gold private brand, Aldi’s Bramwell’s Mixed Blossom private label and Capilano’s Allowrie brand.

Section 18 of the Australian Consumer Law is outlined in the Competition and Consumer Act 2010. It prohibits conduct by corporations in trade or commerce which is misleading or deceptive, as well as that likely to mislead or deceive. Moreover, the doctrine aims to provide consumer protection by preventing businesses from misleading their customers.

The elements required to establish misleading or deceptive conduct are:

  1. The apparent conduct was undertaken during trade or commerce;
  2. The apparent conduct was, in all circumstances, misleading or deceptive;
  3. The claimant/consumer relied on the conduct;
  4. As a result of reliance on this conduct, the claimant suffered a loss.

Parties to a contract cannot exclude liability for misleading or deceptive conduct under Section 18 of the Australian Consumer Law. Terms that purport to do so will be unenforceable, to protect the public interest in ensuring that the statutory remedies are available to persons who are misled or deceived.

This was established in Section 52 of the Trade Practices Act 1974 (Commonwealth) - the modern equivalent of which is Section 18 of the Competition and Consumer Act 2010.

Though there are no pecuniary penalties available for breach of section 18, a breach allows a consumer to seek pecuniary penalties up to $1.1 million from corporations and $220,000 from individuals, pursuant to their rights being followed through at the Australian Competition and Consumer Commission (ACCC). A victim of misleading or deceptive conduct is only entitled to damages if they have suffered los or damage as a result of the conduct. Kindly note that there is a limitation period of 6 years on actions for damage.

If you believe that you have been falsely misled with regards to a product or goods, that you were falsely led to believe the work to be of another quality, you can make a claim pursuant to the Australian Consumer Law rights. If you wish to discuss this matter further, please do not hesitate to contact Freedman and Gopalan Solicitors (8917 8700).

If you are selling a product or service, it is crucial that you do not mislead the public or a reasonable person with regards to the services and goods that you are intending to supply.

https://www.sbs.com.au/news/fish-fraud-googly-eye-trick-forces-shop-to-close

http://www.abc.net.au/news/2018-09-05/accc-launches-investigation-into-fake-honey/10205452

The NSW government is proposing amendments to the current Crimes Act so that anyone who stalks or intimidates another person online could face up to five years imprisonment. This will empower police to arrest perpetrators and make the law clearer for magistrates when making Apprehended Violence Orders.

Stalking or intimidating another person online or via text is commonly known as cyberbullying and includes sending abusive emails, posting threatening messages, pictures or videos online, or repeatedly sending unwanted messages. It can have potentially devastating psychological consequences, especially when victims feel they have no escape from the abuse, and can often go unnoticed as the victim suffers in silence. It affects both children and adults, and up to 98% of victims of domestic and family violence have been subject to online abuse, according to Domestic Violence NSW.

Many have called for tougher penalties for cyberbullying, and these changes only come after the tragic death of Northern Territory teenager Dolly Everett who took her own life earlier this year after sustained online bullying. Her parents Tick and Kate Everett have been tireless in campaigning the government to do more to address online harassment. Many have criticised the cyberbullying laws as being too ‘soft’ and the proposed changes are intended to empower victims and encourage them to take action against cyberbullies.

If you or someone you know needs help, call Lifeline on 13 11 14, or the Kids Helpline on 1800 551 800. If you have any queries relating to the issues featured in this article, please do not hesitate to contact Freedman & Gopalan Solicitors on 02 8917 8700.

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. 

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