Travelling Overseas? Three key questions you may have overlooked
by Lana Black
Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.
About to jet off to that picturesque location you’ve always dreamed of or take a leap of faith and see where the road takes you? If so, it is important your affairs are in order to make certain your rest and relaxation isn’t interrupted by unwanted nagging thoughts. Here are three simple questions you should answer before setting off on your travels.
Do you have a Power of Attorney?
While you may be leaving behind the hustle and bustle of everyday life to take to your care free oasis, reality is still operating back home. A Power of Attorney is an ideal way to see your financial and business interests are being looked after while you’re away. A Power of Attorney enables you to appoint an attorney (or attorneys) to make business decisions on your behalf. Needless to say, you should not take any risks when appointing an attorney; they must be trustworthy.
The Right to Silence – Is this the beginning of the end for a fundamental right?
Ashleigh John is a Senior Solicitor at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law
New legislation has recently come into effect in New South Wales which is set to change a fundamental right of all citizens – the right to silence.
Until recently, a person charged with an offence could choose not to answer questions posed by an investigating officer, and their silence could not be construed as guilt, or any adverse inference drawn by a judge / jury as a result of their silence, because the right to silence is an important part of the presumption of innocence.
The changes, which came into effect on 1 September 2013, allow a jury and/or a judge to make an adverse inference where a defendant who is being tried for a serious offence does not mention a fact to the investigating officer which in the circumstances they could have reasonably been expected to mention at the time of being questioned, and which they then seek to rely on in their defence at trial.
Safety and discipline in the Workplace
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The Federal Court has considered a case where an employee of Visy, who was both a union member and a health and safety representative under the Victorian OH&S Act, was disciplined. Broadly, Visy formed the view the employee had been obstructive and untruthful in relation to a safety issue relating to some of its forklifts. He was suspended on pay pending investigation and was ultimately issued a final warning to the effect he had been found guilty of serious misconduct and would be dismissed if there was any recurrence. The worker and his union took proceedings against Visy alleging they had taken “adverse action” contrary to the Fair Work Act. The claim was successful although, at the time of writing, a hearing to determine penalty has not yet occurred.
The Court found the worker had exercised a ‘workplace right’ because his actions related to a workplace safety issue. It also found the investigation and later disciplinary action against the worker had been taken as a result of the exercise of that workplace right. That finding was made despite Visy’s managers positively denying this was the reason they investigated the worker; and in the absence of any direct evidence to contradict their evidence. The Court still found Visy had not discharged its ‘reverse onus’ to prove its actions (the investigation, suspension and ultimate disciplining of the worker) were not due to the exercise of a workplace right.
New Workplace Bullying Laws and Threshold Changes
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
Federal Parliament passed laws in late June 2013 introducing anti bullying provisions that apply in workplaces. They will take effect from 1 January, 2014 and will allow employees (as defined) to apply directly to the Fair Work Commission (FWC) for relief. The definition of an employee is fairly broad and includes contractors. If a complaint is proved, the FWC can make a wide range of orders to prevent ongoing bullying, although it can not order reinstatement or make compensation orders.
As is common with legislative amendments that broaden, or appear to broaden, existing rights it is likely that after the new legislation comes into effect there will be a ‘wave’ claims as individuals seek to make use of the new right(s). Larger employers in particular, will probably already have workplace policies to deal with bullying and related conduct; but many smaller organisations may not. As there is a ‘lead-in period’ before the law changes, now would be a good time to revise, or draft, policies to deal with bullying, harassment and similar conduct in the workplace. Having a clear policy that has been communicated to all workers, and which is enforced, will put employers in a better position to avoid indirectly responsible for the conduct of individual workers who do not adhere to the policy.
Gambling at Casinos – The House Wins
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The High Court recently decided a claim by a ‘problem’ gambler, Mr Kakavas, against the Crown Casino in Melbourne. A central claim was that Crown knew he had a gambling problem but that it acted unconscionably in its dealings with him by allowing him to gamble. He lost over $20,000,000.00.
Mr Kakavas had a history of gambling problems and had previously been excluded from Crown. The exclusion was lifted after Crown obtained a psychologist’s report to the effect that Mr Kakavas had overcome his prior gambling problems. Although the exclusion was lifted, Mr Kakavas did not resume gambling at Crown until after he had negotiated some incentives, including the use of Crown’s corporate jet. After he lost his money he sought to characterise those incentives as ‘unconscionable’ incentives offered by Crown to induce him to gamble, knowing that he was at a ‘special disadvantage’. Mr Kakavas suggested he was at a special disadvantage because his need to gamble meant he could not make rational decisions whilst gambling.